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Conservatives Can Win With 4th Amendment Reforms

Catherine Engelbrecht True the Vote


Senator Mike Lee’s newest book, Our Lost Constitution, has a superb chapter about John Wilkes, who was arrested and his papers seized for criticizing the king.

The Wilkes case from 1763 was impetus for the Fourth Amendment, which until recently may have been the most under-appreciated Bill of Right for conservatives because it was associated with protections for criminals. Now, however, we know better.

Ask conservative hero, True the Vote founder Catherine Engelbrecht. She and her husband’s business were audited and investigated by several government agencies after she began her voter fraud watchdog organization.

What Fourth Amendment author James Madison and other Founders knew was that the Fourth Amendment was protection against what we now call a “police state,” and is essential to protecting religious and political liberty.

Today, with the unprecedented level of attacks on religious liberty, free speech, and free markets, Americans need the Fourth Amendment. Unfortunately, the Fourth Amendment has been shredded.

John Wilkes was like many conservative activists of today complaining about the lawless abuse of power by government. Wilkes, however, was also an elected official in England, and a popular one at that for his courageous stands. His case drew much attention in the American colonies, and influenced the Founders.

I recently explained at American Thinker how the Founders understood that government may not trespass on our “persons, houses, papers and effects.” Indeed, the Fourth Amendment says right there in this quintessentially American Bill of Right that it is about our “security” against lawless government invasions.

Government bureaucrats are today’s massive and politically unaccountable police state. Local police officers are required to obtain warrants from judges for searches and seizures unless there are emergency circumstances or “plain-view” violations of the law. New Deal legislation and FDR’s Constitution-bending court, however, ignored the Fourth Amendment, and gave federal agencies the power to bypass judges and the requirement of “probable cause” by unilaterally issuing their own “administrative subpoenas.”

These “judge-less” warrants are institutionalized violations of the Fourth Amendment, and give government bureaucrats immense power to threaten, bully, and intimidate American citizens and businesses. This results in bureaucrats making law by coerced “consent decrees,” bypassing our guarantee of “republican” government.

Judge-less administrative warrants let unaccountable government bureaucrats violate nearly everything in which we conservatives believe: property rights, religious liberty, the constitutional separation of powers, the rule of law over government.

In deciding not to use judge-less warrants, conservative Utah Attorney General Sean Reyes may have said it best: "The wholesale writing yourself a note to go after that stuff without any check is too dangerous and the potential for abuse becomes too dangerous."

A terrifying admission by President Obama’s Secretary of Homeland Security -- a man overseeing a huge agency with sweeping authority to invade our property rights and privacy without authorization by judges -- makes the point. Secretary Jeh Johnson was asked by Senator Rand Paul at a recent hearing whether the Fourth Amendment applies to judge-less government actions gathering telephone records of millions of Americans. Johnson replied that it was “beyond [his] competence as secretary of homeland security to answer intelligently.”


Fortunately, there’s a proposed solution. Two conservatives in the Virginia General Assembly, Delegate Rich Anderson and Senator Richard Stuart, introduced a “21st Century Fourth Amendment” for Virginia that provides an excellent model for other states and even the federal Constitution. Constitutional conservative stalwart and former Virginia Attorney General Ken Cuccinelli has been instrumental in promoting this “much-needed facelift for the Fourth Amendment,” which not only adds protections for digital property, but would put an end to judge-less administrative warrants.

The government’s institutionalized violations of our property rights and privacy are despised across the political spectrum. As a matter of conservative principles, Fourth Amendment reforms are needed. Politically, they are a winner. 

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