“Right of search and seizure regulated. 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.”
It seems some days as if there are as many interpretations of this one sentence as there are people to comment on it, but I believe that most are due to either problems in definition or a callous disregard for the basic premise presented in this Amendment. I will attempt here to address the definition problems.
The first word in question is the word secure. The modern definition most commonly accepted is likely to continue or to remain safe. A different definition, which could also apply is feeling confidant and free from fear and anxiety. Were the authors intent on providing for our safety or our freedom from fear? This seems to be obvious if the Amendment is read in context and with an understanding of the desire of the founders to keep their language simple, direct, and clear. Had they placed their highest value on safety, placing it above freedom and property rights, they would certainly not have failed to include provisions which could have easily made us less free but much safer. In fact, if safety was their highest priority, it makes little logical sense that they would have included the Third Amendment in the Bill of Rights. No, their priorities centered on life, liberty, and property, not on safety. With this in mind, it must be concluded that the Fourth Amendment was intended to protect our life, liberty, and property, and not to provide for our safety.
The next word we need to clarify is papers. I personally find it to be a sad commentary on our situation that we need to clarify this at all, but we must do so to refute those who would try to make the claim that this refers only to physical, written documents on actual paper. In the days of the drafting of this Amendment, the normal means both to transmit messages over a distance and to record events and ideas for future reference was on paper. Electronic media, including telephones, e-mail, texting, and the like, was unheard of. How can a rational person claim that these modern methods of communication and record keeping should be excluded when at the time of the writing all normal methods of doing so were readily included in the word papers? Modern communication must be covered by this Amendment just as if we were still forced to do all of our communicating with quill and parchment. The notion that we should have no expectation of privacy flies in the face of all the Founders stood for.
What about the next controversial word, unreasonable? This is defined for us quite sufficiently right there in the text on the Amendment if only we refuse to take it out of context. “No warrant 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.” It should be fully evident to any rational and literate person reading this statement that this is the required test for whether a search is to be deemed reasonable. First, there must be probable cause, not mere suspicion. Second, this probable cause must be supported by a statement from a person who is willing to put their credibility and honor on the line to swear an oath. Next, a warrant shall be issued, and shall include a specific description of exactly where to search and what and who to look for. There is no room for latitude in this.
So why did I title this, “The Fourth Amendment That Was?” Just a few examples should be enough to show the disregard for the Fourth Amendment, not only by government agencies, but by well meaning citizens themselves.
Is boarding an airplane probable cause? Has anyone sworn an oath detailing how a crime is to be committed or how someone possesses tools for the commission of a crime? Has a specific warrant been issued? No, no, and no. This is a clear violation of the Fourth Amendment which can only be justified by…..well, I can’t think of a justification outside of a desire to intentionally ignore the constitutionality, or lack thereof, of the actions of the agencies involved.
How many residences were searched recently in Boston, and for what goal? Yes, there was a well justified manhunt going on, but one report sticks in my mind. Someone called in to a radio show and told of a law enforcement agency stopping her on the road and asking to see inside of her laptop case. Even had they had probable cause that the fugitive may have been hiding in her vehicle, how on earth can anyone possibly say that it was reasonable to look in a container as small as a laptop case for a 19 year old fugitive? Not only is this idea completely ridiculous, it is only to be viewed as a blatant violation of both her Fourth Amendment rights and her privacy. What were they really looking for and where was the warrant?
One more example of either a disregard for Fourth Amendment rights, or possibility a complete misunderstanding of them, is the fact that too many in this time actually seem to believe that there is some kind of merit to the idea that we have no expectation of privacy in our communication. Individuals and entities of the government appear to be adamant in their claim that our private communication should not be subject to the same level of protection and privacy as was so clearly described in the wording of the Amendment in regards to the protection included in the language referring to papers. If communication written on paper could be so obviously protected then, how can communication written on the modern electronic equivalent not be equally protected now?
We are at a point in this society where we all have a vested interest in speaking out against this abuse of our rights, for if we allow it to go on very much longer we will lose them, and along with them, the ability to regain them. Even if we think it is beneficial to sacrifice some or all of the protections provided by the Bill of Rights to alleviate a short term problem, we must always remember that the Bill of Rights itself is also the only means of ensuring that we can regain them, and once suspended we will lose not only the rights, but the means to have them restored.