The Most Unlikely Hero for Conservatives: Justice Sotomayor

Nine days after former New York assistant district attorney and current U.S. Supreme Court Justice Sonya Sotomayor exclaimed, "We can't keep bending the Fourth Amendment to the resources of law enforcement,” a Richmond lobbyist for Virginia’s sheriffs was attempting to kill an historic “Fourth Amendment for the 21st Century.”

As explained last week,

“The proposed amendment [to the Virginia Constitution] clarifies that unreasonable searches and seizures may not be made of our digital data (i.e., e-mails and data stored on computers or cell phones).  This is a logical extension of ‘papers and effects’ from James Madison’s 18th-century version.”

The proposed amendment also clarifies

“Madison’s version [which] did not clearly define terms such as ‘probable cause’ or ‘unreasonable searches and seizures.’  That has created lots of litigation and thousands of pages of case law that frequently confuse lawyers and judges.”

John Jones, executive director of the Virginia Sheriffs Association (VSA), issued the following vapid, content-free statement of opposition to the proposed constitutional amendment:

The Virginia Sheriffs Association opposes HJ 578 which amends the constitution of Virginia on search and seizure. 

The search and seizure provision of Virginia's Constitution have (sic) years of case law and the rules are clear. Protections are in place that balance the rights of the citizenry and the public safety interest of law enforcement. There has been no compelling reason to change 100 years of case law on search and seizure. Sheriffs as elected constitutional officers are as concerned as anyone about the individual rights of citizens against unreasonable search and seizure. 

The Sheriffs are concerned with the unintended consequences of a sweeping amendment.  We urge [the House of Delegates] to vote NO on HJ 578.

The VSA is a 501(c)(6) nonprofit organization that solicits contributions from the general public to “push for additional funding for law enforcement officers to patrol and make arrests, stronger law enforcement legislation, and tougher sentences for criminals.”

Meanwhile, Evan Bernick of the right-leaning Institute for Justice wrote that at oral argument last week:

Justice Sotomayor vigorously resisted the government's arguments and expressed a broad concern about the Court's deference to law enforcement in Fourth Amendment cases. Those who share her belief that neither the Fourth Amendment nor any other part of the Constitution ought to be reduced to "a useless piece of paper" should insist that the Court consistently hold those who enforce the law fully accountable to it.

The liberal Justice Sotomayor has become an unlikely champion of the Fourth Amendment, which guards the security of our persons and private property against government invasion and trespass.

ACLU Virginia is supporting the Virginia amendment, but conservatives must not think this is a criminal-coddling amendment. Retired Air Force Colonel Delegate Rich Anderson and former prosecutor Senator Richard Stuart, both conservative Republicans, have sponsored the amendment. The Virginia Tea Party Patriots and Americans for Prosperity back it.

Constitutional conservative former Virginia Attorney General and current president of the vaunted Senate Conservative Fund, Ken Cuccinelli, is one of its most outspoken advocates. Republican Delegate Rob Bell, on the other hand, an aggressive campaigner who ran in 2013 to succeed Cuccinelli, is showing political tone-deafness to his base by opposing the amendment.

Make no mistake: This is an originalist amendment that even constitutionally protects the safety of police. It will also rein in lawless bureaucrats who use administrative subpoenas to bully people and businesses into a big-government agenda. Bell’s opposition will hurt his run for statewide office in 2017 because he will be seen as protecting government lawlessness over security of private property rights.

Sheriffs in Virginia are elected, and it is not clear whether the anti-good law enforcement position taken by their Richmond lobbyist is indicative of their view. But the Fourth Amendment is the only Bill of Right that addresses police actions, and is what separates America from a police state.

The VSA lobbyist’s evasiveness in giving any credible reasons for opposing the six-sentence amendment is troubling at many levels. However, could anyone imagine objections to any of the Bill of Rights on grounds of being “concerned with the unintended consequences?” That’s a startling position.

Virginia’s loyal sheriffs need to fire their cowardly Richmond lobbyist, and clearly demonstrate that they support good law enforcement under the people’s law over government -- or at least have the courage to publicly explain the reasons for their opposition.