On September 25, 2001 WND ran my article which was the first published suggestion to sunset what was soon to be named “The Patriot Act.” With that sunset still at issue as Congress grapples with renewing FISA, I will share parts of a lengthy yet-to-be published
scholarly article about the origins, purposes, and original meaning of the Fourth Amendment. Hopefully these posts will help readers analyze the current debate. Here is Part One.
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. U.S. Const. amend. IV.
Although frequently overlooked in discussions about the Fourth Amendment, the Amendment expressly protects a right of security against our own government. With all the questions and disputes about what the Fourth Amendment may mean, its words identify its very purpose and acknowledge that government itself is a threat to this right. “The right of the people to be secure” against government is indeed its lodestar. The very purpose of the Fourth Amendment -- its raison d’etre -- must be read as the foundational aspect on which “touchstones” and all other judicial, legislative, or scholarly interpretations and branding rely.
James Otis, in his 1764 masterpiece, “The Rights of the British Colonies Asserted and Proved,” puts the right of security in the broader context of the purposes of government:
The end of government being the good of mankind, points out its great duties: It is above all things to provide for the security, the quiet, and happy enjoyment of life, liberty, and property. There is no one act which a government can have a right to make, that does not tend to the advancement of the security, tranquility and prosperity of the people.
Arguing for the Bill of Rights in 1787 and relying on state precursors, Anti-Federalist Brutus described the understanding at the time that ex ante oath and affirmation for warrants in what was to be the Fourth Amendment is a protection of liberty: “For the security of liberty it has been declared, ‘that excessive bail should not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted — That all warrants, without oath or affirmation, to search suspected places, or seize any person, his papers or property, are grievous and oppressive.’”
The right of security in the four objects (“persons, houses, papers, and effects”) identified in the Fourth Amendment was also at the time of its adoption, and also is now, protected at law against private acts of trespass, which may be described as unlawful encroachment or injury to a property or right for which consent was not given. At the time of the Founding, the remedies for private transgressions of this right were found in tort law, and it is no coincidence that officious violations of the right of security in these objects were remedied in the common law of property and tort such as trespass or replevin. Unlike the Fourth Amendment remedy known as the exclusionary rule, these remedies were available against the government officials or agents personally. Therefore, an understanding of the purposes of the Fourth Amendment begins -- but does not end -- with an understanding of the right of security in property protected at trespass and tort. And just as certain forms of private property have come into existence since the Founding, such as digital “papers and effects,” it is worthy of the Fourth Amendment’s benevolent and important purposes to also consider its application in those contexts.
“Trespass,” as described by the great influence on the Founders, Sir William Blackstone, “in its largest and most comprehensive sense, signifies any transgression or offense against the laws of nature, of society, or of the country in which we live whether it relates to a man’s person, or his property.” Trespass is a broader concept than stepping onto someone’s property, and as explained below, there is a significant interplay between the protection of the four objects of the Fourth Amendment and an overarching protection of other natural law rights.
The security of the people and their unalienable rights was acknowledged as the very purpose of American government. As law over, or governing, government, the Fourth Amendment is security against government trespasses against the four objects. The Fourth Amendment stands between Americans and a “police state.” However, even the most libertarian-minded Americans must acknowledge that as a basis of civil society, the invasion of these rights by government may be necessary from time to time to protect the security of the community. The common law security of the rights in our persons, houses, papers, and possessions against trespasses by private individuals, after all, came with justifiable trespasses for emergency circumstances.
Few in number and circumstances, these justifiable trespasses are inherently reasonable under natural law for the protection of life, limb, and property. One should, for example, be able to enter a burning home to rescue a child without fear of being sued for trespass of entering without consent of the owner, stop and hold a purse snatcher, and detain a felon who is capable of fleeing in a car or boat. The Fourth Amendment is a remarkable attempt to draw the line between protecting the security of the community from private miscreants while securing natural rights against miscreant, malevolent, or even mistaken government acts of trespass.
The notion that the Fourth Amendment protects privacy -- which is not mentioned in the Amendment -- is really no more than a common-sense derivative -- but an understated, imprecise, and imperfect one at that -- of the right of security in the four objects expressly identified: persons, houses, papers, and effects. The common law protected the security of those four objects, or properties, from private trespass, yet the notion of privacy fails to cover the fuller scope and more meaningful protections for which the law and principles of trespass were intended. For persons, it was the trespass of false imprisonment. For houses, that certainly is today the more commonly understood trespass, and the expression “every man’s house is his castle” derives from the early 17th century landmark search opinion in Semayne’s Case reported by Sir Edward Coke. For papers and effects, it was the trespass of asportation (trespass de bonis asportatis), now more commonly known as larceny. Extortion was considered a trespass, and includes the attempted unlawful dispossession of things of value made under threat of prosecution.
There is, of course, no trespass when the possessor of the right consents to the act. I may consent to your entering my house, and even allow you to take one of my books or pictures home with you, whether just to borrow or to keep. Absent my consent, however, taking or carrying away my “stuff” (to use the term of the late comedian George Carlin) constitutes a trespass of asportation. The right of security in four objects that are of an often-highly intimate or private nature for Americans, whether for personal, business, political, or religious purposes, and to which notions of private trespass apply, is the lodestar of the Fourth Amendment governing government acts at the federal level. State versions of the Fourth Amendment govern state government acts, and these same principles apply. The common law and natural right of security of these four objects was thus institutionalized by the federal and state fundamental and paramount laws against government trespass.
This Fourth Amendment right is therefore not just about privacy. The fact that we expose our persons and effects in the public square certainly does (or should) not necessarily eliminate the cause of action for trespass against those objects. Reducing Fourth Amendment protections to concepts such as the expectation of privacy to the exclusion of its other original purposes is therefore too cramped to adequately express the nature of the rights and the trespasses covered by the Amendment. One may commit false imprisonment against another, or the trespass of asportation (carrying away) of another’s possessions even though those objects have less “privacy” in public than had they been sequestered within one’s home or private business office. The act of intrusion on these rights is not based merely on seclusion of the object.
As described by Sir Matthew Hale before the Founding, and chronicled by Professor Laura Donohue in her magnificent work, “The Original Fourth Amendment,” government search and seizure is necessary to protect the security of the community. The security of the inviolable rights is generally not infringed in our constitutional republic as long as the process of the warrant is followed, which implies a lawful purpose of the search (or examination) and seizure. Or, there may be exigent circumstances of a known felon whose danger to the community is severe and who may flee, and therefore the warrant process may be dispensed. Like certain exceptions to private trespass, e.g., entering into a burning building to save life or property, the common law incorporated exceptions to the requirement of warrant or consent to justify or excuse what was otherwise a trespass by the government. These exceptions are based in the reasonableness of keeping the peace and preventing danger in emergency circumstances.
Plain view of an illegality is also in the nature of reasonable exception to the warrant requirement. However, and as explained below, government may have additional, political, and even malevolent motives to trespass against, and examine, our papers and effects, which motives may not be found in breaches of property rights and privacy that are committed by private trespassers. Therefore, the neutral judicial determination of probable cause based in facts presented under oath and affirmation is essential to prevent unlawful government trespass against the security of our liberty when warrants issue. Stated another way, probable cause for warrants was deemed a reasonable justification for government trespass absent the known exceptions.
The common law, of course, had to protect the right of security in our papers and effects from more than just the trespass of asportation. Clever miscreants could otherwise claim they did not “carry away” chattels simply by using coercive or extortionate means to dispossess the owners of their private property when the owners hand over their property against their wishes and without true consent. Administrative subpoenas issued without ex ante probable cause under oath, and ultimately relying on the coercive post hoc threat of contempt for refusal to consent, are an example of clever miscreant government at work. They ignore the reasonableness of the judicial warrant and probable cause requirements, and do not meet any of the reasonable exceptions known to the Founders to transgress this right of security. They therefore are violations of the touchstone of the Fourth Amendment, i.e., reasonableness, and its lodestar, which is the right of security in privately owned papers, under original public meaning.
See the rest of the series here:
U.S. Constitution
Fourth Amendment
searches and seizures
illegal searches
The Patriot Act
The Right of the People to be secure in their persons, houses, papers and effects
warrants
probable cause
oath of affirmation
trespass
exclusionary rule
Founding Fathers
natural rights
police state
privacy
private trespasses
Tort law
common law
plain view