Wednesday, July 8, 2015

Seizing on the Fourth Amendment

As I write, lovingly and fearfully, this series on the Bill of Rights, there is a theme that keeps coming out.  Whether it is evident or not, I keep getting scared, more and more scared, that the blatant contempt this administration has for the Constitution threatens the basic rights the Framers guaranteed to us all in these amendments, and the sacred trust established between the people and their Government explicit in their words.

We think of the Fourth Amendment as "the one the IRS hasn't heard of", meant to protect the citizenry against an intrusive and overly powerful government taking property from them without judicial due process; that, absent a court order demonstrating "probable cause", it just can't walk in and seize property from citizens.

Here is the text:

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

Let's make note of one element by its omission here (and inclusion elsewhere in the Bill of Rights): this Amendment does not confine its reach to acts of Congress.  That means that neither Federal, state or local governments can violate this right; it is the law of the land ("settled law" in the usual Obamaspeak).

In each of the Amendments, we are looking at the consequences to a free society, and the obligations cast upon both the citizen and government.  Surely the burden here is upon government at every level (it is a protective right  for the citizenry) to follow judicially-blessed due process.

Of course, given the propensity of this administration to ignore whatever it find disposable in the Constitution, we have to look at where the cracks are.

What is "unreasonable"?  Does the reasonableness test simply mean that a search or seizure is reasonable as long as a complaining officer presents evidence under oath to a judge, who finds it reasonable to proceed?  The answer, of course, is "yes".  That means that the burden sits with the judiciary to recognize the citizen's constitutional rights and make sound decisions on such requests - and with the police (or, frighteningly, Federal entities with police powers, like the IRS) to present fair rationales for warrants.

Do we trust the judiciary?  Actually, I do.  Admittedly, I also have little interaction with them personally, save a couple turns on juries and a peculiar incident with a car that I had long-since sold, that the records of the Commonwealth of Virginia still thought I owned (the judge cleared all the tickets).  However, despite the occasional story that reflects a pretty broad spectrum of opinions on USA benches, I have no reason to doubt their respect for their office and the citizenry they protect.

Do we trust the Justice Department?  This particular Justice Department sends representatives to the funeral of a convenience-store robber, but sits idly by when the mayor and Council of a USA city -- in this case San Francisco -- willfully defies Federal law (i.e., the law that Justice is supposed to worry about) by releasing an illegal immigrant and multiple felon without notifying Immigration and Customs Enforcement as the law requires.

This particular Justice Department apparently thinks that the killing of a police-assailant robber in the normal course of police action is worthy of their attention, but the murder of an innocent citizen because of the direct defiance of immigration law by a city government is not.  Loretta Lynch, where the #%&#$% are you?

And we trust the Justice Department not to knock on our doors and take our furniture (or our raisins, as you'll see)? 

The Fourth Amendment is absolutely central to the trust that Americans have that they will be protected as much from government as by government.  It is up to that government to show that it can be relied upon to do so.  Kathryn Steinle's murder, and the immediate inaction by Justice in regard to it, and their inaction toward the City of San Francisco, suggest otherwise.

I believe that the infamous raisin seizure case just decided by the Supreme Court -- even most of the liberal rock-block on the Court saw reason on this -- reflects both the protective nature of the judiciary in regard to the Fourth Amendment (happily) and the lack of such concern on the part of the executive branch (a lot less happily).  The executive, particularly this one, will keep taking until the courts tell him no (yes, I know this seizure process predates this administration, but they fought the case).

There are consequences in a free society, the kind that is willing to legislate, in its very framework, the citizens' right to keep government outside their door and governmental hands off their property barring reasonable criminal suspicion.  We have to have an honorable judiciary willing and prepared to serve as the protector of the citizen from its perch in the middle of the process.  I feel pretty comfortable there.

However, where my possessions, my papers, my houses and my effects are subject to protection from a lawless administration that makes its own rules and calls them law, that makes executive proclamations that invite abuse, that sanctions disobedience even by governmental entities, I am considerably less optimistic.

If my doors weren't locked, would this administration protect my family?

I'm unconvinced.

Copyright 2015 by Robert Sutton
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