Civics Final Paper

Picture this: it is 3 AM and you are sound asleep like any other night. You’ve worked hard all day like any other day trying to keep your family fed. Suddenly, pounding on the door wakes up you up. As soon as you open the door, a policeman grabs you, handcuffs you, muffles you and takes you away for no reason you can think of to a detainment chamber. You have no idea how long you will be forced to stay there, how you will be treated, if you can contact anyone, but more importantly, why you are there in the first place. Does this sound unfair and ridiculous? It does, and this does not happen often in the USA because Americans are protected against this by the Fourth Amendment to the Constitution. The Amendment states that

“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.”[1]

This is a vital human right, because it helps maintain a restriction on the government that prevents it from freely invading people’s privacy—something done in socialism but not in democracy. As an activist, I believe that if I were living in a place where the effects of this amendment were not manifest in any form, I would be instantly subject to the ramifications of a ransacking of my house to find evidence that I am a dissenter from the views of the government. With the Fourth Amendment to the Constitution, I feel that I have more liberty to express myself and fight for what I believe is justice (in addition to help from other amendments, like the First Amendment.). However, after working hard to create a more effective protection of privacy for citizens by making decisions in favour of the Fourth Amendment, the government has taken away much of the amendment’s power, and has been consistently and unconstitutionally ignoring its provisions.

The history of searches and seizures goes back hundreds of years. In fact, the first recorded case dates back as far as 1335 in a case involving counterfeit money. [2] The power of search and seizure continued to grow without inhibition by royal and parliamentary decree all the way until 1688, the Glorious Revolution. “William of Orange, the new monarch, persuaded Parliament to abolish one tax because the searches required for its enforcements were ‘a badge of slavery upon the whole people.’”[3]

One of the most despised manifestations of search and seizure was called a writ of assistance, which is a document issued by a judge that allows a law enforcement officer to basically ransack any place whenever he feels like it is necessary—at his own discretion. This was a perfect pathway to the abuse of this power, and officers would search people’s homes for made up reasons if they were offended by that person or any similar scenario. Even when England outlawed the use of these documents at home, they were still widely used in the Colonies to harass the Colonists.

An important turning point in American history with respect to this protection came from James Otis. The death of King George II automatically caused all writs of assistance to expire and caused them to have to be reissued under the new king. James Otis petitioned the Massachussetts government not to hand out these writs because of their severe encroachment into people’s privacy, which was supported and passed into law by the Massachussetts General Assembly.[4] The governor, however, who was loyal to the King, overturned this law, which was extremely unpopular with his subjects. This act is claimed by some to be the spark of the Revolution.[5] In fact, the Declaration of Independence mentions the harassment of the Colonists by the King as one of its grievances. The Fourth Amendment was created in order to protect the people of the new United States from a repeat of this.

Laws by Congress

Congress has passed two consecutive acts that severely cripple the freedoms granted by the Fourth Amendment. The first act is called the Foreign Intelligence Surveillance Act (FISA) of 1978. After Nixon’s violation of the Fourth Amendment by spying on political and activist groups using federal money, much investigation was done into the legality of cases such as this. It was after this that Congress passed this act, which in effect legalised what Nixon did under the condition that the judicial and congressional branches are made aware of each such move in due course, meaning that if it threatened national security, the government didn’t have to declare the action until much later. In addition, this act changes the conditions needed to issue a warrant from the Fourth Amendment. While traditionally, warrants issued upon “probable cause” have had to be based on evidence that the person was comitting a criminal act, the FISA court can now issue a warrant if the US government can prove that the person they are asking a warrant for is merely affiliated with a foreign power.[6]

FISA and a few other acts are all detriments to the Fourth Amendment, but they maintain that information obtained by warrants granted in this way is not constitutionally acceptable to be used in criminal court cases. However, a bigger change came when Congress issued the PATRIOT Act. The act was hastily passed by Congress in response to 9/11 as a means of fighting terrorism, by lowering restrictions and protections on intelligence gathering. This enables law enforcement to search different electronic media like email and phone calls, and also makes it much easier for the government to detain people that it suspects are associated with terrorism. In addition, this act requires using evidence gathered in ways conflicting with the Fourth Amendment in criminal cases, unlike all the acts preceding it. The Patriot act all but completely dismantled the Fourth Amendment, because it creates a much lower standard for “unreasonable search and seizure”—many people would consider that an assumption of terrorist affiliations is an unreasonable cause to seize one’s property; and it creates easily navigable loopholes to avoid the need for obtaining a warrant to conduct these actions. These are the two provisions given by the Fourth Amendment, and they are both nearly nullified by the Patriot Act.

Executive Branch Policies

The Executive Branch has instituded many policies that are largely unknown to the general public which, among other egregious offenses, overtly violate the provisions of the Fourth Amendment. Called Covert Operations, these policies are the Executive Branch’s way of attempting to preserve national security with radical measures that it does not disclose to the other Branches of government until much later. Among operations that bring down the Fourth Amendment are ones such as MKULTRA, which centered around investigating mind control techniques to gain information about the enemy. This is an unlawful extortion of information that tries to directly invade personal security of an individual to extract the information. Not only are these operations unconstitutional, but just the fact that they are kept away from the public makes it clear that the government is scheming against the will of the people. If the government is supposed to represent what its people need and want, then everything the government does should be known and monitored.

Another project that undermines the Fourth Amendment is the Guantanamo Bay military base. This was established on the land of Haiti and never returned to its original owner. Now, it is used as a holding ground for detainees under the excuse that since it is not on US soil but still a US prefecture, neither the bill of rights, nor the Geneva Convention applies there. However, there are known cases of US Citizens that have been taken by force from their homes and families to this facility and detained for an arbitrarily long amount of time without any kinds of rights that are Constitutionally provided to all citizens.[7] Not even the USA PATRIOT Act is as blatant of a defiance of Fourth Amendment rights than this facility, which undermines the very foundations of the Constitution.

Supreme Court Cases

As we have so far seen, the US government seems to have a trend of wearing down Fourth Amendment restrictions. However, the Supreme Court, as its fundamental duty, is opposed to such avoidance of Constitutional law, which is clear through rulings it has made with regard to the Fourth Amendment.

In Chimel vs. California, a man was arrested, and then the officers entered his house. Ignoring the felon’s denial to “look around” the officers proceeded to thoroughly search his home, and find incriminating evidence. After the man sued for Fourth Amendment rights, the Supreme Court ruled that the arrest was valid because the police had an arrest warrant, but the evidence found in his house was taken unconstitutionally, since the officers had no search warrant to look through the suspect’s house. The Supreme Court then went on to define that it was only permissible for officers to search in the area immediately around the suspect after arrest, and not in his or her home.[8]

An important case of this is Mapp vs. Ohio, in which police officers, after a denial of entry by Mrs. Mapp to search her house for another suspect, broke into her house, handcuffed her to her bed, and searched the entire residence without a search warrant. They found some material that they decided was obscene, and arrested her. The Ohio state court upheld the arrest and gave Mrs. Mapp eight years in prison. However, the United States Supreme Court heard Mapp’s lawyer’s appeal four years later, and ruled that the evidence was found unconstitutionally. Then they also ruled that this kind of evidence cannot be used as legal evidence in State court cases, and not only federal court cases as was the previous rule.[9] This is a prime example of the Supreme Court trying to uphold the Constitution by making restrictions on the other branches, known as checks and balances, to prevent them from corrupting their power.

This important decision is actually upholding an earlier Supreme Court decision which introduced the exclusionary rule, in which evidence unlawfully seized in violation of the Fourth Amendment to the United States Constitution is not permitted to beused as such against a defendant in a federal court of law. This ruling took another important step and enforced this protection for every possible criminal case.

Conclusion

Although the Supreme Court’s rulings are in favour of supporting the Fourth Amendment, it is not enough to protect the rights of US Citizens. The other two branches of government—Congress and the Executive Branch—are both allowing laws and policies to slip through that undermine this fundamental right. It is very alarming to see how little is being done about cases such as Guantanamo Bay, which are not only unconstitutional, but are basic human rights violations. It is imperative that the actions taken by the government to create encroachments on our rights such as this are reversed and properly punished, because  if it is not, then the United States is at great risk of losing progressively more and more of its restrictions that protect its people, and can turn into an imperialist dictatorship that claims to be waging a war on terror while ruling by means of terror itself. The Fourth Amendment was created to protect the people from the government, and the government must be forced to uphold this principle.

Bibliography

“Chimel v. California, 395 U.S. 752 (1969)”,

David, Andrew. Famous Supreme Court Cases. Learner Publications Company, Minneapolis: 1980. (50)

De la Pena, Nonny. Unconstitutional. (2004)

Lasson, Nelson B. (1937). The History and Development of the Fourth Amendment to the United States Constitution. Johns Hopkins Press. 

Napolitano, Andrew. “Congress is Gutting the Fourth Amendment.” 2006

Newman, Robert K. The Constitution and Its Amendments. Macmillan Reference USA, New York: 1999.

"The Constitution of the United States," Amendment 4.

 

 

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[1] "The Constitution of the United States," Amendment 4.

[2] Newman, Robert K. The Constitution and Its Amendments. Macmillan Reference USA, New York: 1999.

[3] Ibid.

[4] Ibid.

[5] Lasson, Nelson B. (1937). The History and Development of the Fourth Amendment to the United States Constitution. Johns Hopkins Press. 

[6] Napolitano, Andrew. “Congress is Gutting the Fourth Amendment.” 2006

[7] De la Pena, Nonny. Unconstitutional. (2004)

[8] “Chimel v. California, 395 U.S. 752 (1969)”,

[9] David, Andrew. Famous Supreme Court Cases. Learner Publications Company, Minneapolis: 1980. (50)