Friday Constitutional 12 – Amendments 3 And 4
Happy Friday and welcome to the 12th in the Dog’s on-going series looking at the Constitution of the United States. For those of you that are coming in for the first time, this series has been going through the Constitution section by section and discussing the meaning of each. The Dog is not a Constitutional scholar by any means, so this is a layman’s look at the founding document of our nation. If you are interested in the previous essays in this series you can find them at the following links:
Friday Constitutional 1 – Preamble, Sections 1 And 2
Friday Constitutional 2 – Article One, Sections 3 And 4
Friday Constitutional 3 – Article One, Sections 5 and 6
Friday Constitutional 4- Article One, Sections 7 and 8
Friday Constitutional 5 – Article One, Sections 9 and 10
Friday Constitutional 6 – Article 2, Presidential Powers, Sections 1-3
Friday Constitutional 7 – Article Two, Presidential Powers
Friday Constitutional 8 – Article Three, Judiciary Branch, Sections 1-3
Friday Constitutional 9 – Article Four, Relationships Between The States
Friday Constitutional 10 – Articles 5 – 7
Friday Constitutional 11 – Amendments 1 And 2
Friday Constitutional 11 – Amendments 3 And 4
This week we are still working our way through the Bill of Rights.
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.
This Amendment is kind of mystery to most folks as it seems from our modern perspective not to be needed at all. Who would think that the Government would even want to quarter troops at our houses when they have perfectly good Forts and Bases? This was not the case when the Constitution was being written. There are plenty of reasons why a King would want to base his troops at the manor of a Lord or land owner. The biggest reason, to the Dog, being the intimidation factor caused by having lots of armed men, which are not your armed men on your property. Call it the original chilling factor.
The Framers wanted to, as much as possible, have the ability of the Government to intimidate the citizens limited. One way to do so would be to require laws passed by the new Congress to regulate the time and place that troops could be quartered in peace time.
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.
We could spend all day on this Amendment and the way that it has been chipped away at by laws and court cases. The basic idea of this Amendment is that you should be able to protected against a search or seizure of yourself or your property without a warrant. To get a warrant the Government must assert, under oath, that there is probable cause to believe that you have done something that warrants this search or seizure. They further must detail the items that will be taken or the place that will be searched.
This is where the new details of the criminal Bush Administrations Hoovering up all electronic communications should be clearly unconstitutional. There is no probable cause to assume that every communication is of probative value. Further, there is no warrant for each nor are they described in detail as the Constitution requires. The Dog thinks (hopes and prays) that if the Supreme Court ever gets to hear the details of this program (really multiple programs) they will have to find that it is not constitutional.
However there are other places where the Supreme Court is falling down on this Amendment. In the Herring decision the High Court found that even though an arrest and subsequent search of Mr. Herring was based on a warrant that was falsely in the system, the weapon and drugs found on him were still viable as evidence. The reasoning is that the Police made a good faith error (the arresting officer did not know that the warrant from another county was false when he made the arrest). The problem here is that it opens the door for less than scrupulous police departments to make “good faith mistakes” that are in fact nothing of the kind. It might even be that it starts with a strong desire to take bad people off the street, but over time the “bad person” threshold falls, and it becomes the normal thing. Then you get to a place where it is very easy to use this method to harass those that the police do not like. It is a classic slippery slope the Supreme Court has put us on, but it is likely that we will have to live with it until there are clear and egregious abuse of it.
A good basic rule is never to assent to any search without a clear warrant. This is likely to get you arrested, but the Dog thinks that it is better to insist on following the law instead of allowing short cuts. This is particularly true if you are sure that you have done nothing wrong. Be polite, ask for the reason that they would like to search your bag, car or house. Insist that they produce a warrant or they can not do so. This is where you might get arrested and then searched anyway. However if the Police are just doing it to rattle your chain they may back down. Be firm and be ready for what happens, it is your right under the 4th Amendment.
Do be aware that there are lots of circumstances where the 4th Amendment does not apply. A good example is going to a sporting event. If you are bringing a bag in they will ask to look in it. They can do this because it is a condition of the contract you made with the team that sold you the tickets. They are not agents of the Government. They have made your attendance of the game contingent on you following the rules they set. If you don’t want your bag searched, that is fine, but don’t expect to be allowed in. You will probably not get your money back for the tickets either.
We’ll stop here for this week. So, citizens, what are your thoughts on the 3rd and 4th Amendments?
The floor is yours.