"They that can give
up essential liberty to obtain a little temporary safety deserve neither
liberty nor safety."
-- Benjamin Franklin, Historical Review of Pennsylvania (1759)
That Pesky Fourth
Amendment
By de Andréa,
Opinion Editorialist for
‘THE BOTTOM LINE’
Warrantless
searches and/or seizures are ‘always unlawful’.
The
historical record of the Fourth Amendment makes it clear, ‘there are no
exceptions’.
When the DHS was formed and it was granted warrantless searches under the pretext of counter terrorism, some indoctrinated programed brainwashed non-independent thinkers adopted the position that, “well, one shouldn’t complain if one has nothing to hide!”
But
the few independent thinking properly educated Americans that are left in the
country like yours truly, have been simmering with anger in recent years over
revelations about the NSA, DHS and FBI tapping everyone's phone-calls, email,
"social media" posts and so on, along with other systematic,
institutionalized privacy assaults.
This
widespread rage has been met with predictable political-class and tyrannical nonsense:
lies about the extent of the violations, efforts to downplay the significance
of the violations, by demonizing those that blow whistles such as James
Snowden, and arguments that it's all for your safety and security anyway, so all
you crazy “Constitutionalists” should just shut up and get over it. May I draw your attention to the quote by Ben
Franklin at the top of this article that reads: "They that can give up essential liberty
to obtain a little temporary safety deserve neither liberty nor safety?" -- Benjamin
Franklin, Historical Review of Pennsylvania (1759). Moreover they will eventually lose both.
All of these evasions and smokescreens
are bad enough, just for the insult thereby offered to an angry America: “We’re not only mugging you, but we also
believe you're too stupid to stay incensed about it, especially if we throw
some legal jargon in your eyes...”
But the apologias and efforts to pacify us aren't the worst offenses. Far
more malicious is the real assault on our sensibilities and
the frayed strength of our Constitutional structure in the form of repeated
assertions by the political elites that these privacy violations are in fact "lawful" and what’s more, they’re for your
own good.
They
are not. They are in fact a gross violation of Constitutional law. If the
People and the States want to change the law, there is a legal provision for
that.
Several years ago I took several
courses in Constitutional law at Hillsdale
University, Hillsdale Michigan. But the most important one
was the history of constitutional law.
In other words the historical intent of all the articles sections and
amendments in and of the U.S. Constitution. This by the way was the point of
view that Supreme Court Justice Antonin Gregory Scalia had before he met with his mysterious
death. He was labeled a renegade because of his traditional view of the
Constitution. It was because he believed it should be applied as the Framers intended.
There
is no such thing as an unwarranted but "reasonable" search my friend.
And those
that tell you that it is necessary in order to make you safe are flat out lying
to you! It is the Fabian Communists way of getting one to be willing to surreptitiously
and incrementally give up ones rights and freedoms, and stealthily subjugating
us all to government tyranny. And they will spin, twist and use our own laws
against us to impose their oppressive ideology on us all.
The rational for asserting the
so-called lawfulness of warrantless extra-domicile and electronic searches and
seizures [of physical property and data] has rested on reading the Fourth
Amendment as allowing for "reasonable" searches and
seizures without the need for warrants. But this is a distorted construction of
the amendment's prescriptions and proscriptions; a "constortion", if
I may be allowed to create a new word or coin a term.
First
let’s read the actual 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.”
Frankly the language of the Amendment
alone makes its real meaning plain enough to anyone reading it fairly, and
without a wish to constort in service to a government and a desire to be let
off its Constitutional chain. We will go to the historical original-intent
records in a moment, but first, let's just look at the language in a
contemporaneous alternative version.
“That the people have a right to hold
themselves, their houses, papers, and possessions free from search and seizure,
and therefore warrants without oaths or affirmations first made, affording a
sufficient foundation for them, and whereby any officer or messenger may be
commanded or required to search suspected places, or to seize any person or
persons, his or their property, not particularly described, are contrary to
that right, and ought not to be granted.”
Under the constortion, the word
"unreasonable" in the amendment is read as isolated from the
remainder of the amendment, or as a qualifier of the warrant specifications
that follow. Under the constortion, "unreasonable" is seen as
included in order to distinguish an imagined "reasonable" search--
which, because "reasonable", needs no warrant-- from an
"unreasonable" search, which, because unreasonable, does need a warrant.
But in fact, the historical record
makes it clear that this is in no way the Framers' intent-- rather,
"unreasonable" appears in the amendment solely as an expression of
the Framers' view that ANY search or seizure unauthorized by a warrant secured
under stringent standards of testimony and cause, is thereby inherently
UN-reasonable, and a violation of the amendment.
In the amendment,
"unreasonable" means "without reason" (an illuminating
synonym of which is "unwarranted"). What follows after that term is
not a proscription for how "unreasonable" searches or seizures are to
be conducted. Instead, what follows are the requirements for the establishment
of an amendment-satisfying reason for a search or seizure.
Fairly read without an intent to
misunderstand, there is no way this language can be honestly interpreted as a
Constitutional statement (or even mere implication) that certain searches and
seizures can be lawfully conducted without warrants. On the contrary, this
language plainly says that right of the people to be secure against searches
and seizures without a valid reason shall not be violated, and establishment of
a valid reason requires an allegation of probable cause under oath, with
particularity, considered by an appropriate officer of the court authorized to issue warrants.
That is, "unreasonable" in
the amendment doesn't mean "out of the ordinary",
"excessive" or "in violation of reasonable expectations of
privacy" as federal courts have variously constorted the amendment over recent
decades. Rather, "unreasonable" means just what is says:
"conducted without a properly-established reason," and is followed by
the requirements by which a valid reason must be established.
However, my perceptions and arguments
of the proper reading of the amendment's language needn't be relied upon to
make my case. The writings the Founders and Framers provide all the
clarification needed against even the most willfully wrongly indoctrinated
minds.
The historical records are clear and
definitive
Let’s revisit the language of some
contemporaneous alternative versions of the Fourth Amendment. Keep in mind that
these measures reflect the fact that at the time it was understood that some
kind of warrant was required for ‘any’ search or seizure, which was why
the colonial-era British went to the trouble of issuing "general
warrants" even when intending to conduct searches unsupported by sworn
allegations and particularity.
Here, as a first example, is the
Fourth Amendment counterpart from the Declaration of Rights in the Pennsylvania
Constitution of 1776:
“That
the people have a right to hold themselves, their houses, papers, and
possessions free from search and seizure, and therefore warrants without oaths
or affirmations first made, affording a sufficient foundation for them, and
whereby any officer or messenger may be commanded or required to search
suspected places, or to seize any person or persons, his or their property, not
particularly described, are contrary to that right, and ought not to be granted.”
Consolidated, this reads: "[T]he
people have a right to be free from search and seizure [of any kind-- houses,
papers and possessions, with no limiting specifications provided], and
therefore warrants [again, the only mechanism recognized at the time by which any kind
of search was permitted] ought not be granted without sworn allegations
providing a sufficient foundation, and without particularity."
Similarly, the Virginia Declaration of
Rights, another early version of the Fourth upon which the federal
Constitutional amendment was modeled, reads in pertinent part:
“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 offence is not particularly described and supported by evidence, are
grievous and oppressive, and ought not to be granted.”
That is, "[S]earch[es]...without
evidence [which is to say, testimony, which is to say, sworn]...are
grievous and oppressive, and ought not be granted."
Both of these contemporaneous
alternative versions of the Fourth Amendment plainly declare that searches and
seizures without sworn allegations and particularity are unreasonable and
prohibited. In fact, the Pennsylvania version expressly declares that any
search and seizure unsupported by sworn allegations of cause and/or lacking
particularity is
contrary to the right constitutionally asserted and secured therein.
James Madison, in arguing before
Congress for the inclusion of the Bill of Rights (and, again, speaking in the
context of ALL searches and seizures requiring a warrant), described his intent
for the Fourth thusly:
“The rights of the people to be
secured in their persons; their houses, their papers, and their other property,
from all unreasonable searches and seizures, shall not be violated by warrants
issued without probable cause, supported by oath or affirmation, or not
particularly describing the places to be searched, or the persons or things to
be seized.”
Massachusetts, in its Constitution of
1780, put it this way:
“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.”
Plainly, the Framers adopted the
Fourth Amendment to ensure that all searches conducted anywhere,
at any
time and under any circumstances other than arrest for conduct just
committed are based on prior establishment of probable cause by sworn
testimony, with particularity as to what is to be sought and seized. There IS no
"reasonable search" exception that can be construed from the
amendment.
The "unreasonable" in the
Fourth's language doesn't distinguish one kind of search which needs a warrant
from another kind that does not. Instead, it serves to label all non-conforming
searches as thereby unreasonable and thus barred by the amendment.
The law hasn't changed, and modern
unwarranted searches are illegal
WHAT
WAS UNCONSTUTIONAL YESTERDAY is unconstitutional today, absent an intervening
amendment. Searches or seizures of any kind-- anyplace, anytime and of
anything-- without a warrant based on a sworn, credible and specific allegation
that evidence of a crime will be found are Fourth Amendment violations.
There are no exceptions.
"An
unconstitutional act is not law; it confers no rights; it imposes no duties; it
affords no protection; it creates no office; it is in legal contemplation, as
inoperative as though it had never passed." -16 Am Jur 2d,
Sec 177 late 2d, Sec 256 John Jay First Chief Justice U.S. Supreme Court.
AS
I MENTIONED EARLIER that law-defying courts have
constorted a "reasonable expectation" rationale for warrantless
searches. This concept merits a little special attention. I.e. the NSA and
James Snowden.
The "reasonable expectation"
dodge is based on the idea that the government is not restrained by the
principle of the Fourth Amendment insofar as it looks at things (or people) who
have (as the courts see it) waived their privacy expectations by setting foot
outside their shades-drawn, windows-closed homes.
If, the courts reason, you step
outside (or send data by means or processes not entirely within your exclusive
control), you must or should expect that you or your data will be photographed,
followed, eavesdropped-upon or intercepted by government spies. Therefore (goes
the argument) such searches are "reasonable" and the government can
freely do these things in violation of the Amendment.
This view turns the principle behind
the Fourth Amendment on its head. As noted above, there can be no reasonable (and
thus permissible) searches or seizures not supported by the requirements
specified for a warrant.
However,
this "reasonable expectation" argument is also corrupt nonsense on
roller skates on its own terms alone. Here's why:
It is true that you may not have a
reasonable expectation that NO ONE ANYWHERE will see anything personal and
otherwise private when you step outside or create, send, receive or store data
outside your house. But you sure as hell have a reasonable expectation that the
government won't be looking at it without oath-supported probable cause and
particularity in accordance with law.
In fact, that you can go about your
business in public or in private unmolested by prying eyes and that only your
service provider will see your transmitted data absent a proper warrant being
issued is the only reasonable expectation. Any alternative expectation
would require a patently UN-reasonable belief that the courts have actual
authority to turn the Fourth Amendment on upside down, and we all know better
than that.
THE
TRUTH IS SIMPLE, and requires no nonsense about
"expectations" (a concept-- that the measure of someone's rights or
of the restrictions placed by the Constitution on the state could rest on
"expectations"-- which is on
its face is nauseatingly demented).
THE
BOTTOM LINE: What's been going
on with the NSA,DHS and FBI and who knows what other perps has
been a serial felony, apparently committed over and over
against each and every American (not to mention a whole lot of foreigners--
there's nothing in the amendment that says it only prescribes government
behavior when Americans are the targets of its attentions...). Don't let
creative, self-serving nonsense from the criminals or their co-conspirators
fool you into quietly accepting lies that let them off the hook and destroy the
rule of law at the same time.
"Resistance to tyranny is obedience to God."
-Thomas Jefferson
NOTE II: Okay, I've done my part. I've done the research,
the assembly of data, the analysis and the accessible presentation. Now you've got to do your part. Contact your elected Officials
here!
You've got to see to it that this
article is read by everyone, from every judge, member of congress and other
public officials to every teenager still in school. You've got to get this
article to your friends, your family and your co-workers. You've got to insist
that this article be read by every lawyer at IJ, Judicial Watch and the ACLU.
If you do your part, together we can
restore the republic and change the world for the better.
"It does not take a majority to prevail... but rather
an irate, tireless minority, keen on setting brushfires of freedom in the minds
of men."
-Samuel Adams
Thanks
for listening my friend!
-
de Andréa
Please pass on this
article to everyone on your email list.
It may be the only chance for your friends to hear the truth.
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