When preparing to write about the Fourth Amendment, I figured it should and would be rather straight forward. The government cannot invade your private property without probable cause. That’s it, right?
Wrong.
So, here’s the language of the Fourth Amendment:
“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.”
Historical Context
Historical context is particularly important here because the colonial Americans were no stranger to unwarranted searches into their homes and private property, particularly in the years before the revolution. The British government was prone to issue “general warrants” and “writs of assistance”, particularly as a tool to go after political enemies. These general warrants gave messengers of the Crown the ability to search someone’s home and property without any cause or without belief that someone had committed an offense.
In the colonies, the British government issued writs of assistance which allowed British officers to search colonists’ houses for goods on which taxes had not been paid. The Americans attempted to push back against this in court but lost. This particular form of tyranny is often attributed as one of the leading sparks to the revolution. The Americans felt very strongly that their homes and goods should be off limits to government invasion.
Samual Adams said, “And that the said Constitution be never construed to authorize Congress…to subject the people to unreasonable searches and seizures of their persons, papers or possessions” and was echoed by George Mason who said, “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.”
Modern Day Application
Remember, even without the existence of the Fourth Amendment, Congress is not authorized to makes laws that would allow government to enter into private homes without some form of a warrant.
With that as the backdrop, let’s take a look at how the Fourth Amendment plays out in modern day politics.
James Otis, a lesser known American lawyer and founder said, “Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle.”
In other words, in the same way that a King’s castle must not be invaded, neither should an individual’s home be invaded. His home is his private castle. But the Fourth Amendment details more than just a person’s home, it also lists: “persons, houses, papers, and effects”. This means anything that pertains to an individuals’ privacy, their personal information and livelihood, must be secure from government invasion. In the same way that the founders wanted to make sure their homes and goods were secure from British abuse and invasion, the founders wanted to be sure that all Americans could feel that their own property was secure from American government invasion.
In theory then, the U.S. government has taken the Fourth Amendment to mean that there are legal restraints on government that prevent government from detaining or searching a person’s private property—whether that be their person, their car, their house and the like—without a warrant showing probable cause.
Our government and police force have shifted rather dramatically over 200 years. Initially, the people were supposed to act as their own militia, their own enforcers of the law. Those who were assigned to enforce the law, sheriffs and the like, merely punished lawbreakers but did not engage in preventative measures. In other words, law enforcement did not exist to stop crime from happening but to punish those who committed crime. The issue of warrants and probable cause was therefore less pertinent because the only evidence needed was evidence that a crime had already been committed—not that a crime may be committed.
The police (and CIA, FBI etc) today, unconstitutionally militarized and used by the federal government (not just states), has far exceeded its Constitutional powers, especially in the realm of private property and information (think of all the government technological spying that occurs on a daily basis now).
Some Further Explanation
This quote by Dr. Frieman and Dr. Kerr from the Constitution Center explains why the direct application of the Fourth Amendment is indeed theoretical: “To the extent that a warrant is required in theory before police can search, there are so many exceptions that in practice warrants rarely are obtained. Police can search automobiles without warrants, they can detain people on the street without them, and they can always search or seize in an emergency without going to a judge.”
So, if the Fourth Amendment does not strengthen the Constitution’s limit on government’s ability to unlawfully invade and search our private property, what does the Fourth Amendment do?
It is typically invoked in court cases. In other words, evidence is deemed inadmissible if it is not obtained legally or without a warrant. This can sometimes be highly problematic in cases where the evidence provides the needed proof that the defendant is guilty but is not admissible per the Fourth Amendment.
Beyond that, the Fourth Amendment, in reality, does little to nothing. It’s as if it’s a nice idea and the courts use it sometimes in cases to make Americans “feel” as if the amendment is being protected and followed, when in all practical reality, it’s not.
Consider how much data the federal government can now “invade” as a means of learning about and “protecting” American citizens? It may not be our physical house but it is our “person, papers and effects”.
Frieman and Kerr point out the dilemma, “Another hard question is when a search is acceptable when the government has no suspicion that a person has done something wrong. Lest the answer seem to be ‘never,’ think of airport security. Surely it is okay for the government to screen people getting on airplanes, yet the idea is as much to deter people from bringing weapons as it is to catch them—there is no ‘cause,’ probable or otherwise, to think anyone has done anything wrong. This is the same sort of issue with bulk data collection, and possibly with gathering biometric information.”
Kerr, in another article, asks the hard questions: “What limits does the Fourth Amendment impose on the government getting access to the account records? For example, is it a Fourth Amendment ‘search’ or ‘seizure’ for the government to get what a person posted on his Facebook wall for all of his friends to see? Is it a search or seizure to get the messages that the suspect sent? How about records of what page the suspect viewed? And if it is a search or seizure, how much can the government seize with a warrant? Can the government get access to all of the account records? Only some of the account records?”
These questions haven’t been answered by the Court just yet, and frankly, given the bloated power of the Court, I’m not sure these questions should be answered by the Court.
Conclusion
We seem to have reached a point in America, where we all know and realize that government is looking at our information and tracking us (or at least could if it wanted to), and we’re all just living life as normal anyway. We don’t protest or complain about it. We don’t pressure our representatives to make a change. We don’t write blog posts or articles about it. In fact, I think most people live their lives thinking that their personal property, their castles, are being not being violated at all.
Frankly, I doubt many people think much about the Fourth Amendment. If you watch any popular police or FBI shows, the idea that the show’s protagonist can’t obtain needed information or push their way into the suspect’s house, is ludicrous.
We’re a long way from being the Americans of the Revolutionary Era.
And yet, should the police ever try to shove their way into one of our homes or cars, we’d feel very violated and desperately fight for our [Constitutional, AKA Fourth Amendment] rights.
When it hits home, both literally or figuratively, it would matter. BUT, wouldn’t it be better for the state of our nation to never have to get to that.
Why is the that the threat of losing our guns mobilizes us but the actual reality that the police could invade our homes without probable cause just makes us shrug?
We need to remember our [Fourth Amendment] right, friends. I fear it’s been lost in the worries of security and safety and relegated to less important than our First and Second Amendment Rights. The founders knew what they were doing. Protecting our private property, our personal sphere of living, was vital to them. So much so that even last post’s amendment had a similar ring to it.
Friends, if we don’t have our Fourth Amendment rights, we sure don’t have our First or Second Amendment rights.
It’s about time we start speaking out when we see the Fourth Amendment violated. It doesn’t matter who is suffering the violation, ourselves or our political advesaries. We’re fighting for this right for all Americans…whether they like it or not.
Fellow Americans, defend your castles. Your nation depends on it.
The Liberty Belle
Thank you Dr McMasters.
Of course, thank you for always supporting.
Great read, thank you for your eye opening articles. Being retired law enforcement of 30 years, I can see exactly where you are coming from and I fought fellow agents of their ideas of exigent circumstance.
Thank you for the comment and for your service!
As always, another great read. I always make sure to read every word in your posts. In your writing lies the fine details that I don’t always think about. Thank you very much for taking the time to write. You have a great way of presenting the past, which was based on things learned before hand, bringing that past into the future (our time) and showing the differences between original intent, and todays lack of “applying the details” which has led to a fogging of nearly all of the lessons learned leading up to 1776. You summed it up in one short sentence, a sentence which is most unfortunate! “We’re a long way from being the Americans of the Revolutionary Era.”
Thank you so much! I’m so glad you’re learning. And indeed, we are so far removed from who we once were.