The Constitution Today: Fourth Amendment
http://thedianerehmshow.org/shows/2011-11-02/constitution-today-fourth-amendment
The Bill of Rights
The National Archives
The 4th Amendment was added to the United States Constitution in 1791 as part of the Bill of Rights. It protects American citizens from unreasonable searches and seizures by the government. In recent years, law enforcement is using new technologies like global positioning systems and video surveillance to fight crime. Critics say 4th Amendment protections are eroding in the process. They believe Americans have a fundamental right to privacy-- even in public places. Today, as part of our ongoing “Constitution Today” series, we examine the origins of the 4th Amendment and how digital technology is testing its boundaries like never before.
Guests
Jeffrey Rosen
professor of law at The George Washington University; legal affairs editor at The New Republic.
Michael Quinn
president and executive director of James Madison's Montpelier
Scott Fredericksen
managing partner, Foley & Lardner, LLP; former federal prosecutor and Independent Counsel
Comments
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Okay, here a very clear example of how the Constitution should be considered a "living document"
How would the founders have predicted things like cell phones? Just like how the founders in the 2nd Amendment envisioned militias....militias armed with muskets, not AR15 and AK47's.
The Constitution constantly needs to be revisited and updated to reflect the evolution of mores and technology and it needs amending from time to time.
Teece Bowman, I am increasingly under the impression you seek to agitate only.
The "living document" or "living Constitution" theory is the most effective and destructive weapon that has ever been devised to destroy everything that made this country great, free and prosperous. To think the founders were oblivious to the possibility of improvements and innovations in technology is the height of ignorance.
A living constitution quite simply means that we do not have a constitution, at least one that's not worth more than toilet paper.
Sure there is an amendment process, but this is not the same as the meaning of a living Constitution.
James Madison, principal author of the U.S. Constitution and often called the "Father of the Constitution". Said this:
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.
The fourth amendment
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.
Was toilet paper invented in 1789? Under the fundamentalist method of applying the Constitution I guess we might have to say the Bush II and Obama administrations have used the Constitution like a dried corncob or a butt-doilley. In 2006 I was doing some research on the persecution of Highlander Folk School during the civil rights era. I was a blythe spirit in those bygone days expecting my idle curiousity to remain my private affair.
But my line of evidence led me to Fort Benning, Georgia where such freedom fighters as Manuel Noreiga were trained in psy-ops. Upon cursory examination and copying of some publicly accessible files my desktop computer was completely wiped clean including the operating system. As far as I've been able to determine the research I was doing is forbidden, though not under law.
Neurological scientists are now routinely employed to find ways of mapping and manipulating the human brain: for interrogation, for truth detection and for involuntary programming. In an era where the majority of American consumers are superfluous to the needs of Oligarchy I do not see how anyone is secure from scientific or pseudo-scientific invasions as described by sociologist Michael Foucault. We actually have no "tinfoilhat" to protect us because the 4th Amendment is now toilet paper for the Elite, thanks partly to literal fundamentalism in interpreting law almost 225 years behind technologies of discipline and social control. These technologies, in aggression and defense of human and corporate privacy, have negated the People's sovereignty and produced an illegitimate governance. Thus Occupy.
Monte,
An agitator would be someone who simply throws out comments for the purposes of agitation. I actually believe what I write! I suppose, truth were known, I might say the same about you. You think that I am misinformed and I feel the same way about you.
But agitator? I don't think so.
I truly see our country as one of the the most corrupt and debased places on the face of the earth. And truth of the matter is, I believe that it started off tha way. ( I know, I know...then why don't I move? Why not try to make improvements?)
Our country, our politics, our very way of life, is corrupted by money. And until we are able to get money/wealth and all love and desire for it..... out of the mix, it will remain so.
Money as a medium of exchange is one thing, but wealth as a religion/fetish is quite another.
That aside, and more to the point, the United States has the highest documented incarceration rate in the world. The World! At year-end 2009 it was 743 adults incarcerated per 100,000 population.
Unlawful search and seizure is a joke and if not in your home then where it concerns your person or automobile it is even worse. Your car is nothing more than "rolling probable cause".
The more corrupt a society, the more numerous its laws could not be a more true statement.
The fourth amendment consists of multiple clauses:
'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'.
These are usually conflated, in that warrantless searches are often treated as unreasonable on their face, but the second clause is almost a procedural one, specifying the conditions of warrants.
Can your guests speak to the difference between warrants and reasonableness?
The based on the your last statement Teece, it would appear that you are a proponent of less laws/regulation/government. We on the side of small government welcome you to the team with open arms.
I do not see any conflict with the intent and application of the fourth amendment and the gadgetry available in 2011, it will only require the will to enforce it.
Many cities are employing the use of traffic cameras to create a revenue stream, I have read that there also exists the manipulation of yellow light timing in order to entrap. Even without the entrapment aspect this has nothing to do with public safety and everything to do with corrupt government intrusion.
monte: Will you be ready when the Supreme Court rules that your red light runner tickets are entre' to examine the contents of your personal handheld device? My point is that law is fluid and contentious in the present day but was more clear cut in simpler tech times. I assume these days that my every keystroke and download are noted in a digital log for later use. It's not because I'm a badboy or special. It is the condition every user of bandwidth now lives with. Any interpretation of the 4th A determines what is retained in your "permanent record", who can see it and how it can be used to make cases against you. I would argue that the entire Bill of Rights is wholly inadequate today.
The nosy will always try to find a way to snoop, and those in power will always try to worm their way around the rules. In this information age, our protections are more important than ever.
For example: If a person could not be followed around by a rider on horseback, 24-7, (which I believe would constitute a fear for safety) any other following, even GPS by police should be also banned by the 4th as though it were anyone following in any manner.
Heah in da South, we used to have these "outside agitators" coming in.
I used to think an "outside agitator" was a type of washing machine (wringer, front loader, top loader, water saver). I would be proud to be an agitator if I could work to clean up this dirty system of law. Some people seem proud to hang out their soiled linens on this site. Looking at what happened to outside agitators was what got my hard-drive fried. Teece donates her mind and thoughts without compensation, just like most of us, except the military and Koch drones. Writing on this site in itself is a bread crumb trail for the enemies of privacy and free speech.
put simply, where do we draw the line?
If I disagree with our government, courts, or laws then will I become a target?
I realize that at first this sounds like the big brother, but really how far are we from losing our rights for safety.
What worries me is not trailing of a known drug dealer but when people with power use new laws in order to further increase wealth or power by attacking people who are in disagreement with them.
Will you be able to attack your opponent or opposition because privacy is non-existent if you have the right connections and power?
Although the Bill of Rights could not anticipate electronic devices, it DID affirm the essential need for privacy. I (and millions of other people) routinely use a computer, laptop, or smartphone to store entirely private notes, which were not, and never will be, transmitted to any person in any way.
Such devices do constitute my "papers and effects," and in many cases contain certain elements of my private person. Hands off!
mnemecek,
I certainly would agree with "some" aspects of libertarianism.....but not all.
Libertarianism (and I suspect that you aproach this board from that bent) would be welcome where it regards getting the government out of our private lives, out of our belief systems and out of our bedrooms.
But the corporate/capitalistic friendly aspects of Libertarianism, make me highly supicious from the standpoint of a wild west kind of mentality.
We need to find some happy compromise that creates a cop in all of us and would make us all guardians of one anothers liberties. That requires a degree of intelligence that is simply absent in America today. Conservatives say that they don't want big government, but in truth they want those aspects that protect the wealthy and most able. Liberals on the otherhand want those parts that appear to protect the poor and least able among us. Libertarianism cedes too much responsibility to the individual who, if left to their own devices....and in the present age of selfish interests, would simply run amok.
I think there is something being overlooked here. Someone's automobile or mode of travel must be considered private property, even if it is able to travel within the public realm. Attaching any device to something like this should be considered analogous to attaching a device to the person themselves. If this is true then I would assume a warrant must be obtained. Otherwise, what is to stop the government from subverting a service you pay for, say OnStar, from tracking your movements without your knowledge, your cell phone, etc...? I think that if this is allowed it becomes a terrible slippery slope.
My name is Matt in Syracuse NY: There are a myriad of ways that the federal government has bent statutes to authorize the use of geospatial technologies within U.S. domestic territory. Examples of such include the partnership between the National Geosptial Intelligence Agency and the U.S. Geologic Survey (USGS; a component of the department of the interior) which contributed to the mandate under Homeland Security Presidential Directive # 7 in 2003. When paired with legislation such as the 2006 "Information Sharing Environment" & recent additional presidential mandates that call for the propogation of biometric surveillance tactics and technologies that are being tested in Iraq and Afghanistan it has become clear that the US homeland security project has been designed to intentionally bypass the ban on DARPA's Orwellian "Total Information Awareness" program shortly after 9/11. For one example see, the "Recorded Future" partnership between Google and In-Q Tel.
In short, these systems bring military systems into our cities and further paramilitarize police intelligence operations. New York is the case in point.
My question is how we as citizens can best track this machine, and what legal tools are available to do so?
morjohndread: You and I are not paranoid, but maybe we misunderstand the extra-legal and impunitive claims made for our agencies and public officials. Catherine Austin Fitts has described well how the revolving door riders from business to government assume they are above the law by authority of the need to make a profit, or by friendship or client relationship with the multinational wealthy class. Our State Department demands immunity for our overseas troops, but this is not for the benefit of soldiers.
All law and all systems of law are expressions of power relationships, and I go with Treece in assuming that only the privileged class has routinely been protected by the 4th Amendment. They and their corporate instruments of limited liability are the ones with the most privacy and security in property to lose. Jemmy Madison assumed that within 50 years (1850) most American citizens would be urban wage slaves. He never envisioned drones and satellites and the tapping of phones, sewers and waterlines to collect evidence or to punish extra-legally. When any means becomes easily available you can be sure those with power will employ it to gain more power or income, defend their perks, and punish their critics, regardless of any law.
Texas Public Elementary Schools: How are they allowed to question and search students without a warrant, or parent present?
It sounds like in the future, I will have to worry everytime I leave my house that when I am out in public spaces...I can be subject to invasive surveillance ...gps on my car..or, inthe future, use of hand held scanning devices that will "x-ray" my person as I walk past much like airport scanning machines, etc.
Judges need to realize that my right to privacy is a "zone" I carry with me when I leave my house or leave my car.
It is important to look at the original situation. The framers of the Constitution,Bill of Rights, and Declaration of Independence were dealing with a very different political scenario--creating a nation in the process of fighting for independence, with a somewhat utopian take on representative government. AND- they did it in an Agricultural level of technology, only with a dim beginning of Industrialization. We -conversely- live in an era of instant, ubiquitous mass communication. It is theoretically possible for present systems to store information on eveyone's activities for the entire last week, worldwide!
A wrinkle to the whole Free-Speech issue that I find interesting is 'conlang' hobbyists like me--We create artificial or 'constructed' languages, and try to communicate in them. Most are failures, but some have become popular, such as the StarTrek "Klingon" language, which today has about 20,000 speakers, worldwide. What could any listening entity do about that? Is there a CIA training course on Klingoni?
Thanks!
Statement: "AK47 are one of the most dangerous weapons of our time so the living Constitution permits government regulation because the framers of the Constitution could not imagine such a dangerous weapon"
Logic of "living document" theory of the Constitution
If one considers a particular weapon overtly dangerous
Then the "living document" theory of the Constitution permits restrictions on that weapon
Therefore an AK47 being too dangerous must be regulated
This implies that the original intent was to place restrictions on dangerous weapons
Rewind 230 years: The most dangerous weapon of that time was the "musket"
Since the framers of the Constitution did not put restrictions on the most dangerous weapon of their time we can infer that the intent of the Constitution, or more specifically the 2nd Amendment, was written to protect the right to keep and bare ALL arms without restrictions based on the lethality or level of technology and thus set a precedent by which government is bound.
This same logic should be applied to all cases regarding original intent and advances in technology. The Constitution was written to set a precedent not open for interpretation buy which all government action is bound!
What really bothers me about the GPS tracking on the car is the following...
Proponents for it argue that once you are in the public arena, you can no longer expect any level of privacy. My question is what happens when you drive your car back into your garage with the GPS tracking device still attached? You are no longer in the public arena, so is this not unreasonable search because the government is now tracking you on your own property without a warrant? In the conventional sense of surveillance, a police officer could sit on a public road and observe activity on your property, but he cannot step on to your property and search your property without probable cause and a warrant. So how does this still not apply with GPS surveillance?
runandhide wrote: "Statement: "AK47 are one of the most dangerous weapons of our time so the living Constitution permits government regulation because the framers of the Constitution could not imagine such a dangerous weapon"
Logic of "living document" theory of the Constitution
If one considers a particular weapon overtly dangerous
Then the "living document" theory of the Constitution permits restrictions on that weapon
Therefore an AK47 being too dangerous must be regulated
This implies that the original intent was to place restrictions on dangerous weapons
Rewind 230 years: The most dangerous weapon of that time was the "musket""
Response
One of the purposes of the second amendment was for the people to maintain a free state against a tyrannical government. In order to do so the people would need to have weapons of equal power of the government, which means military grade weapons.
To say the framers could not have imagined an ak47 is ridiculous. They certainly were aware of technological advancements of bows, spears, bronze age weapons the advancements in explosives the earliest hand cannons evolving into muskets with rifled barrels and the ignition systems for them that were constantly being refined and improved .
I would say advancements in firearm technology were highly predictable considering the basic concept has not changed, that of sending a projectile as quickly and as accurately as possible down range.
Yes the main premise of the 2nd amendment is as you stated, "for the people to maintain a free state against a tyrannical government." You misunderstand my argument though! I never implied that the framers could not have imagined the technologies today. I was making an argument against the idea of an "evolving" or "living document".
Teece Bowman made the implication:
That the framers only had muskets (a simple weapon when compared to today) and could not imagine the danger posed by a modern automatic weapon. Thus, since the framers couldn't imagine the advances of modern technology then the Constitution must evolve to adapt to those advances and perceived dangers. This was someone else's argument (I think it was the very first post).
I made the logical jump to say that the Constitution, the 2nd amendment, and therefore the entire Bill of Rights were established as precedents that are not open for interpretation. Meaning one CANNOT say, "because the framers couldn't imagine some of our modern technologies (cell phones, the internet, whatever) we must evolve or alter the meaning of the Constitution to address or regulate these advances".
Read my post a little closer and think! I'm on your side on this!
runandhide, I figured that out and was modifying my post, thankfully I did remove the last part dismissing your point.
Very well said on your part, I am just not used to seeing very many sensible comments here and on this issue I do get a bit emotional.
Welcome aboard!
Money is not the problem. Please let me explain before you say to yourself what is wrong with this guy!
Money was not created by one man, a king or a government. No one woke up one day and said "lets get together and create money"! Money evolved out of the barter system as an intermediate means of exchange. Whatever was used as money had to be something that was widely accepted as something that was useful or had value to the people who used it. It also had to be durable, portable (have a high value to weight ratio), and be accepted by the majority who used it! Money evolves organically out of free trade.
The problem we have and societies have had for centuries is government monopoly control of money and forcing society to accept whatever the government declares to be money! When governments gain the power to control what is money, they always make it something that is easily manipulated, such as paper so the government can fund whatever it wants to do and also give it to who it wants to! Money and honest wealth are not the problem.
THE REAL EVIL IS GOVERNMENT"S MONOPOLY CONTROL OF WHAT MONEY IS AND HOW MUCH THERE IS OF IT!!!!
And so by the tabloid reasoning of runandhide, concurred by monte, since the Funding Fathers (original owners of the USA) allowed the "most dangerous weapon" (muzzleloader) in 1789 then we should allow the current most dangerous weapon(s) today in case of tyranny (break glass).
So every Minuteman should maintain a thermonuclear device in the privacy of his home until that time... (question becomes mute).
(R. Crumb is rumored to be addressing just such foibles in his next book of Drawerings. Then we'll see what runandhide and monte look like.)
Man, that monetary argument also reeks of Greenspanism.
I recall when discussing warrantless wiretapping, when asked directly about the requirement for warrants in the Fourth Amendment, Michael Hayden claimed that the constitutional standard was reasonableness, implying that the entire national security apparatus from the fourth amendment. Here's the link:
http://www.youtube.com/watch?v=cGhcECnWRGM
Given the difficulty in engaging the legal system in oversight of the NSA and other governmental agencies involved in national security, who is to say the requirement for warrants is being obeyed at all outside of traditional law enforcement? If an agency can exempt itself by this logic, why doesn't law enforcement claim that the standard is simple reasonableness?
runandhide wrote:
"Money and honest wealth are not the problem".
We have grown so far from the barter system, to the point where, the making of money, is simply an end in itself. We are at the point where money isn't producing anything any longer....it isn't even a medium of exchange. That is not honest wealth....and that is the business of Wall Street.
And Grady Lee wrote:
"Man, that monetary argument also reeks of Greenspanism".
I agree but more appropiately it should be attributed to the sociopath Ayn Rand to whom Greenspan was an accolyte. Anyone who follow Rand should be suspect. Including all of her more recent minions.
The digital age has crept up on most of us and we need to consider the implications of a digital world. For the most part our digital lives feel like a convenient extension of what we have always known but, do not be deceived. Our phones still allow us to make phone calls... but allow our every movement to be tracked. Our cars still provide transportation...but they record everything about our car including where we go. Our TV still provides "entertainment"... but keeps track of everything we watch. Our banking, insurance, healthcare, credit, tax and investment information is recorded in detail. We haven't changed what we do but the information we about what we do has changed. We freely (unknowingly and without options) give more and more information away to our Corporate Oligarchy in exchange for convenience. We are giving away control of our Liberty and our Freedom.
It is possible that most of the problems that we have with our Government and the corporations we interact with today stem from the misunderstanding that not all data is the same! We need to understand that our information is something We keep and let others look at. We need to control it not let others control it. We shouldn't just give it away or let it out of our control. Ever! We need a different information management model for the future.
Our Personal Data should be kept in a single network connected location accessible at all times but not be out of that persons control.... for more information http://personaldatacoalition.org