The historical record of the Fourth Amendment makes clear that there are no exceptions.
AMERICANS HAVE BEEN SIMMERING WITH ANGER IN RECENT YEARS over revelations about the NSA and FBI hoovering-up everyone’s phone-calls, email, “social media” posts and so on, along with other systematic, institutionalized privacy assaults. This widespread ire has been met with predictable political-class nonsense: lies about the extent of the violations, efforts to downplay the significance of the violations, and arguments that it’s all for a good cause anyway, so everyone should just get over it.
All of these evasions and obfuscations are bad enough, just for the insult thereby offered to an angry America: “We’re not only mugging you, but we also believe you’re too stupid to stay incensed about it if we throw some eyewash your way…”
But the apologias and efforts to placate us aren’t the worst offenses. Far more pernicious is the real assault on our sensibilities and the frayed sinews of our Constitutional structure in the form of repeated assertions by the perps that these privacy violations are “lawful”.
They are not.
There is no such thing as an unwarranted but “reasonable” search
THE RATIONALE FOR ASSERTING THE “LAWFULNESS” of warrantless extra-domicile and electronic searches and seizures [of physical property and data] has rested on reading the Fourth Amendment as allowing for “reasonable” searches and seizures without the need for warrants. But this is a distorted construction of the amendment’s prescriptions and proscriptions; a “constortion”, if I may be allowed to coin a term.
Under the constortion, the word “unreasonable” in the amendment is read as isolated from the remainder of the amendment, or as a qualifier of the warrant specifications that follow. Under the constortion, “unreasonable” is seen as included in order to distinguish an imagined “reasonable” search– which, because “reasonable”, needs no warrant– from an “unreasonable” search, which, because unreasonable, does need a warrant.
But in fact, the historical record makes clear that this is in no way the Framers’ intent– rather, “unreasonable” appears in the amendment solely as an expression of the Framers’ view that ANY search or seizure unauthorized by a warrant secured under stringent standards of testimony and cause is thereby inherently UN-reasonable, and a violation of the amendment.
In the amendment, “unreasonable” means “without reason” (an illuminating synonym of which is “unwarranted”). What follows after that term is not a proscription for how “unreasonable” searches or seizures are to be conducted. Instead, what follows are the requirements for the establishment of an amendment-satisfying reason for a search or seizure.
FRANKLY, THE LANGUAGE OF THE AMENDMENT ALONE makes its real meaning plain enough to anyone reading it fairly, and without a wish to constort in service to a government desire to be let off its Constitutional chain. We’ll go to the historical original-intent records in a moment, but first, let’s just look at that current language:
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.
Fairly read without an intent to misunderstand, there is no way this language can be honestly construed as a Constitutional statement (or even mere implication) that certain searches and seizures can be lawfully conducted without warrants. On the contrary, this language plainly says that right of the people to be secure against searches and seizures without a valid reason shall not be violated, and establishment of a valid reason requires an allegation of probable cause under oath, with particularity, considered by an appropriate officer authorized to issue warrants.
That is, “unreasonable” in the amendment doesn’t mean “out of the ordinary”, “excessive” or “in violation of reasonable expectations of privacy” as federal courts have variously constorted the amendment over recent decades. Rather, “unreasonable” means just what is says: “conducted without a properly-established reason,” and is followed by the requirements by which a valid reason must be established.
However, my perceptions and arguments of the proper reading of the amendment’s language needn’t be relied upon to make my case. The writings the Founders and Framers provide all the clarification needed against even the most willfully obtuse reading.
The historical records are clear and definitive
LETS LOOK AT THE LANGUAGE of some contemporaneous alternative versions of the Fourth Amendment. Keep in mind that these measures reflect the fact that at the time it was understood that some kind of warrant was required for any search or seizure, which was why the colonial-era British went to the trouble of issuing “general warrants” even when intending to conduct searches unsupported by sworn allegations and particularity.
Here, as a first example, is the Fourth Amendment counterpart from the Declaration of Rights in the Pennsylvania Constitution of 1776:
That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted.
Consolidated, this reads: “[T]he people have a right to be free from search and seizure [of any kind– houses, papers and possessions, with no limiting specifications provided], and therefore warrants [again, the only mechanism recognized at the time by which any kind of search was permitted] ought not be granted without sworn allegations providing a sufficient foundation, and without particularity.”
Similarly, the Virginia Declaration of Rights, another early version of the Fourth upon which the federal Constitutional amendment was modeled, reads in pertinent part:
That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.
That is, “[S]earch[es]…without evidence [which is to say, testimony, which is to say, sworn]…are grievous and oppressive, and ought not be granted.”
Both of these contemporaneous alternative versions of the Fourth Amendment plainly declare that searches and seizures without sworn allegations and particularity are unreasonable and prohibited. In fact, the Pennsylvania version expressly declares that any search and seizure unsupported by sworn allegations of cause and/or lacking particularity is contrary to the right Constitutionally asserted and secured therein.
James Madison, in arguing before Congress for the inclusion of the Bill of Rights (and, again, speaking in the context of ALL searches and seizures requiring a warrant), described his intent for the Fourth thusly:
The rights of the people to be secured in their persons; their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.
Massachusetts, in its Constitution of 1780, put it this way:
Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.
Plainly, the Framers adopted the Fourth Amendment to ensure that all searches conducted anywhere, at any time and under any circumstances other than arrest for conduct just committed are based on prior establishment of probable cause by sworn testimony, with particularity as to what is to be sought and seized. There IS no “reasonable search” exception that can be construed from the amendment.
The “unreasonable” in the Fourth’s language doesn’t distinguish one kind of search which needs a warrant from another kind that does not. Instead, it serves to label all non-conforming searches as thereby unreasonable and thus barred by the amendment.
The law hasn’t changed, and modern unwarranted searches are illegal
WHAT WAS UNCONSTUTIONAL YESTERDAY is unconstitutional today, absent an intervening amendment. Searches or seizures of any kind– anyplace, anytime and of anything– without a warrant based on a sworn, credible and specific allegation that evidence of a crime will be found are Fourth Amendment violations. There are no exceptions.
“An unconstitutional act is not law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never passed.”
-16 Am Jur 2d, Sec 177 late 2d, Sec 256
P. S. I MENTIONED EARLIER that law-defying courts have constorted a “reasonable expectation” rationale for warrantless searches. This concept merits a little special attention.
The “reasonable expectation” dodge is based on the idea that the government is not restrained by the principle of the Fourth Amendment insofar as it looks at things (or people) who have (as the courts see it) waived their privacy expectations by setting foot outside their shades-drawn, windows-closed homes.
If, the courts reason, you step outside (or send data by means or processes not entirely within your exclusive control), you must or should expect that you or your data will be photographed, followed, eavesdropped-upon or intercepted by government spies. Therefore (goes the argument) such searches are “reasonable” and the government can freely do these things.
This view turns the principle behind the Fourth Amendment on its head. As noted above, there can be no reasonable (and thus permissible) searches or seizures not supported by the requirements specified for a warrant.
However, this “reasonable expectation” argument is also corrupt nonsense on roller skates on its own terms alone. Here’s why:
It is true that you may not have a reasonable expectation that NO ONE ANYWHERE will see anything personal and otherwise private when you step outside or create, send, receive or store data outside your house. But you sure as hell have a reasonable expectation that the government won’t be looking at it without oath-supported probable cause and particularity.
In fact, that you can go about your business in public or in private unmolested by prying eyes and that only your service provider will see your transmitted data absent a proper warrant being issued is the only reasonable expectation. Any alternative expectation would require a patently UN-reasonable belief that the courts have actual authority to turn the Fourth Amendment on its head, and we all know better than that.
THE TRUTH IS SIMPLE, and requires no nonsense about “expectations” (a concept– that the measure of someone’s rights or of the restrictions placed by the Constitution on the state could rest on “expectations”– which is on its face nauseatingly demented).
What’s been going on with the NSA and FBI and who knows what other perps has been a serial felony, apparently committed over and over against each and every American (not to mention a whole lot of foreigners– there’s nothing in the amendment that says it only prescribes government behavior when Americans are the targets of its attentions…). Don’t let creative, self-serving nonsense from the criminals or their co-conspirators fool you into quietly accepting lies that let them off the hook and destroy the rule of law at the same time.
“Resistance to tyranny is obedience to God.”
For more on this subject, see ‘An Unreasonable Assault On The Fourth’ in Upholding the Law and Other Observations