Let's gaze upon the corpse of the Fourth Amendment - Fabius Maximus website

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Summary:  Most of the Bill of Rights has been de facto voided, as Courts sometimes — or often — rely on specious logic to ignore the word’s plain meaning.  A few phrases retain their force, giving us the illusion of liberty (eg, we are well-armed sheep).  Over time the dead area probably will continue to expand, the arrival of the inevitable again surprising us.  Here we look at the corpse of the fourth amendment.

Look, in this place ran Cassius’ dagger through:
See what a rent the envious Casca made:
Through this the well-beloved Brutus stabb’d;
And as he pluck’d his cursed steel away …

Good friends, sweet friends, let me not stir you up
To such a sudden flood of mutiny.
They that have done this deed are honourable:
What private griefs they have, alas, I know not,
That made them do it: they are wise and honourable,
And will, no doubt, with reasons answer you.

Origin of the fourth amendment

The general warrant and writ of assistance were instruments which gave British authorities the power to enter anywhere, and seize any persons or things, at anytime, with little or no regard to any expectation of privacy — with no need to show evidence relating to a specific person or place.  The battle against the general warrant was fought in the courts. Cases such as Huckel v. Money (1763); Leach v. Money (1765); and Entick v. Carrington (1765) laid the foundation of one of the most exciting chapters of legal history. In a triumph for the impartiality of British justice, aristocratic judges returned verdicts against members of their own class — condemning the use of general warrants and creating the concept of unreasonable search and seizures.   (this is a lightly paraphrased version of section 3.01 of the District Court Clerk’s Manual, from this website).

We benefit from this long struggle; the fourth amendment is a legacy bequeathed to us.  The meaning of its words seems clear:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That was then.  This is now, our situation described by an opinion from someone who has a privileged position to watch the Constitution’s death throes.  How many violations of the Constitution and Federal laws can you count in this text?

This is an extraordinary case: Our court approves, without blinking, a police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion and without exigency — in other words, with nothing at all to support the entry except the curiosity police always have about what they might find if they go rummaging around a suspect’s home. Once inside, the police managed to turn up a gun “in plain view” — stuck between two cushions of the living room couch — and we reward them by upholding the search. Did I mention that this was an entry into somebody’s home, the place where the protections of the Fourth Amendment are supposedly at their zenith?
— Dissent by Chief Judge Kozinski of the US Ninth Circuit Court of Appeals,  USA vs Juan Herman Lemus, 18 February 2010

To see the new world we turn to our finest reporter on the front lines, Glenn Greenwald.  An excerpt from his bulletin of October 10.

Speaking of secrecy obsession: U.S. citizen Jacob Appelbaum was identified as a WikiLeaks spokesman last year. Since then, despite being charged with (let alone convicted of) no crime whatsoever, he has — all without any search warrants – had his laptop, cellphone and camera seized at the airport; been repeatedly subjected to detention every time he re-enters the country; had people whose only crime was to appear in his telephone subjected to similar harassment; had orders issued for information showing his Twitter activities and communications; and now, as The Wall Street Journal reports today, has had a secret Order served by the DOJ on Google and another internet provider for an array of information relating to his email activity (including the list of those with whom he has corresponded by email over the last two years: I’m happy to say I’m one of those correspondents).

The Fourth Amendment to the Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and that “no Warrants shall issue, but upon probable cause.” In light of everything the U.S. Government has been able to seize regarding Appelbaum without a single search warrant — laptops, cellphones, cameras, memory sticks, Twitter activity, electronic goods of his friends, interrogation via forcible detention, and now lists of his email correspondents and other information showing his email activity — is there any rational conclusion other than to view that Amendment as an absurd joke?

No, there is no other rational conclusion.  But acknowledging this grim reality would disturb us, so we will ignore the rotting corpse of the Constitution.  Instead we will pretend that all is well, or that America will magically heal without our effort.

There are none so blind as those that will not see.
— ancient proverb

For more information — a look at America’s past

1. Our futures seen in snippets of the past, 16 June 2008 — Great men of the past comment on our situation
2. de Tocqueville warns us not to become weak and servile, 21 July 2008
3. Let’s look at America in the mirror, the first step to reform, 14 August 2008
4. Can Americans pull together? If not, why not?, 29 August 2008
5. An important thing to remember as we start a New Year, 29 December 2008 — A great speech from Morpheus to Zion, from we too can learn
6. A wonderful and important speech about liberty, 23 July 2009 — By Judge Learned Hand
7. Another note from our past, helping us see our future, 16 September 2009
8. What’s the big lesson for American from the Bush-Obama years?, 13 March 2010