Monday, July 1, 2013

The Fourth Amendment: A Eulogy.

The 4th Amendment of the United States Constitution was the product of the strong aversion American patriots felt toward the King’s writs of assistance. A writ of assistance was a legal document by which agents of the Crown could order common folk such as lock-smiths and shopkeepers to aid them in breaking into the homes of people suspected of crimes. 

In the colonies, writs of assistance were most commonly drawn up if Loyalist merchants suspected that a colonist was trading in goods without the assistance of said Loyalist merchants. If a colonist sought to evade the heavy taxes imposed by the Crown and do business with the French or the Dutch, he would be in violation of the law. To prove the crime, agents of the Crown felt no compunction against invading homes looking for contraband goods. At this moment in history, collusion between government and private business was conducted in broad daylight, because the people were in no position to object or resist.

But here the point is this: when the American patriots drew up the Bill of Rights and added the 4th Amendment, they drew on legal precedents that had entered British law. And I want to draw the reader’s attention to one such precedent: the case of Entick vs. Carrington, of 1765. 
John Entick

Mr. Entick was described – in the colorful language of the day – as a denizen of Grubb Street, which is to say, a reporter. He was, by common knowledge, guilty of the crime of association with persons disfavored by the government. In particular, he was a friend of John Wilkes, a Known Terrorist, which is to say, Mr. Wilkes opposed the arbitrary rule of the king and was willing to speak out about his views.

Agents of the Crown broke into Mr. Entick’s home, pried open his chests and drawers, in search of the writings of John Wilkes. Mr. Entick’s attorney reminded the court that, in the eyes of the law, that the home is a castle, and that the law has no business intruding upon it without probable cause. The court agreed.

The Founders applauded the expansion of liberties afforded by Entick v. Carrington and lamented the fact that they were not fully entitled to the same protections. This was one of the grievances that led to the break with Great Britain. And the case of Entick v. Carrington, historians agree, was on the minds of the Founders when they wrote the 4th Amendment. 

In reflecting on the case of Entick v. Carrington, we see that the 4th Amendment right against search and seizure is bound up inextricably with (1) freedom of association: when people enjoy liberty, they are able to associate with whom they choose, (2) freedom of the press: when people enjoy liberty, journalists are free to interview and become acquainted with the views of people even when they are considered enemies of the government, and (3) freedom from fear of one’s fellow citizens, in that law enforcement officials cannot compel private citizens to become their operatives when pursuing legal action against suspects. 

The connection between the 4th Amendment and freedom of association was underscored in a case involving the National Association for the Advancement of Colored People (NAACP).  Organizers sought to open a branch of NAACP in Alabama; the state marshaled its resources to prevent this from happening. From the standpoint of the state of Alabama, the NAACP would cause “irreparable injury to the property and civil rights of the residents and citizens of the State of Alabama.” Yes, there was a time not so long ago when the equality of blacks and whites was viewed as a threat to the State.
The state not only stopped the establishment of a branch of the NAACP in Alabama but demanded that the organizers hand over a list of members. The list of members was not produced and the case went to court. 

The Supreme Court decided that “Freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the 14th Amendment.” Moreover, 

. . . This court has recognized the vital relationship between freedom to associate and privacy in one’s associations. . . Inviolability of privacy in group associations may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.
To summarize what has been said thus far: an arbitrary government can move to crush dissent by seizing the papers of dissident voices, and by criminalizing the association of citizens with people who are known or suspected of being dissidents. A government based on liberty will not move to stop the voices of dissidents and will not peer into the associations of private citizens, unless it has compelling evidence that a conspiracy to commit specific crimes is afoot. The government’s only interest is in stopping specific crimes and not “discovering” criminal activities for which there is no basis in evidence. 

The case of NAACP v. Alabama – perhaps surprisingly – was a foundation on which Griswold v. Connecticut was built. Griswold is best known as the case which paved the way for Roe v. Wade by arguing that a Right to Privacy is implicit in the U.S. Constitution. Now, opponents of abortion may rankle at the mention of Roe v. Wade, and I do not wish to turn this essay in the direction of a debate about abortion. But I cannot help but take the moment to reflect on the genius of the Court in recognizing that a Right to Privacy exists. Such a right would imply that law-abiding Americans are entitled to freedom from wiretaps and the secret compilation of their phone calls and Internet activities. 

Yet, it must be pointed out that the genius of the Founders and the U.S. Constitution has not been safe against the actions of corrupt Supreme Court justices. That notable champion for arbitrary and tyrannical government, Justice Rehnquist, decided that the government can compel banks to turn over the records of its customers and that bankers can be compelled to act as agents of law enforcement (United States v. Miller, 425 US 435). This is in flagrant disregard of the Founders’ original intentions. And in Miller we see enshrined the corrupt principle that the institutions with which we conduct our day to day business cannot be regarded as our advocates or allies in the protection of our private affairs because there are no private affairs. Not unless you are among the favored few who keeps his or her wealth in offshore bank accounts -- because, the privileged classes will enjoy rights and liberties that the rest of us do not, once our liberties have departed.

A dissenting voice was offered by Justice Brennan, who said, “The customer of a bank expects that the documents, such as checks, which he transmits to the bank in the course of his business operations, will remain private, and that such an expectation is reasonable.” If a bank acts in a fiduciary capacity – that is, as a protector of client confidentiality and the interests of its clients – it will not voluntarily consent to sharing client data. And, by extension, a Supreme Court that is mindful of the 4th Amendment’s original intention will respect a bank’s refusal to turn over client data without a compelling state justification for requesting the data. 

The original Constitution, as compared to the Constitutional case law that has amassed in the many years since patriots fought and died for the right to draft that Constitution, have become two very different things. In the wake of the Miller decision, the 4th Amendment has eroded even further.
The following is evidence to the last point. As declared by the Department of Homeland Security:

The plain view doctrine states that if an officer is lawfully on the premises and sees evidence of a crime, the officer can investigate, even if that evidence has nothing to do with the officer’s reason for being there. Similarly, if agents lawfully conducting FISA surveillance discover evidence of a crime, they may use it to prosecute for that offense. It does not matter whether they thought they would hear evidence of the crime or not.

Think about it. According to this way of thinking, anything that a government spy sees or hears during the secret surveillance of a law-abiding American citizen (and we are all law-abiding, until guilt is proven in a court of law) is now in “plain view.” No email, no telephone conversation, no spoken conversation in a “bugged” room, no purchase, no bank account, is private. We live in a world in which our daily business and daily communications are increasingly dependent on electronic conveyances. We live in a world in which electronic devices can hide among our belongings or peer through the walls of our home. 

It is enough that we associate with people who are considered to be terrorists for the government to peer into our lives. And yet, we live in a world in which a person can be branded a terrorist one day, and a hero the next. Consider that Nelson Mandela was considered, by the US government, a terrorist for some 30 years and is now considered by President Obama to be a hero. George Washington would be regarded a terrorist today, had the American colonists lost the War of Independence.  I believe Edward Snowden to be a hero, and the citizens of many countries share this view, and the governments of some countries have chosen to remain neutral on this point, but our government has chosen to label him an enemy of the state. 

I am old enough to remember when it was the Soviet Union that had a view of “crime” and “guilt” that was shared by very few free countries. And the isolation of the Soviet Union in its idiosyncratic ideas of crime and guilt was proof of its illegitimacy. To reiterate, the Fourth Amendment is key to freedom of association, freedom of thought, and freedom to dissent. If it is properly understood and applied, it offers protections against tyranny. If hollowed-out and respected in name only, it is a sign that tyrants are on the march.

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