Post details: FEE: The Fourth Amendment and Faulty Originalism

11/24/12

Permalink 07:34:42 am, by fourth, 348 words, 464 views   English (US)
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FEE: The Fourth Amendment and Faulty Originalism

Foundation Economic Education: The Fourth Amendment and Faulty Originalism by Joseph R. Stromberg:

“All arrests are at the peril of the party making them.”
—Alexander H. Stephens, August 27, 1863


These days the Fourth Amendment to the Constitution means next to nothing. Consider, for example, the choice offered a few years ago: surveillance under routine, easy “warrants” from the drive-through FISA Court or warrantless surveillance at the whim of George W. Bush and his allegedly boundless reserve of unitary-executive authority. A January 2006 Justice Department memo (“Legal Authorities Supporting the Activities of the National Security Agency ...”) explained the executive’s claims in mind-numbing and unconvincing detail. But the memo at least suggested how far below any practical service to Americans’ liberty the Fourth Amendment has fallen, and did so by heaping up available (and rather bad) search-and-seizure precedents, many of which arose from the terminally futile war on drugs (pages 37–38). The result is something like “your Constitution on drugs”—with the searchers and seizers on steroids.

Turning to the Fourth Amendment itself, we read: ...

This sounds pretty good, doesn’t it? And solid, like it might actually mean something. Alas, no such utopian state of affairs actually obtains. It is possible of course that my elementary school teachers just plain lied to us when they spun golden tales about American freedoms.

Yet surely there is more to it. But if so, what doom befell the Fourth Amendment? We might try looking at various eventful periods when governments—state and federal—felt unusually strong needs to arrest, search, and seize, such as the Civil War, Reconstruction, World War I, Prohibition (see Lacey, in works consulted below), World War II, the Cold War, and (naturally) the war on drugs. It seems, however, that long-running negligence, evasion, and misinterpretation have done more harm to the Fourth Amendment than have various short-run authoritarian panics. Central to this slow but continuous process was the rise of modern policing in the nineteenth century, creating a new institution not foreseen in American constitutions (state or federal) and therefore largely incompatible with them and unaddressed by them (see Roots).

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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

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Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
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Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

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United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

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Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

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Arizona v. Hicks, 480 U.S. 321, 325 (1987)

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“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.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

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