Truthout’s July 3d Restoring the Fourth Amendment: How We, the People, Can Win Over Washington is a thought provoking piece focusing on the Bush Administration’s hostility to the Fourth Amendment and the Obama Administration’s inability to change it. The article promotes citizen action to restore the Fourth Amendment.
But let’s step back to look at the larger picture of why the government does not now, nor ever has, respected the values of the Fourth Amendment.
We as a society have to change the government’s thinking about the Fourth Amendment. But, don’t blame Bush or Obama; blame yourself. If the government never has much respected the values of the Fourth Amendment, apparently “We the People,” the collective we, haven’t either.
It’s always the other guy’s privacy rights at issue, never yours. That short sighted thinking for the life of this country is what got us in this Constitutional mess. The rights of every citizen are protected when the rights of any one of us are. This is the boiling frog syndrome in action–what little rights we have we don’t even try to protect because we don’t see them slipping away when it is always the other guy who’s rights are violated.
We always have had “ends justifies the means” policy of government and law enforcement that has been around as long as there has been government desire to monitor its citizens. George W. Bush just capitalized on fear to take away our liberties.
Government hostility to individual privacy is endemic for government employees and officials, and it long pre-dates the Fourth Amendment. The general warrants used by the King of England to collect customs taxes here in the colonies before the Revolution were the impetus for the adoption of the Fourth Amendment, two years after the Constitution.
The Founding Fathers understood the threats of general warrants and writs of assistance, and that is why we have a Fourth Amendment. Making government respect the Fourth Amendment is the rub. We can make them say the words, but, as yet, we cannot make them do it.
How was George W. Bush fundamentally any different than King George in 1761?
Since the exclusionary rule was effectively recognized (well, sort of) in 1886 in Boyd v. United States, government and its law enforcement arm have been constantly trying to find ways to nullify it, and the courts are complicit and let them. We have judges appointed and elected because they promise to be ‟law and order,” like Chief Justice Warren E. Burger, appointed by President Nixon to promote that agenda because Nixon thought the Supreme Court was ‟seriously hamstringing the peace forces in our society and strengthening the criminal forces.”
With cases like the Court’s 1967’s recognition of the “reasonable expectation of privacy” in Katz v. United States? Today, we take this concept for granted. Richard Nixon apparently hated it that government couldn’t just listen in on Katz’s call from a telephone booth, and a bookie’s case became harder to prosecute.
Burger early made it clear in his opinions, like in Bivens first suggesting the good faith exception in 1971, that he despised the Fourth Amendment’s exclusionary rule. After three more quick Nixon appointments to the Court, what little progress that had been made under the Fourth Amendment was in serious trouble.
American law enforcement officers and politicians only respect the Fourth Amendment and individual privacy when made to, or maybe embarrassed into it. The courts rule case-by-case, but even a finding the government violated a citizen’s rights does little or nothing to alter its behavior. What happens the next time? Likely the same thing.
So, Nixon, too, was capitalizing on fear to take away civil liberties–demonize the Constitution by demonizing some of the beneficiaries. It always works.
And that’s exactly how government and ninety percent of all politicians think: Fear of the other guy is how most politicians believe you get elected; not that you can do a better job.
And the voters fall for it. Politicians know that people collectively are dumb. If a judge upholds the Fourth Amendment against the government, Republicans immediately call that judge “activist,” their political epithet.
Upholding the Constitution is being an “activist”? What country to you think this is?
To get government to respect the Fourth Amendment as a government policy will take a seismic shift in American thinking. The civil libertarians couldn’t do it, President Obama can’t do it, and the Tea Partiers and government won’t do it. I don’t see Americans today doing it because individual privacy is not a “hot button” issue for anybody in 2010 except for the person who just lost his or her privacy. Apparently the right to possess a gun is more important and fundamental a right to the Supreme Court and some people than the right to be free from unreasonable searches and seizures. My gun is my gun; I don’t care about your privacy.
It is folly to think that any one person can change any of this. It is the responsibility of every citizen in this Nation to hold local, state, and the federal government accountable under the Fourth Amendment. When they violate it, tell them or make them accountable in civil or criminal cases, but litigation takes too long.
You can complain to their superiors. But don’t hold your breath. Police departments might discipline an officer for an egregious violation of the Fourth Amendment, but not the small ones. As Ninth Circuit Judge Alex Kozinski wrote in 1989,
Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.
Kozinksi was channeling Justice Brandeis’s words dissenting in United States v. Olmstead, 85 years ago last week that still ring true today:
Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
The Bill of Rights lives case by case; whether it is the drug test of the railroad employee or unemployment benefits recipient, spying on a student at home through the student’s laptop’s camera, or looking at the messages on a government owned pager. Government thinking probably won’t change without a court telling it that it was wrong, and even then, they’ll try to find a way around it. Count on nothing with the Roberts Court. He’s Warren Burger with a brain.
It is the nature of government to thwart individual liberties, and the Founding Fathers thought the United States would be different. They were only partly right. If the Tea Partiers would ever take up the mantel of the Fourth Amendment, I might even join them. But, when one is a “constitutionalist” for only part of the Constitution in a way that makes me believe that person never read it, well, you lost me.
Yes, the Bill of Rights was a 1791 afterthought to our Constitution, and to far too many it still is.
The question is: how do we change our collective thinking?
