Aggressive action is needed to resurrect 4^th Amendment rights 

April 23, 2008 – Are rights really rights if any or all branches of government can grant themselves, or each other, exceptions to the rights so that each or all may justify violating the rights of the people?  Can rights be outweighed in balancing tests?  Does the Bill of Rights allow for exceptions to rights such as “unless outweighed by a compelling state interest”? 

Who exactly holds the title to the statement of rights found in the Bill of Rights – the people or the government?  Does the government grant rights to the people or is the Bill of Rights categorical, with no exceptions?  Is a right a right at all if the government - judicial, legislative, or executive – can grant itself an exception so that it can violate the right? 

According to Jeff Snyder, a New York City attorney and columnist, qualifications or exceptions to rights such as “unless presenting a clear and present danger,” “except to the extent inconsistent with public safety,” or “unless outweighed by compelling state interest” simply are not found in the Bill of Rights. 

In his article, Rights without Exceptions,[1] Snyder wrote, “The statements of rights in the Bill of Rights are categorical and contain no exceptions. This form suggests that the rights referred to do not vary to suit the circumstance, are not to be “outweighed” in balancing tests with other rights or interests, and are not subject to unstated exceptions.”

Yet few, if any rights found in the Bill of Rights have been left unmolested by government.  Exceptions abound.  And most Americans, deep down inside, know it’s wrong.  But what can the people do about it?  Meaningful resistance to the erosion, and in some cases, elimination of certain rights has been absent.  Like sheep to the slaughter, the majority of people believe that they have been rendered helpless to fight for their rights.  The belief is false of course – but it is easier to comply and complain than to organize and change. 

Any of us that have been entrapped by a police roadblock – sobriety checkpoint, license checkpoint, vehicle safety checkpoint, insurance checkpoint – even if apathetic, understand that such police action is unattractive, un-American, and an affront to liberty and freedom.  But the Supreme Court ruled these types of police tactics to be constitutional because of the state’s compelling interest in relationship to public safety.  But what happens when the Supreme Court is wrong as it is in this ruling?  Can a right be nullified by wrong rulings even if the ruling comes from the highest court in the land? 

Snyder asks this important question.  “Are our rights in fact subject to “reasonable” regulation in the interest of public safety or for other good purposes?”  He also questions whether our rights are to be subject to majority rule.  For example, in 1990, when the Supreme Court ruled 5 to 4 in favor of sobriety checkpoints,[2] it created an exception, by majority rule, to the 4^th Amendment.  The majority opinion cited the state’s so-called "grave and legitimate" interest in curbing drunken driving as reasonable, and therefore cause to gloss over the purpose and intent of search and seizure protections guaranteed by the Bill of Rights.  

Snyder explains that this type of concession to moderation or reasonableness is fatal to the right – in this instance, 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. 

The Supreme Court has amassed quite the list of so-called legal encroachments upon the 4^th Amendment.  In the process, the rights guaranteed by the 4^th have been weakened to such degree that to not abolish it and start anew, to leave it masquerading as an active right rather than acknowledge that it is a mere relic, a faded vision of liberty and freedom, is to continue perpetrating a great lie upon the American people.  And it is the people alone whose duty it is to restore the protections once guaranteed by the 4^th Amendment. 

Snyder points out that the Supreme Court has interpreted the 4^th Amendment based upon what it claims is its purpose – to protect the people’s “reasonable expectations of privacy”.  This has become the standard by which the court now determines how and when police conduct searches and seizures.  Yet such language, “reasonable expectations of privacy”, is not found in the 4^th Amendment.  It does not show up as a disclaimer or caveat.  Yet somehow the Court has developed this unfounded interpretation and now uses it as a base standard. 

Snyder writes, “So, the law of the land now proclaims that your rights against search and seizure are stronger in your home than in your car. They are better if you own than if you rent and if you build a solid privacy fence around your yard than if you put up a chain-link fence. You have virtually no rights if surveyed from above; since anyone can see what you’re doing from up there, you cannot possibly have a reasonable expectation of privacy. Your rights are stronger if you are a passenger in a car than if you are the driver. Personal papers are more protected than business records; you essentially have no rights in records of your phone calls or banking transactions. A different Fourth Amendment rule for every occasion!

The remarkable upshot of the Court’s interpretation of the Fourth Amendment in light of its purpose is: never before has our government had so much power to search and seize your person, personal information, and property without probable cause and without a warrant.”

Too often, the problem is apparent but the solution remains obscure.  In the case of the 4^th Amendment, the solution really isn’t obscure, just difficult.  Not difficult in an insurmountable way, but difficult in its demand for time, persistence and organization.  We the People have to amend the U.S. Constitution.  But first, we should begin with our state constitutions.  The reason is simple.  Our statehouses are more assessable.  We can initially organize easier county by county than state by state.  And by amending our state constitution, we begin to establish the precedent and protocol to amend the U.S. Constitution.  The process could take years – but five years from now will arrive soon enough.  So the decision has to be made – five years from now will We the People have our protection against warrantless search and seizures restored, or not.

The 4^th Amendment needs to be rewritten.  The word “unreasonable” needs to be removed because the government has used it to pry open our homes, persons, records, and vehicles without a warrant or probable cause when in reality, any search made absent a warrant and probable cause is unreasonable. 

The 4^th Amendment currently reads: 

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. 

State constitutions can enhance rights.  They cannot diminish rights.  For example, the South Carolina Constitution, Article I, Section 10, Searches and Seizures; Invasion of Privacy currently reads:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy 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, the person or thing to be seized, and the information to be obtained.

While similar, the South Carolina Constitution enhances the 4^th Amendment rights by adding the text “and unreasonable invasions of privacy”, and the “information to be obtained” to its state constitution.

To undue what has been done to our search and seizure rights and protections, the suggested language that must become part of our state constitutions and the U.S. Constitution is as follows: 

The categorical right of the people to be secure in their persons, relationships, associations, affiliations, houses, dwellings, vehicles, modes of travel, travel, papers, business and private records, documents, all communications to include but not limited to telecommunication, electronic communication, cellular communication, as well as future forms of communication, financial transactions, effects, to include but not limited to clothing and bags, against searches and seizures and invasions of privacy, shall not be violated, and no Warrants shall issue, and no exceptions, exemptions, limits implied or granted shall be interpreted, implied, or assigned, 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, and the information to be obtained.

AMENDING CONSTITUTIONS

As mentioned, amending state constitutions is easier than amending the U.S. Constitution.  The statehouse is where to start.  Gaining support from existing like-minded organizations within your state is the best method to develop a fast grassroots coalition.  Your state’s Libertarian Party, Constitution Party, Gun Rights groups, motorcycle rights organizations such as ABATE, all could rally behind this most urgent and necessary effort. 

In South Carolina, the process to amend the state constitution is outlined in the state constitution. 

ARTICLE XVI.

AMENDMENT AND REVISION OF THE CONSTITUTION

SECTION 1. Amendments.

Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives. However, for the general election in 1990, revision of an entire article or the addition of a new article may be proposed as a single amendment with only one question being required to be submitted to the electors. The amendment may delete, revise, and transpose provisions from other articles of the Constitution provided the provisions are germane to the subject matter of the article being revised or being proposed. If it is agreed to by two-thirds of the members elected to each House, the amendment or amendments must be entered on the Journals respectively, with the yeas and nays taken on it and must be submitted to the qualified electors of the State at the next general election for Representatives. If a majority of the electors qualified to vote for members of the General Assembly voting on the question vote in favor of the amendment or amendments and a majority of each branch of the next General Assembly, after the election and before another, ratify the amendment or amendments, by yeas and nays, they become part of the Constitution. The amendment or amendments must be read three times, on three several days, in each House. (1976 (59) 2215; 1977 (60) 23; 1979 Act No. 5; 1985 Act No. 6, eff February 26, 1985; 1989 Act No. 11, Section 1, eff February 8, 1989.)

SECTION 2. Two or more amendments.

If two or more amendments shall be submitted at the same time, they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately.

SECTION 3. Constitutional convention.

Whenever two-thirds of the members elected to each branch of the General Assembly shall think it necessary to call a Convention to revise, amend or change this Constitution, they shall recommend to the electors to vote for or against a Convention at the next election for Representatives; and if a majority of all the electors voting at said election shall have voted for a Convention, the General Assembly shall, at its next session, provide by law for calling the same; and such Convention shall consist of a number of members equal to that of the most numerous branch of the General Assembly.

To Amend the U.S. Constitution requires the following:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

So clearly, while dual effort could be applied at both the state and federal level, energy should be primarily focused on getting state constitutions changed to serve as the precedent and catalyst to grow the movement into a national mandate. 

The Muckraker Report would like to receive feedback from our readers on the proposed language change.  However, this effort will fail if there is any concession whatsoever that the state has compelling interest to create exemptions and exceptions to a right.  In debate with elected officials, this will become a talking point.  Under no circumstances should the concession be made.  The state has no compelling interest because the state does not exist to keep people safe.  The state exists to keep people free and uphold the rule of law without breaking the law by violating rights. 

Ask your elected officials where in his or her oath of office does it suggest that he or she is to keep people safe.  Their oath is to protect and defend the state constitution and the U.S. Constitution.  Creating public safety exceptions to rights is not part of the job description – despite their objections!

For example, the South Carolina Oath of Office reads:

"I do solemnly swear (or affirm) that I am duly qualified, according to the Constitution of this State, to exercise the duties of the office to which I have been elected, (or appointed), and that I will, to the best of my ability, discharge the duties thereof, and preserve, protect, and defend the Constitution of this State and of the United States. So help me God."

This is the objective and challenge before the people.  To change state constitutions and then the U.S. Constitution to reflect the resurgence and reconstitution of the people’s right to be secure and protected from unwarranted search and seizures – unwarranted if made without a warrant and without probable cause. 

Here’s the proposed change again: 

The categorical right of the people to be secure in their persons, relationships, associations, affiliations, houses, dwellings, vehicles, modes of travel, travel, papers, business and private records, documents, all communications to include but not limited to telecommunication, electronic communication, cellular communication, as well as future forms of communication, financial transactions, effects, to include but not limited to clothing and bags, against searches and seizures and invasions of privacy, shall not be violated, and no Warrants shall issue, and no exceptions, exemptions, limits implied or granted shall be interpreted or assigned, 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, and the information to be obtained.

Eleanor Roosevelt said, “A right is not something that somebody gives you; it is something that nobody can take away.”  Somehow, we lost the rights articulated by 4^th Amendment and our state constitution equivalents.  The government took them away.  It’s time to take them back – no holds barred!