Amendment Four

"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 was a reaction of the Founding Fathers to police power abuses that allowed public officials to invade private homes to search for items which might be used to incriminate the owners or other occupants. It has been the subject of fierce debate between those who style themselves the champions of personal rights, and those who claim that it has been overly broadly used to coddle criminals.

A major concern is that Fourth Amendment rights are widely misunderstood or even waived; the authority to search can be given to public officials by default if a citizen does not understand where to draw the line. Those close to me know that I often deride and mock the ACLU and its liberal friends, but I recommend several resources that they have made available on-line : BUSTED: The Citizen's Guide to Surviving Police Encounters (FlexYourRights.org), Don't Talk to Cops, Part 1 (Professor James Duane, Regent Law School), and Don't Talk to Cops, Part 2 (Officer George Bruch, Norfolk VA Police Dept.).

The multitude of laws on the books has created a situation where it is nearly impossible for a citizen to avoid breaking one of them. It is not far from the truth to say that the primary cause of crime in the United States is Congress (or, your State legislature, or city council, etc.). In Ohio, it is against the law for a driver to pass another car without giving an audible signal; if you are an Ohio driver, do you blow the horn every time you pass a car on the Interstate? If not, you are breaking the law. That may sound ridiculous, but it is true. When the law was written, there were no multi-lane highways, and the situation was not anticipated. You will not, however, be arrested for that violation unless the cop you just passed has had a really bad day. In fact, if you use your horn while traveling between the sound barriers in a residential area, you might be arrested for breaking the law against disturbing the peace as you comply with the traffic law.

That exposes the crux of the problem. There are so many laws, many of which conflict with others, that if the police were to do their job, by the book, we would all be in jail and traffic would still be backed up from last week as we waited for our tickets to be written out. Thus, the police tend to look the other way (in violation of their oath to uphold and defend the Constitution and the laws of their State) simply because it is impractical to enforce every law. They tend to use their discretion when deciding who to stop and question, and consequently, casual encounters with the police sometimes inadvertently turn into arresting events.

The operative phrase is "unreasonable searches and seizures". So what is a "reasonable" excuse for a search or seizure? The courts have held that if an officer has "probable cause" to think that a crime has been, is being, or is about to be committed, that can be "reasonable". The ability of police to carry out such searches is crucial to our security, especially in view of the possibility of terrorist acts being committed among our midst, and great care must be exercised in limiting their ability to do their job. The danger is that law enforcement officers are just as subjective as the rest of the citizenry, and their perception of an activity may influence their judgment as to probable cause. Coupled with the power of the badge, citizens may unwittingly yield their rights.

There are those who would say, "So what? If you have nothing to hide, why be afraid of a search?" I can think of two reasons immediately. The first is the insult that accrues to being accused of illegal activity by virtue of coming under suspicion because of another individual's perceptions. In times when personal honor was more highly valued, such an accusation would have precipitated violence, possibly a duel to the death. Indeed, that may be the reason why some individuals even today react angrily to such an accusation.

The second reason has to do with the multiplicity of laws created by people who try to force perfection on a human society. Nanny-state governance always takes away freedom from the individual and is usually excused as being "the will of the majority". The person whose unique dreams and desires are crushed by the imposition of democracy will no doubt call it the "tyranny of the majority".

One of the possible partial solutions to the problem is to simply not make so many things illegal. The idea of being secure in "persons, houses, papers, and effects" is strongest in a society where individual liberties have not been restricted. Sometimes those liberties may offend our sensibilities, sometimes they may outrage us, sometimes the liberty that another person has may reduce our own ability to make a monetary gain, and sometimes that liberty may give an individual the opportunity to hurt himself. Freedom is always obtained by the destruction of the power of an oppressor, and often is held at the peril of the possessor.

I believe that the most reasonable way to strengthen and preserve our rights under the Fourth Amendment would be a systematic culling of outdated laws, and repealing of laws which restrict personal liberties. When government requires a citizen to participate in a program, or attempts to protect a person from his/her own actions, or provides relief for the consequences of foolish actions, it ultimately paves the way for the surrender of basic Constitutional rights.

It was pointed out by a reviewer that the examples I cited above were local and State laws, and that there are Federal laws which also need to be reviewed and, if not modified to fit the times and possibly redesigned to be flexible as society's needs change, repealed. These include :

• "hate crimes" laws of all sorts, which create a degree of criminality based on what an accuser believes a criminal's intent to be,
• tax laws which create special "tax courts" not bound by ordinary rules of evidence and procedure,
• any and all laws, whether civil or criminal, in which the accused must pay for his/her legal defense, even if found innocent,
• portions of the Davis-Bacon Act, which allow the Secretary of Labor to arbitrarily set the "prevailing wage", and which clearly violate Amendments One and Fourteen, and
• portions (or the entirety) of the Sarbanes-Oxley Act, which assumes that all business owners are guilty of corruption until they can prove themselves innocent.

Many of these laws were passed as knee-jerk reactions to special interests, and are examples of why a representative republic with limited opportunity to change the law is preferable to a democracy in which emotions allow mob rule to create repressive conditions for not only a minority at one point in time, but for the whole of society over a long period.

It is my hope that in some way I could be instrumental in repealing Federal legislation that unduly restricts the rights of citizens to "be secure in their persons, houses, papers, and effects".