America's Soft Police State

Today Americans live in a soft police state. We may not sense its severity and doom like runaway slaves or Anne Frank, but the freedoms of the greatest number of Americans have never been more threatened and violated institutionally -- both openly and secretively -- by our own government.

The Fourth Amendment, which is the law limiting government power to search and seize our persons and most private property, has been gutted by executive and administrative actions, Congress, and the courts -- the very bodies that were supposed to enforce it on government. This American Bill of Right is based in English common law, and was written to prevent what’s now called a “police state.”

Although Americans now live in a soft police state, we may not understand how we got to this point, or why reclaiming the Fourth Amendment is essential to retaining our exceptionalism that flows from freedom. Also, a proposed 21st Century Fourth Amendment introduced in the Virginia General Assembly this year is a model that can restore this Bill of Right to its rightful status.

The Fourth Amendment is quintessentially American even though it is based in English common law. It inherently relies on the separation of powers, but that too comes from the common law, and was forged through centuries-old battles between freedom and tyranny.

The Fourth Amendment is written in broad strokes covering many complex concepts, but has three basic parts -- trespass, process, and specificity. Understanding them, and the historical context from which they evolved, will help us reclaim this Bill of Right.

The first clause (or part) reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….”

Government violates our privacy, especially with its electronic surveillance and arbitrary interception of phone and digital records. The Fourth Amendment, however, is historically and correctly based in property rights and the law of trespass. Justice Antonin Scalia, for example, wrote in a 2013 Supreme Court opinion:

"[F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates . . . [and the] reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test."

It is actually a relatively simple concept that has come to be misunderstood or simply disregarded, but just as private individuals may not trespass on our persons or our most intimate property, neither may the government. That concept was as inherently understood and easily grasped by the Framers as it may seem radical to today’s statists or property rights antagonists.

At the common law there are exceptions to trespass that help explain some searches and seizures under the Fourth Amendment. For example, it is not trespass when we consent to people entering our homes. Acts to save persons or property from imminent, grave harm are exceptions to trespass. A “reasonable” search makes sense in these contexts.

Government may engage in acts that otherwise would be trespass when there is imminent risk to persons or property, and that includes “plain-view” violations of the law. There is also a separate reasonable exception for the safety of police officers that daily risk their own security for us. When those reasonable exceptions do not exist, government is supposed to then follow the warrant process of the Fourth Amendment before any search or seizure.  

It is of no small irony that government often relies on claims of security in order to violate the Fourth Amendment’s guarantees of security from government trespass under non-emergency circumstances. Security and good law enforcement, however, begin with law enforcement officials following the law themselves.

The next clause or part of the Fourth Amendment is process: “[N]o warrants shall issue, but upon probable cause, supported by oath or affirmation….” Here is where government has committed the greatest institutionalized violations of the Fourth Amendment under the administrative state, which has ballooned over the past 80 years.

A warrant for searches or seizures is a judicial act, wrote 17th century English jurist Matthew Hale in his Pleas of the Crown, first published in 1736 after his death. Despite the inconsistent training of lawyers and judges in the developing American colonies, and a lack of books and legal treatises compared to the libraries of London, the works of Hale and his jurist disciples Edward Coke and William Blackstone were extremely influential for the Framers.

The Fourth Amendment’s requirement of a warrant therefore inherently relies on the separation of powers. The concept of separation of powers even predates the Magna Carta, which came four centuries before Judge Hale’s time. (“No sheriff, constable, coroner or any other of our bailiffs is to hold pleas of our crown.”) Laws are written by one branch, executed by another, and warrants for their lawful enforcement are issued by yet another.

It is of course accepted without question that police departments must obtain warrants from judges, yet federal law enforcement agencies unilaterally issue their own warrants called “administrative subpoenas.” These unilaterally issued warrants institutionalize evasions of probable cause. Even before 9-11, the Drug Enforcement Administration used judge-less warrants to harvest phone records. How can this be?

Apologists for the federal administrative police state may cite the sometimes-inconsistent application of search and seizure practices at common law before the American Constitution was written. Institutionalized bureaucratic violations of the Fourth Amendment, however, can be directly traced to the expansion of the administrative state under the New Deal.

The Administrative Procedures Act enacted in 1946, and expanded since, has disemboweled the constitutional separation of powers and guarantee of republican government, giving bureaucratic agencies the power to not merely enforce, but make and adjudicate, laws affecting the public.

Giving federal bureaucrats the “teeth” of English despots, the Supreme Court in 1950 ignored and demolished the Fourth Amendment by upholding judge-less administrative subpoenas in the name of regulating commerce. As I recently wrote:

The court in U.S. v. Morton Salt . . . justified these judge-less warrants claiming that the “Federal Government allows [businesses] the privilege of engaging in interstate commerce … [and] favors from government often carry with them an enhanced measure of regulation.” The Supreme Court essentially said that engaging in commerce came with the trade-off of losing supposed “inalienable” rights. That was the constitutionally grotesque start of judicial acquiescence to administrative subpoenas. (Emphasis added.)

In deciding not to issue unilateral administrative subpoenas, Utah Attorney General Sean Reyes may have said it best:

"The wholesale writing yourself a note to go after that stuff without any check is too dangerous and the potential for abuse becomes too dangerous."

The next and final clause of the Fourth Amendment about specificity is celebrated greatly because of its role in fomenting the American Revolutionary War. “General warrants” are banned under the requirement that such demands must “particularly describe the place to be searched, and the persons or things to be seized.”

Senator Mike Lee’s newest book, Our Lost Constitution, devotes a finely written chapter to the 1763 English case of John Wilkes, who was arrested, his house searched, and his papers seized for “seditious” criticisms of the Crown. Wilkes sued for trespass -- and won -- because the warrants failed to meet the common law requirements of specificity (“particularity”) that were to become the final clause of the Fourth Amendment.

Senator Lee draws the clear and direct line from Wilkes to controversies of the NSA’s arbitrary and mass data-collection that followed enactment of the PATRIOT Act. The pattern of search and seizure trespasses and abuses -- the ebb and flow of freedom versus tyranny -- has once again repeated itself.

Reclaiming the Fourth Amendment to preserve our freedom from an administrative police state is possible. The proposed 21st Century Fourth Amendment introduced in Virginia by two Republicans, Delegate Rich Anderson and Senator Richard Stuart, provides an excellent model for the states and the federal Constitution.

The proposed updated Fourth Amendment adds digital property to Fourth Amendment protections, and would require administrative agencies to obtain their warrants from judges, not issue them unilaterally, which really is the best way to protect digital and other property rights under the Fourth Amendment.

It includes fixes of certain other harms caused by the courts, adding clarification to “probable cause” by grounding it in valid law and not some judge’s subjective concept of what is “reasonable.” The proposed amendment also protects police consistent with the reasonableness of exceptions to trespass laws when there is imminent danger to persons or property.

With the 2016 elections around the corner, there is no better time for Americans to push to reclaim this set of inalienable rights.