In a previous post, I showed why all people who love the Constitution should oppose Obamacare’s attempt to use the commerce clause to justify mandating economic inactivity. Many people saw this as a partisan issue, and indeed it is mostly the left and Democrats who find common cause in defending Obamacare.
In this post, I will appeal primarily to Republicans and conservatives to take another look at the Constitution and re-consider support for the PATRIOT Act. I hope we will see less partisanship on this issue.
Let us start by considering the 4th amendment. Keep in mind that it was inspired by a government (the British) not respecting the private property rights of American colonists. Drawing on 17th and 18th century natural law rights, the colonists felt that their home was their castle and that the government had no right to search their homes unless the government needed to protect somebody from imminent danger. I would like to remind readers that this desire to protect your home from unreasonable search and seizures is supported by inherent property rights. If your property belongs to the state or the community, you don’t have any property rights. Instead, if it is yours, then the purpose of the government should be to protect, not interfere with, your property rights.
This idea goes all the way back to English law from at least 1604, when Sir Edward Coke, in Semayne’s case, famously stated: “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.” Semayne’s Case acknowledged that the King did not have unlimited authority to intrude on his subjects’ dwellings but recognized that government agents were permitted to conduct searches and seizures under certain conditions when their purpose was lawful and a warrant had been obtained.
One of the primary complaints in the colonies was that British troops used trumped up “general warrants” that allowed them to search whatever and wherever they wanted. Thus the language of the 4th amendment:
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 purpose here is to prevent law enforcement from forcing its way into your home, your business and even your car without probable cause. The reason law enforcement must go to a judge first is to place a layer of protection between you and overweaning state power. Notice that the warrant presented to a judge must describe “the place to be search, and the person or things to be seized.”
The purpose of the 4th amendment could not be more clear: government is meant to protect us from bad guys, not to become the bad guy. If law enforcement has no checks on its powers, it becomes too easy for even well-intentioned police to interfere with your property rights in the name of “enforcing the law.”
What does the PATRIOT act say? Well, among many other things, it says that law enforcement officers can write their own search warrants, called National Security Letters. So, going back to the 18th century, imagine British troops, instead of going to a judge, having their captain write up a “general search warrant” that allows them to burst into your home and search at will for whatever they want. No judge needs to be convinced that what is taking place is legal or contained in any way. The FBI did this more than 1000 times between 2002 and 2007.
The PATRIOT Act was approved in the hysteria following 9/11. One thing history has show us is that civil liberties are the first casualties of war hysteria. Think of opponents of WWI being jailed without cause. Consider the Japanese being sent to concentration camps simply because of their heritage in WWII.
Congress is considering extending the PATRIOT act today. I urge all conservatives to oppose this extension until we have a lengthy debate about all of its provisions. Some of them may be necessary. Others are clearly unconstitutional.
To read more on the Patriot Act, I suggest the following links: