The 4th Amendment: May It Rest In Peace
August 30, 2010 by Bob Livingston
In Colonial America it was common for British soldiers, tax collectors and other representatives of the Crown to obtain a writ of assistance giving them the authority to enter any home, business or ship at any time of the day or night in search of contraband goods or to interrogate the residents and owners over payment of taxes or for most any other reason.
Writs of assistance were very vague search warrants and it was a simple procedure to obtain them. They could be had for any reason or no reason from the Colonial governor or from judges — all of whom held their positions at the whim of the King of England.
In 1761 James Otis Jr., the Advocate General of Massachusetts — whose job it was to defend the issuance of the writs in court — resigned his position and took the side of 63 Boston merchants in a court battle against the writs. He represented the merchants for free, and though he lost the case in a court stacked against him, he earned the title of patriot.
It was his five-hour speech in court that served “as the spark in which originated the American Revolution,” according to John Adams, who was sitting in the courtroom at the time.
“The child of independence was then and there born, every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance,” Adams said.
The issue was such an important one to the Colonists that it was mentioned as one of the grievances in the Declaration of Independence: “He (the king)… sent hither swarms of Officers to harass our people, and eat out their substance.”
Since it was so important an issue to the Founding Fathers it’s not surprising that an Amendment was included in the Constitution that forbids the government from arbitrarily searching people, homes and businesses.
It was the Colonists’ experience with unreasonable searches and seizures and Otis’ speech that planted the seeds that grew into the 4th Amendment which reads:
“The right of the people to be secure in the 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.”
The 4th Amendment has been under assault before in our nation’s history. And that has been chronicled in other articles on this site. But now that right, guaranteed by our Constitution, is as dead as a hammer.
The most recent major assault on the 4th Amendment came in the wake of 9/11 when President George W. Bush proposed and Congress passed the USA PATRIOT Act, which was most unpatriotic.
In the Senate the act passed 98 to one. Democrat Russ Feingold (D-Wis.) was the lone dissenter. Democrat Mary Landrieu (D-La.) did not vote.
In the House it passed 357-66 with nine not voting. Sixty-five of the dissenters were Democrats. Ron Paul (R-Texas) was the lone Republican to oppose the bill.
Without getting into specifics, the bill gives government investigators almost unlimited power to conduct wire taps, eavesdrop, access and search records and enter homes in an effort to root out those it considers terrorists. The bill was couched in a way that led Americans to believe it was to be used only in the war on terror but, like all other government powers, it has been abused and used against Americans. In fact, some Americans have been charged with terrorism-related offenses through the Act even though their “crimes” involved nothing more than making innocuous threats, taking or possessing photographs or drawing pictures.
The travesty is that Americans, for the most part, seemingly don’t care. They’ve decided that government should be allowed to do anything and everything “if it makes us safer.” In fact, many commenters on this subject on this site have said as much. So the heavy hand of government has grown bigger and stronger — as government is wont to do — and the USA PATRIOT Act has been renewed and strengthened.
In the name of safety we have ceded our right not to be searched at airports… almost without a whimper. First we accepted removing our shoes and opening our bags. Then we gave up our lotions, sanitizers and water bottles. Then we accepted being frisked and poked and prodded. Then we accepted having our bodies irradiated and naked pictures being taken and ogled at and saved in the system — in effect allowing government to assume we are all criminals with plans to blow up an airplane — all in the interest of “safety.”
But here’s what really killed the 4th Amendment. Technology and government have taken the next logical step beyond airport scanners. American Science and Engineering, Inc., one of the manufacturers of the backscatter radiation machines now being employed at airports, has made the backscatter radiation system portable.
The Z Backscatter Van™ allows law enforcement to look inside vehicles, buildings and homes just like the airport backscatter scanners allow agents from the Transportation and Security Administration to peer beneath your clothes.
AS&E’s website says the van:
“…is a low-cost, extremely maneuverable screening system built into a commercially available delivery van. The ZBV allows for immediate deployment in response to security threats, and its high throughput capability facilitates rapid inspections. The system’s unique "drive-by" capability allows one or two operators to conduct X-ray imaging of suspect vehicles and objects while the ZBV drives past.
“The ZBV can also be operated in stationary mode by parking the system and producing X-ray images of vehicles as they pass by. Screening can also be accomplished remotely while the system is parked. Remote operation allows scanning to be done safely, even in dangerous environments, while maintaining low-profile operation. The system is unobtrusive, as it maintains the outward appearance of an ordinary van.”
A company video of the van in action can be viewed here.
These vans and a more powerful, fire truck-sized version called the Mobile Search HE (high energy), are now on the roads in America. AS&E sold $242,093,000 of its backscatter imaging products in fiscal year 2010 with 63 percent of the sales in the United States, according to the company’s annual report. The company says 500 of the ZBVs have been sold.
The company’s main contractor — not surprisingly — was the Department of Defense, where the trucks were deployed in war zones. But the vans and trucks have been sold to other government entities — including states and municipalities — as well.
That means that, right now, ZBVs and Mobile Search HEs are prowling around our streets and towns looking into our cars, homes and businesses searching for something — anything — the heavy hand of government finds “suspicious.”
No longer are you secure in your “persons, houses, papers and effects against unreasonable searches and seizures.” Government agents can peer into your car, home and business and you will never know it until they show up on your doorstep flashing a warrant based on something they saw through the walls.
And not only are you no longer secure in your home, your thoughts — or future thoughts — are being probed as well. A University of Pennsylvania professor has developed software that the developer says can predict which individuals on probation or parole are most likely to murder or be murdered.
According to ABC News, if the software proves successful it could influence sentencing recommendations and bail amounts. It is being used in Baltimore, Philadelphia and Washington, D.C.
And, of course, we already have “hate crime” laws in which judges and prosecutors deign to know the thoughts and motives behind criminal acts — giving the impression that a heinous crime is somehow even more heinous because the person harbors some type of grudge or bias.
Folks, we have reached the totalitarian regime foreshadowed in George Orwell’s 1984, where all that we do is watched and where even our thoughts have become crimes.
“The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it; moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. There was of course no way of knowing whether you were being watched at any given moment. How often or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live — did live, from habit that became instinct — in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.” — 1984, George Orwell.
No longer a thing of fiction, government has truly become Big Brother. What Orwell didn’t know is that the technology would advance to let Big Brother watch us even in darkness.
Our nation has become the Oceania of 1984, where history is changed daily, our actions are watched, our thoughts are discerned, our communities are decaying and we are in a perpetual state of war.
Buying Big Brother’s vow to keep us safe we have kicked the Constitution to the curb and if the Founders — who sacrificed so much for liberty — were alive today they would surely weep at our foolishness.
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