Fourth Amendment news

Blogger didn’t read the Fourth Amendment

On the conservative blog American Thinker today is Is Barack Obama Anti-American? stating:

In the Fourth Amendment, the Founders protected American citizens from government overreach that extends into the home. This was the first time in history that a government promised its people that they did not need to fear that their own government would seize their persons, despoil their homes, or steal their property.

What a colossal misreading of the Fourth Amendment. It doesn’t say against all seizures and searches–only against unreasonable ones: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ….”

Then there is Wyman v. James, 400 U.S. 309 (1971), which came down when I was in law school, and my head still reels from it. Warren Burger was Chief and Harry Blackmun and he had only recently been appointed (Rehnquist and Powell didn’t get appointed until the following year), both by Richard Nixon. The Court on one hand talked about the primacy of the protection of the home from invasions without warrants, but then found that this welfare home inspection was not unreasonable for a host of reasons and concludes with this:

If however, we were to assume that a caseworker’s home visit, before or subsequent to the beneficiary’s initial qualification for benefits, somehow (perhaps because the average beneficiary might feel she is in no position to refuse consent to the visit), and despite its interview nature, does possess some of the characteristics of a search in the traditional sense, we nevertheless conclude that the visit does not fall within the Fourth Amendment’s proscription. This is because it does not descend to the level of unreasonableness. It is unreasonableness which is the Fourth Amendment’s standard. Terry v. Ohio, 392 U.S. 1, 9 (1968); Elkins v. United States, 364 U.S. 206, 222 (1960). And Mr. Chief Justice Warren observed in Terry that “the specific content and incidents of this right must be shaped by the context in which it is asserted.” 392 U.S., at 9 .

There are a number of factors that compel us to conclude that the home visit proposed for Mrs. James is not unreasonable:

. . .

It seems to us that the situation is akin to that where an Internal Revenue Service agent, in making a routine civil audit of a tapayer’s income tax return, asks that the taxpayer produce for the agent’s review some proof of a deduction the taxpayer has asserted to his benefit in the computation of his tax. If the taxpayer refuses, there is, absent fraud, only a disallowance of the claimed deduction and a consequent additional tax. The taxpayer is fully within his “rights” in refusing to produce the proof, but in maintaining and asserting those rights a tax detriment results and it is a detriment of the taxpayer’s own making. So here Mrs. James has the “right” to refuse the home visit, but a consequence in the form of cessation of aid, similar to the taxpayer’s resultant additional tax, flows from that refusal. The choice is entirely hers, and nothing of constitutional magnitude is involved.

Apparently American Thinker doesn’t think too deep. It does, after all, call a former VP candidate a “visionary.”