Why nanny statists hate the Fourth Amendment
California Attorney General Kamala Harris weighed in on the wrong side in this year’s unanimous Supreme Court decision that the Fourth Amendment prohibits warrantless searches of cell phones by police.
Nanny statist Ms. Harris more recently issued a regulation that allows her to unilaterally violate both the Fourth and First Amendments of some of her critics.
The nanny state is government with a big stick. The “stick” is the threat of penalties such as fines, imprisonment, or for activities subject to license, the loss of the license.
With government doing so much harm these days, it is becoming clearer that nanny statists such as Kamala Harris are actually the biggest threat to the civil liberties of the greatest number of people of all races, creeds and conscience.
The nanny state uses the threat of penalties -- or force -- to coerce behavior. Prospective fines discourage the sale of oversized sodas. Armed raids and jail time are now threats to discourage certain farming.
The Fifth Amendment to the Constitution says penalties that could result in loss of life, liberty or property may come only after due process. The right of due process means that a defendant has an opportunity to explain innocence or mitigation before punishment may be meted out. In Genesis, even God gave Adam a chance to explain himself before he was banished from the Garden of Eden.
Here’s where we see how the structure of the Constitution helps protect liberty, and why the Fourth Amendment, like the Fifth Amendment, helps protect life, liberty and property.
The executive branch enforces laws of the legislature sometimes by prosecution before a neutral judge. The three powers of government are not to be held by one person or group of persons. That structure of government helps prevent tyranny, explained James Madison.
It’s important to understand that the Fourth Amendment is written in the context of this structure. No one person should make the law, then issue warrants for violations, and then execute searches or seizures. That’s the form of tyranny the Constitution was structured as law to prevent.
Historically, deprivations of life, liberty and property were why the Fourth Amendment was written. Raids by the crown in England and even in colonial America to collect taxes or suppress religion and critics of government sometimes involved violence.
Today’s nanny state has shown this violent tendency. In raids on the Gibson Guitar plant in Tennessee and a free-range pig farm in Michigan, the nanny state came with guns and even armored vehicles as its “big stick.” With loose cigarette seller Eric Garner, it was a chokehold instead of a stick.
These acts are subject to what is known as “probable cause” under the Fourth Amendment. Probable cause means a strong suspicion that some law was broken.
The Fourth Amendment’s process involves all three branches of government except in exigent circumstances when it involves arrests by the police under laws passed by the legislature. It is a predecessor process designed to prevent deprivation of life, liberty and property before government reaches the due process stage.
Many regulators within the federal and state executive branches, however, treat administrative regulations and searches as a loophole in the Fourth Amendment.
Regulators create administrative regulations in place of legislation. Constitutional law professor Phillip Hamburger calls this a prerogative exercised by English kings, unlawfully he shows.
Regulators also adjudicate their own prosecutions without Constitution Article III judges. As constitutional law professor Jonathan Turley writes, “These agency [adjudicative] proceedings are often mockeries of due process.”
More and more regulators use administrative searches and subpoenas that neither enforce actual statutes, nor are approved in advance by neutral magistrates from the judicial branch.
Unilaterally issued administrative subpoenas -- those not authorized by judges -- fall under a narrow exception to the probable cause requirement according to the Supreme Court. Regulators have tried to make this narrow and questionable exception into the rule.
California’s General Harris oversees licensing of nonprofit organizations under her state’s charitable solicitation law. Solicitations are protected by the First Amendment, since nonprofit organizations use them to inform and educate the public about a plethora of issues such as cures for diseases, public policy, religion and more.
Harris’ new regulation says that she may refuse, revoke or suspend the solicitation license of any nonprofit that refuses to produce documents in response to a subpoena or even a written request from her. Since her regular use of unilateral subpoenas is already open to a Fourth Amendment challenge for lacking probable cause, this is extortion and unlawful.
With certain exceptions, nonprofit organizations have replaced the news media as the real watchdogs of government, making them susceptible to abusive investigations. The liberal Warren Court acknowledged in NAACP v. Alabama that subpoenas of nonprofit documents are often a means used to silence critics of government.
Nonprofits tend to be reluctant to challenge subpoenas either for public relations reasons or a general fear of government retaliation. Any nonprofit that objects on Fourth Amendment grounds to Ms. Harris’ demands now will lose its license to communicate with requests for donations. That’s a lot of lost contributions given California’s large donor base.
What makes this more blatantly extortive is that nonprofits producing documents as a way to protect their First Amendment rights waive any Fourth Amendment challenge they could later raise.
The structure of the Constitution -- from the separation of powers to federalism -- was designed to protect liberty. Progressives typified by Barack Obama and Kamala Harris seek to break America’s paramount law by governing without faithful adherence to those structures.
Why do nanny statists violate the Fourth Amendment? It’s a way to deprive citizens, nonprofits and businesses of constitutional rights before they reach the due process stage. It’s big-stick intimidation.