Guest Column: The Feds vs. the Fourth

Future of Freedom perspective
by Jacob Hornburger

Bill of Rights RedactedThe 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.

Keep in mind that this amendment is directed to federal officials, specifically those in the executive and congressional branches. Our American ancestors knew that the federal government would inevitably attract the types of people who would do the things proscribed by the amendment. Thus, to deal with that threat our ancestors made it clear that whoever was elected or appointed to federal office would be prohibited from engaging in the type of conduct prohibited by the amendment.

What does the Fourth Amendment do? It prohibits federal officials from searching people’s homes, businesses, and personal effects indiscriminately. If a crime has been committed, the feds cannot simply go out and search every house and business in the neighborhood to seek out evidence of the crime. And they cannot search everyone’s things with the aim of preventing a crime.

Instead, the Fourth Amendment requires that to conduct a search of a person’s home or business, they have to first go to a member of the third branch of the government— the federal judiciary — and seek out a search warrant from a judge or magistrate. In order to get such a warrant, law-enforcement officers have to swear out an affidavit specifying the exact nature of the evidence that is being searched for. Moreover, they have to provide sworn evidence that rises to the level of “probable cause” for the judge to consider. If they fail to do those two things, the judge’s responsibility is to deny the application for the search warrant.

Like it or not, that’s the system that our American ancestors put into place with the Fourth Amendment.

That’s obviously not the system that we have been living under for many years, given the massive secret surveillance scheme that has now come to light thanks to former NSA employee Edward Snowden. We now know that the U.S. national security state is doing — and has been doing — precisely what the Fourth Amendment was designed to prohibit. It has been gathering and compiling massive amounts of information about the private affairs of hundreds of millions of people, most of whom, needless to say, have never made the target of a specific search warrant request.

U.S. officials say that such a massive surveillance scheme on everyone is necessary to keep Americans “safe.”

Well, let’s see. If we go back and read the Fourth Amendment, we immediately notice one important thing: Our American ancestors did not provide an exception to the restrictions based on keeping Americans “safe.”

That is, the amendment doesn’t have the following sentence at the end of it: “The provisions of this amendment are null and void in cases where the government is keeping people ‘safe.’”

If our ancestors had added such a provision, then the NSA and its supporters might have a point. But they didn’t.

Is there anything to prevent the advocates of the NSA’s surveillance scheme from seeking a constitutional amendment that modifies the Fourth Amendment to include such a safety exception?

No, there isn’t. Then why shouldn’t the supporters of such a scheme be required to go that route — the route of seeking a “keep people safe” amendment to the Fourth Amendment, rather than the super-secret, illegitimate route that they have taken?

Proponents also say that the 9/11 terrorist attacks provided the feds with the authority to avoid the Fourth Amendment.

Well, let’s see. If we go back and read the amendment, we notice something else important: There is no exception for terrorist attacks in the amendment.

If the amendment had provided such an exception, then the proponents of the NSA’s massive secret surveillance scheme might have a point. But they didn’t. Our ancestors provided no exceptions for terrorist cases or any other crime. So, if proponents of such a scheme don’t like what our ancestors did, why shouldn’t they be required to seek a constitutional amendment seeking the modification of the Fourth Amendment?

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Our American ancestors knew exactly what they were doing. When you see people like Barack Obama, Dianne Feinstein, Peter King, Mike Rogers, and others who are coming to the defense of the massive, secret NSA surveillance scheme that is searching, gathering, and compiling personal information on millions of innocent Americans, you are seeing precisely the types of people that our ancestors knew would end up serving in the federal government and doing the types of things the Fourth Amendment expressly prohibits. You are also seeing precisely why our ancestors believed the Fourth Amendment was absolutely necessary to our freedom, privacy, and well-being.

Remember the wise and immortal words of Justice Louis Brandeis in his dissent in the case of Olmstead v. United States:

Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally SunFLOWeralert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

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