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".

Amendment Three

"No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."

Very few Americans give thought to this amendment, yet its origin lay in the practice of the British military to conscript civilian housing for its soldiers. The Declaration of Independence complains,

• He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
• He has affected to render the Military independent of and superior to the Civil power.
• He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
• For Quartering large bodies of armed troops among us:

and because the Congress had the power to both declare war and raise an army, the States were concerned that the abuses they had suffered before could be repeated.

While this amendment to our Constitution may seem unnecessary today, it is a reminder of our history and the reasons why the Founding Fathers were willing to risk their lives, fortunes, and honor for the cause of freedom. It is one more restriction on the government, and the more tightly the government is bound, the less likely it will hurt the people.

Amendment Two

As free Englishmen, the American colonists could point to a history in which local yeomen were called upon for defense of their towns and for mutual aid when disasters struck. They were the frontline of homeland security, foreign wars being largely the province of knights, nobility, and conscripted serfs.

When the United States came into being, the inhabitants of the States were concerned with being able to defend themselves from attack by a hostile power to the north -- British Canada. Previous to its absorption by the British Empire, that region, as French Canada, had also been a dangerous enemy. American history courses tend to minimize coverage of that time period.

There was also an enemy to the west. One of the reasons specifically given for the Declaration of Independence was the failure of George III to protect the colonies from Indian attack:

"He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions."

From the time of the Pequot War (1635), through the French and Indian War (1763), and on until almost the beginning of the 20th Century, the frontier was a dangerous place where no man, unarmed, could feel safe.

Finally, after independence had been gained from Great Britain, there was also the danger of interstate warfare : a classic case is the Toledo War, in which the Michigan Militia occupied the City of Toledo, Ohio. Thus the States were unwilling to ratify any document which would take away their rights to maintain a militia. The militia was to be at the service of the State governor, and had traditionally been recruited from the general populace and with officers chosen by the troops themselves.

Article I of the Constitution gives to the Congress specific powers, among which are:

• "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
• To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

This, however, was not completely satisfactory to some of the more exposed frontier States. It was objected to by several of the States which claimed that it contained no prohibition on Congress disarming the militias, and the Bill of Rights contained a specific amendment which supersedes that portion of Article I :

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

In District of Columbia v. Heller, No. 07-290 the Supreme Court held 5-4 that the Second Amendment provided for the personal keeping and bearing of arms, stating in the majority opinion,

"...the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

and in response to part of the minority dissent, which focused on both the preconceived notions of courts in settled case law, and the perceived need by some of the Justices for the SCOTUS to interpret the Constitution in view of current fads and whims, further stated,

"A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different."

While I agree with the conclusion of the Court that the Second Amendment guarantees to the individual the right to keep and bear arms for self-defense and sport, I am dismayed that in all the scholarship the construction of the Amendment itself has been misconstrued.

In every accurate transcription of the Second Amendment, there are three commas. Commas are used to set off appositives, noun phrases which identify or define a preceding noun or noun phrase, and the Second Amendment clearly has two appositives. This was pointed out to me through simple sentence diagramming (remember high school English?). "A well regulated Militia" is defined by the Amendment as both "being necessary to the security of a free State" and also as "the right of the people to keep and bear Arms". The concern of the dissenting States was the possibility that the Congress would refuse to support the State militias. The clear intent of the Amendment is "A well regulated Militia shall not be infringed."

Thus the majority opinion of the Court in District of Columbia v. Heller was correct, but based on a faulty reading of the Amendment text. I believe that the Second Amendment establishes an absolute right of the individual (who is the functional unit of any militia) to keep and bear any weapon, without restraint by Congress, and therefore by extension, without restraint by any governmental body in the United States.

Thus, as per the quote by Thomas Jefferson in the previous post with respect to Amendment One, the government's interest in this matter can only legitimately concern itself with an individual's actions.

Amendment One

Congress shall make no law

• respecting an establishment of religion,
• or prohibiting the free exercise thereof;
• or abridging the freedom of speech,
• or of the press;
• or the right of the people peaceably to assemble,
• and to petition the government for a redress of grievances.

The 1st Amendment to the Constitution of the United States is unique. No other nation limits the powers of its government to regulate the free expression of the people to such an extent. People refer to this amendment's provisions as the rights to freedom of the press, and of speech, but the broader implications of this restriction on Congress are often overlooked.

The Constitution of the United States was designed to protect the rights of the people and the States from encroachment by the Union. The oft cited letter of Thomas Jefferson to the Danbury Baptists provides a window into the thinking of the Founding Fathers.

The fear of repression by the State of minor sects was expressed by the Danbury Baptists thusly [emphasis is mine]:

"Our sentiments are uniformly on the side of religious liberty: that Religion is at all times and places a matter between God and individuals, that no man ought to suffer in name, person, or effects on account of his religious opinions, [and] that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor. But sir, our constitution of government is not specific. Our ancient charter, together with the laws made coincident therewith, were adapted as the basis of our government at the time of our revolution. And such has been our laws and usages, and such still are, [so] that Religion is considered as the first object of Legislation, and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights. And these favors we receive at the expense of such degrading acknowledgments, as are inconsistent with the rights of freemen. It is not to be wondered at therefore, if those who seek after power and gain, under the pretense of government and Religion, should reproach their fellow men, [or] should reproach their Chief Magistrate, as an enemy of religion, law, and good order, because he will not, dares not, assume the prerogative of Jehovah and make laws to govern the Kingdom of Christ. " (Danbury Baptist Association, 10-7-1801)

To which Jefferson replied,

"Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties." (T. Jefferson, 1-1-1802, Jefferson's Letter to the Danbury Baptists).

Note that Jefferson's comment about "separation between Church & State" is an afterthought to his insistence that government should not interfere in the rights of the people to express themselves, and is not a restriction on those rights, as was asserted by the Supreme Court in Reynolds v. United States (1878). [For an interesting discussion, see A Wall of Separation].

As to social duties, he wrote, "Every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him." --Thomas Jefferson to Francis Gilmer, 1816. His position appears to be that the natural rights of man, those freedoms guaranteed by our Constitution, make the accomplishing of the social duties possible.

The Founders were well aware of the history of abuses by government toward religious observance, and specifically included the ban on prohibiting the free exercise of religious faith. Many of the European immigrants to the United States have made their pilgrimage because they suffered persecution by the "State Church", or officially recognized religious sect, of their homeland. The nation of Switzerland, vaunted as a pioneer in "democracy", is still a prime example of a European nation which boasts of religious freedom, but which taxes its citizens to subsidize the three recognized major sects.

In the early 1800's, S. H. Frohlich, a Swiss anabaptist leader who suffered intense persecution by the official State church, wrote his treatise Matrimony According to the Word of God. In it he explained why government has no business regulating marriage; while he probably never read Jefferson's writings, he would have undoubtedly agreed with Jefferson's position respecting the First Amendment to our Constitution.

One of the great dangers of democracy is the tendency of a majority to tyrannize a minority, especially in regard to belief systems and practices. The Constitution of the United States thus is specific about protecting personal expression from government. It is for this reason that I oppose all legislation that attempts to criminalize speech, whether in the form of "hate speech", or restrictions on personal opinion in political campaigns. Such legislation clearly violates the First Amendment. I stand with Jefferson in the sentiment, that "the legitimate powers of government reach actions only, & not opinions".

Uncle Samson

The story of Samson is not just a historical tale, but is a parable for students of human nature. If you recall, Samson was a hero of faith, chosen by God from before birth to guide and protect his fellow citizens. Because he was the biggest and baddest dude in town, he took advantage of his natural abilities and lived life to the full. His tale is full of fabulous escapades; he was the unstoppable hero of his day.

Enter Delilah. Samson knew she worked for the Philistines, and he delighted in toying with the danger. He was God's man, even when he didn't act like it. He knew in his heart that he was unstoppable, because no matter how dim the prospects, Samson had always won in the end.

Eventually Samson told Delilah his secret. He no longer took seriously the special calling he had from God. While he slept on her knees, she shaved his head. Then she did what she had done several times before -- she woke him with the news that he was under attack.

Samson jumped up, ready to do his hero thing once again. The story tells us, "He didn't realize that the gift from the LORD had been withdrawn." [Yes, I know that's a loose paraphrase, but so is my whole telling of the tale.] His enemies poked out his eyes, and put him to work as a slave.

The Founding Fathers, though they differed among themselves in exactly what they believed, all had a staunch faith that God (or as some of them put it, following the pattern of John Calvin, Divine Providence) had taken an interest in their fledgling country. He had brought it through the War for Independence, and in their minds, had commissioned them to launch a Union with a backbone of law -- a Republic, with equal justice under the law, and chains upon the government to keep it from eating the peoples' freedoms.

Over 200 years have passed since that Union was launched with ratification of the Constitution by the first 9 States. The Union has grown to 50, and the Constitution has been amended 27 times. Some of the amendments -- the first 10, and numbers 13-15, 19 and 26, have clarified the rights of individuals under the law. Some, like the 16th and 17th, which permitted the imposition of taxes on individuals and made possible the control of elections by national political parties, have had serious unintended consequences.

Like Samson, Uncle Sam has grown careless about his special calling. Our Congress has flirted with an attractive prostitute, the foreign investors on whom it has relied to finance living life to the full. The people trusted Congress with the national credit card, and Congress has run up the bill so high that it cannot be paid in our lifetimes, nor in the lifetimes of our children and grandchildren. It has mortgaged us to the tune of $12,400,000,000,000 -- yes, 12.4 million million dollars -- and is at this moment considering raising its credit limit another 1.9 million million dollars.

The interest alone, paid on T-bills in the first 3 months of fiscal year 2010, was $145,000,000,000. As the risk of our default rises (we are spending much faster than we are taking in tax dollars), the interest rate demanded by our foreign creditors must rise. Our spending, except for national defense, and maintenance of our obligations to our Social Security system, must be frozen in order to avoid financial catastrophe, slavery, and war.

There are those who believe that Uncle Sam can simply wake up, and like Samson, say, "I will go out as at other times before, and find a way out of this mess." They do not realize the depth of the problem. Like Samson, they refuse to face the reality that because of our lack of good stewardship, the gift from the LORD has been withdrawn.

There are those who think that our current situation is similar to that which was faced in the Great Depression. They are wrong. In the Great Depression, we were our own creditors. In this Super Depression, we owe our mortgage to the Chinese and other foreign creditors.

In the very near future, life in America will change drastically. As a Union, we may or may not survive. Will we trade California, or Alaska, or the Pacific Northwest, to escape our mortgage and avoid war with China? On our present course, we cannot pay what we owe. Historically, the Masters of China have shown no compunction when it comes to enslaving hundreds of millions of their own citizens, or even killing tens of millions at a time.

We cannot go back to what used to be, and we have never gone this way before. God is calling America to repentance. Will we return to following our Constitution, or will we sleep in the lap of our Delilah until the Philistines are at the door?