Regarding that 4th Amendment… Some History and Perspective On Where We Are


[For once I give full credit to Wikipedia, and hopefully there is nothing in it that is not factual…]

All block quotes below are from Wikipedia, and all emphasis within block quotes are MINE, and were not in the original.

Please see the previous post for a rev up on this issue of NSA spying on our phone and email activities.

English law

Like many other areas of American law, the Fourth Amendment finds its roots in English legal doctrine. Sir Edward Coke, in Semayne’s case (1604), famously stated: “The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.[2] Semayne’s Case acknowledged that the King did not have unbridled authority to intrude on his subjects’ dwellings but recognized that government agents were permitted to conduct searches and seizures under certain conditions when their purpose was lawful and a warrant had been obtained.[3]

The 1760s saw a growth in the intensity of litigation against state officers, who, using general warrants, conducted raids in search of materials relating to John Wilkes‘s publications attacking both government policies and the King himself. The most famous of these cases involved John Entick, whose home was forcibly entered by the King’s Messenger Nathan Carrington, along with others, pursuant to a warrant issued by George Montagu-Dunk, 2nd Earl of Halifax authorizing them “to make strict and diligent search for . . . the author, or one concerned in the writing of several weekly very seditious papers intitled, ‘The Monitor or British Freeholder, No 257, 357, 358, 360, 373, 376, 378, and 380,’″ and seized printed charts, pamphlets and other materials. Entick filed suit in Entick v Carrington, argued before the Court of King’s Bench in 1765. Charles Pratt, 1st Earl Camden ruled that both the search and the seizure was unlawful, as the warrant authorized the seizure of all of Entick’s papers—not just the criminal ones—and as the warrant lacked probable cause to even justify the search. By holding that “[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave“,[4] Entick established the English precedent that the executive is limited in intruding on private property by common law.[3]

Stay with me on this… it gets really good…

Colonial United States

Homes in the Colonial United States, on the other hand, did not enjoy the same sanctity as their British counterparts, because legislation had been explicitly written so as to enable enforcement of British revenue-gathering policies on customs; until 1750, in fact, the only type of warrant defined in the handbooks for justices of the peace was the general warrant.[3] During what scholar William Cuddihy called the “colonial epidemic of general searches”, the authorities possessed almost unlimited power to search for anything at any time, with very little oversight.[5]

…In mid-January 1761, a group of over 50 merchants represented by James Otis petitioned the court to have hearings on the issue [of writs of assistance – general warrants under another name]. During the five-hour hearing on February 23, 1761, Otis vehemently denounced British colonial policies, including their sanction of general warrants and writs of assistance.[8]Future US President John Adams, who was present in the courtroom when Otis spoke, viewed these events as “the spark in which originated the American Revolution.”[9] However, the court ruled against Otis.[10]

So, this invasion of privacy via fishing expeditions is a BIG DEAL in american history – of even the CONCEPT of America itself.

Seeing the danger general warrants presented, the Virginia Declaration of Rights (1776) explicitly forbade the use of general warrants. This prohibition became a precedent for the Fourth Amendment:[12]

That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.[12]

See now, THIS is good.  Virginia, home to Washington, Jefferson, Madison made it illegal for the government to even COMMAND someone to do such unspecific searches unless evidence of some wrongdoing is presented to the court (the actual issuer of warrants, just like now).  NOTE ALSO THAT THIS IS IN THE YEAR OF 1776.  Some serious stuff was going on that year – colonials getting their dander up over abuses by a government that abused the citizens and their rights.

How is this pertinent to now?

Try this name: Edward Snowden.

He saw this.  Snowden saw “officers” and “messengers” being commanded ALL OVER THE PLACE in his workplace at the NSA to engage in such invasions of the “papers and effects” of the Citizenry.  He saw the violations of the Constitution’s 4th Amendment, and he decided not to accept such commands as legal.  And, with the Constitution begin “The Highest Law of the Land,” if it violates the 4th Amendment, by damned, it IS illegal.  As the judge today (DEC16) ruled.

And not to be outdone, Massachusetts got into the act:

Article XIV of the Massachusetts Declaration of Rights, written by John Adams and enacted in 1780 as part of the Massachusetts Constitution, added the requirement that all searches must be “reasonable” and served as another basis for the language of the Fourth Amendment:[13]

Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.[14]

Again, we have this principle of specificity.  Here the term is “special designation.”  Virginia used the term “particularly.”  In Britain, in Entick’s case, the court ruled that ALL of Entick’s papers being seized made the search illegal – as in “not legal.”

Now here is where we get to how IMPORTANT this Amendment is. . .

Proposal and ratification

After several years of comparatively weak government under the Articles of Confederation, a Constitutional Convention in Philadelphia proposed a new constitution on September 17, 1787, featuring a stronger chief executive and other changes. George Mason, a Constitutional Convention delegate and the drafter of Virginia’s Declaration of Rights, proposed that a bill of rights listing and guaranteeing civil liberties be included. Other delegates—including future Bill of Rights drafter James Madison—disagreed, arguing that existing state guarantees of civil liberties were sufficient and that any attempt to enumerate individual rights risked the implication that other, unnamed rights were unprotected. After a brief debate, Mason’s proposal was defeated by a unanimous vote of the state delegations.[16]

For the constitution to be ratified, however, nine of the thirteen states were required to approve it in state conventions. Opposition to ratification (“Anti-Federalism”) was partly based on the Constitution’s lack of adequate guarantees for civil liberties. Supporters of the Constitution in states where popular sentiment was against ratification (including Virginia, Massachusetts, and New York) successfully proposed that their state conventions both ratify the Constitution and call for the addition of a bill of rights.[17] Four state conventions proposed some form of restriction on the authority of the new federal government to conduct searches.[15]

So, four states – one short of the number required to reject the Consitution – SPECIFICALLY INSISTED upon protections against unlimited federal governmental powers to search citizens, their property, and their papers.

Again, we (not just me, but you and you and YOU) must insist that emails and phone calls DO constitute “papers.” Emails and phone calls are personal expressions of both thought and also assembling with whomever one chooses.  If one’s private letters are one’s papers, then one’s emails (which are, after all only letters sent via electronic means) and phone calls (wherein one assembles electronically with those whom it is inconvenient to assemble in person) are every bit as much one’s papers as private letters.

But let us further – and probably even more so – listen well to these events leading up to the ratification of the U.S. Constitution itself.

And, listening, what do we hear?

We hear a Citizenry, formerly abused by its distant government, which had commanded its officers to invade citizens’ homes, confiscated citizens’ papers, to go on fishing expeditions to attempt to find evidence of crimes, without specificity as to what items, what papers, what evidence was being looked for – or even what crime may have been committed.

These abusive searches were very real to these people, very near in time to them being in a position to implement protections against such abuses.  And what happened?

When the federal government-in-waiting voted down – unanimously! – to reject such protections, the citizens, through their state legislatures, refused to allow it, and threatened to reject the entire U.S. Constitution if such protections were not immediately written into it.

They effectively held the U.S. Constitution for ransom.  Unless it empowered the citizenry against the central government, there would BE no U.S. Constitution.  This was no Tea Party rebellion, of less populated Red states versus high population blue states.  It was Massachusetts, New York, and Virginia – three of the most populous states, fighting for, not a strong central government, but a LESS strong central government, one with LIMITS put on it.

And right in the middle of all of this was the 4th Amendment – the one that could have shot down the entire construct that is the United States of America – before it even got off the ground.

The “Grand Experiment” DEPENDED upon the 4th Amendment.  Else there would BE no Grand Experiment.

And here we are, in this day and age, needing to fight against that Grand Experiment – a Grand Experiment gone wrong.  And on the front lines we have a lawyer, a father, and a young NSA contractor, against what can only be described as the most powerful government the world has ever seen.

Talk about your David and Goliath….

Never doubt that a small group of thoughtful, committed people can change the world. Indeed, it is the only thing that ever has.” 

– Margaret Mead.

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