(By Jerry Titus, Part 1 on the Patriot Act deals with the struggle to achieve privacy and property rights. Part 2)
Why is the fourth amendment important? Why do we even have it? Why was it important enough for our founders to include this in the Bill of Right? What specific circumstances caused them to insist that the ‘right to be secure in their persons, house and papers and effects.’ and to limit their Federal Government’s power to conduct searches?
The Semayne case was a landmark case for not only establishing ‘a man’s home is his castle’ – the ‘Castle Doctrine.’ The King and Parliament did NOT have unlimited sovereignty over the individual.
Left to their own forming of government, the people of the Colonies had embraced this new ‘liberal’ notion of individual sovereignty, of a government restrained by law; and incorporated it into not only their formal charters, constitutions and laws, but also their hearts, as a keystone principle of their new found lives of liberty.
Even with the Semayne ruling, the King and his agents brazenly did as they pleased in their pursuits of revenue. The new found liberties that the colonists enjoyed – individual rights, property rights and privacy, were still not the status quo of the day and held no sway with the English monarchy who continued to do as he pleased.
In defiance to the King’s taxes, the Colonists started a black market. They nullified the King’s laws by skirting and often openly ignoring them by trading in contraband goods.
Determined to collect his taxes, King George II and Parliament passed the Excise Act of 1754:
“which gave tax collectors unlimited powers to interrogate colonists concerning their use of goods subject to customs and permitted the use of a general warrant known as a writ of assistance, allowing them to search the homes of colonists and seize “prohibited and uncustomed” goods.
In turn the Massachusetts Assembly countered with laws over ruling the Writs. The battle waged on for four more years between the colonists and their King until 1760, when George the II died, rendering his writs expired.
Seizing advantage of the crisis a group of businessmen in Boston brought suit. In a fiery five-hour speech, James Otis attacked the King’s Writs and Warrants. While losing the battle, Otis’ oratory was a fierce battle cry that was echoed amongst the colonies. In the crowd that day was John Adams, a young man of 25. Later he wrote of the experience:
“The child independence was then and there born, every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance.
Otis’ speech was “as the spark in which originated the American Revolution.”
An examination of the first draft of the Declaration of Independence shows this influence:
he has suffered the administration of justice totally to cease in some of these colonies, refusing his assent to laws for establishing judiciary powers:
he has made our judges dependant on his will alone, for the tenure of their offices, and amount of their salaries:
he has erected a multitude of new offices by a self-assumed power, & sent hither swarms of officers to harrass our people & eat out their substance:
for protecting them by a mock-trial from punishment for any murders they should commit on the inhabitants of these states;
for cutting off our trade with all parts of the world;
for imposing taxes on us without our consent;
for depriving us of the benefits of trial by jury;
Both the Virginia Declaration of Rights by James Mason and the Massachusetts Declaration of the Rights by John Adams contained property rights protection through warrants.
Then in 1787 James Madison, one of the principle authors of the Constitution, added the unequivocal statement of due process to deny unrestrained police powers.
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 Fourth Amendment to the Constitution of the United States of America
Properly understood, the United State Constitution is a contract that specifically limits the United States Government to exactly the limits of its functions. Unfortunately, like so many other sections of the Constitution, the contemporary interpretation of the fourth amendment has become so twisted that is little resembles the original intent.
The Fourth Amendment was specifically written to limit the State in its exercising of Police powers – ‘due process’. It was the result of an almost 200 year struggle of assertion and defense of the individual rights to be free of tyrannical police powers waged by the Monarchs of England.