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The Fourth Amendment: What is “Unreasonable?”

The Fourth Amendment protects our privacy and our person from unreasonable infringement by federal agents.

The founding generation had a pretty clear idea of what constituted “unreasonable,” because they experienced it firsthand under the British rule.

Prior to the Revolution, the British claimed the authority to issue Writs of Assistance allowing officials to enter private homes and businesses to search for evidence of smuggling. These general warrants authorized the holder to search anyplace for smuggled good and did not require any specification as to the place or the suspected goods. Writs of assistance never expired and were considered a valid substitute for specific search warrants. They were also transferable.

Writs of assistance were actually contrary to British legal tradition. In 1604, Attorney General of England Sir Edward Coke held in Semayne’s Case that the King did not have unlimited authority to enter a private dwelling.

In all cases when the King is party, the sheriff may break the party’s house, either to arrest him, or to do other execution of the K[ing]’s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors.

Laying out the case, Coke eloquently upheld the sanctity of a person’s home.

The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.

Writs of assistance were a flashpoint in the years leading up to the Revolution. James Otis argued strenuously against their constitutionality in what came to be known as Paxton’s case. He did not prevail, but his fiery oration heavily influenced John Adams and other revolutionary leaders. Otis vividly described the indignity of the writs.

Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

This wanton exercise of this power is not a chimerical suggestion of a heated brain. I will mention some facts. Mr. Pew had one of these writs, and, when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware; so that these writs are negotiable from one officer to another; and so your Honors have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this: Mr. Justice Walley had called this same Mr. Ware before him, by a constable, to answer for a breach of the Sabbath-day Acts, or that of profane swearing. As soon as he had finished, Mr. Ware asked him if he had done. He replied, “Yes.” “Well then,” said Mr. Ware, “I will show you a little of my power. I command you to permit me to search your house for uncustomed goods” — and went on to search the house from the garret to the cellar; and then served the constable in the same manner

With the indignity of British searches fresh in their minds, many delegates to state ratification conventions refused to support the proposed Constitution without a Bill of Rights including a protection against these types of searches and seizures. A 1788 article by a man writing under the pen name “Columbian Patriot” was typical of the arguments.

I cannot pass over in silence the insecurity with which we are left with in regards to warrants unsupported by evidence – the daring experiment of granting writs of assistance in a former arbitrary administration is not yet forgotten in the Massachusetts; nor can we be so ungrateful to the memory of the patriots who counteracted their operation, as so soon after their manly exertions to save us from such a detestable instrument of arbitrary power, to subject ourselves to the insolence of any petty revenue officer to enter our houses, search, insult and seize at pleasure.

The Fourth Amendment was introduced and ratified to prohibit broad, sweeping, arbitrary searches and seizures. It requires that federal agents first obtain a warrant, and that the warrant include specific descriptions of the place they intend to search and exactly what they are looking for.

The feds violate the Fourth Amendment on a daily basis. When the NSA and other federal agencies scoop up our electronic data, emails, phone calls, web browsing history and other private information, they violate the plain language of the amendment. While the technology has changed, these spy-agencies operate in exactly the same manner as the hated British customs agents. They claim broad and arbitrary authority to search and seize, and do so with impunity.

Many justify federal violations of the Fourth Amendment by arguing its necessity to fight “terrorism.” But the Fourth Amendment does not have exceptions. In fact, it was meant to restrain government action in just these situations. When passions run high and fear grips the mind, it is then that we need to fall back on these basic principles. They were meant as a bulwark against emotional decisions made in the moment.

When considered within the historical context, it becomes obvious that the operation of the NSA and other federal spy agencies today represents exactly what the people of the founding era intended to prevent. Today’s surveillance state is the very definition on unreasonable, and it’s up to us to rein it in.

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