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Cuccinelli and Fitzgibbons Call for a Much-Needed Facelift of the Fourth Amendment

Cuccinelli and Fitzgibbons

In an op-ed to today’s Washington Examiner, Ken Cuccinelli, president of the Senate Conservatives Fund and the former attorney general of Virginia and our colleague constitutional lawyer Mark Fitzgibbons, co-author with Richard Viguerie of The Law That Governs Government, came out swinging in favor of a proposed amendment to Virginia’s Constitution.

The proposed amendment to Virginia’s Constitution addresses unreasonable searches and seizures and Cuccinelli and Fitzgibbons say it is a Fourth Amendment for the digital age that cures two wayward Supreme Court decisions and would protect people’s backyards and fields from snooping by government drones.

The Fourth Amendment note the authors, protects our rights to be secure in our private, personal and even most intimate property from government invasion and trespass unless the search and seizure is made because of objective suspicion that the law has been broken. It is what separates America from a police state. Still, Gallup polls show Americans’ fear of their own government is at record levels. Only through good law enforcement on law enforcement itself is government prevented from becoming totalitarian.

The proposed amendment logically extends to digital communications and data the protections of what James Madison’s Fourth Amendment called “papers and effects.” Our most private thoughts and records are now stored digitally, and government has no business in them say Cuccinelli and Fitzgibbons.

It also removes a presumption created through case law about limited and controlled disclosure of our information to third parties. That “third-party doctrine” was criticized by many scholars on both the Left and Right even when we were a paper society. It has also been rejected by at least seven states, with no negative effect on their law enforcement.

In a concurring opinion in the U.S. vs. Jones case in 2012, Supreme Court Justice Sonia Sotomayor stated that the third-party doctrine is especially stale and unreasonable in the digital age. We need clarity that mundane tasks of communicating through private emails or storing data in the cloud are subject to clear constitutional protections against government invasion.

The original Fourth Amendment protects “houses,” and through interpretation, shrubs and other area in the immediate proximity of a house, called the “curtilage.” But your whole property is not included in the protection of the Fourth Amendment observe the authors.

The Framers, however, did not contemplate devices the size of birds that government could use like peeping Toms to spy on our backyards, fields and pastures, so “lands” are included in this 21st century Fourth Amendment.

The rule for citizens is that ignorance of the law is no excuse. The same must apply to law enforcement. The proposed amendment therefore requires reasonable searches and seizures to be based in “valid” law.

Perhaps the most important element of this 21st century Fourth Amendment is that it also specifically lawless bureaucrats.

Cuccinelli and Fitzgibbons note the words of Justice Rutledge who wrote in 1946 (before the administrative bureaucracy had grown into today’s Leviathan) that an administrative investigation “can be expensive, so much so that it eats up men's substance. It can be time consuming, clogging the processes of business. It can become persecution when carried beyond reason.”

The substantial increase in number and power of alphabet soup-named administrative agencies in the 69 years since Justice Rutledge’s comment has given us many bureaucrats untrained in law and good law enforcement. These government agents have been given broad search and seizure powers affecting our lives, lands and businesses through zoning, environmental, occupational and other regulation. Just as before the Fourth Amendment was ratified, government still uses investigative demands to intimidate and silence its critics, including in the nonprofit sector say Cuccinelli and Fitzgibbons.

Virginia state Del. Rich Anderson and Sen. Richard Stuart, who have introduced the amendment in the Virginia General Assembly, will assuredly meet resistance from those who wish to ignore or protect government lawlessness. Their proposed amendment, however, is about good, sound law enforcement protecting our constitutional rights of security and interests of privacy. We urge you to read the full op-ed in today’s Washington Examiner through this link.

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