The Eight Reasons for the Fourth Amendment Guarantee
of Security in our Persons, Houses, Papers and Effects
Mark A. McDonald
Often, regarding surveillance or government intrusion, people will say that they do not have anything to hide, and so do not mind any government surveillance whatsoever. This thought assumes that having something to hide, or crime, is the only reason that people want or need privacy. Our nation is under attack from foreign and domestic enemies and an increasingly criminal population. While this has almost always been true, there are particular concerns about the present time. The explosion of technology and the need for security has made it appear that privacy was a luxury of the past, an anachronism of a two hundred year old document ill suited to the present time.
Privacy is not mentioned directly in the Fourth or Fifth Amendments, but is a way of stating what is called a penumbra or shadow implied by the liberties that are explicitly guaranteed. The principle itself is involved in the very beginning of the Revolution, as is evident in the teaching of James Otis that “A man’s home is his castle.” Opposition to British searches is as old as the requirement that we have representation if we are to be taxed. Until the past year or so, the liberty from unwarranted intrusion was considered fundamental to political liberty, and so was included in the Bill of Rights amended to the Constitution. The Fourth Amendment 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, and no warrants shall issue, but upon probable cause, supported by oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
General warrants are unconstitutional. As a fundamental liberty, the Supreme Court has incorporated the Fourth Amendment to require that it be observed by the States.
We cannot overestimate how fundamental is this principle of the Fourth Amendment. John Adams calls the action of James Otis “the first scene of the first act of opposition” to the arbitrary claims of Great Britain, when Otis resigned as the King’s Advocate General in Boston rather than enforce the new policy allowing royal customs collectors to search a merchant’s establishment. “Then and there, the child of liberty was born” (Adams, Microsoft Encarta Encyclopedia, 2005).
Spying is a very deep question, difficult to plumb to its depths. Between nations, spying implies hostility, and is, like a threat, a form of assault, portending war. It means that one intends to use another for that one’s own purposes, contrary to the mutual benefit that characterizes friendship. Spying is legitimate and necessary as a tactic in war, and against certain forms of crime. It is also used by parents, governing their offspring for their mutual benefit, but especially for the good of the child. Parents know and try to provide for the deficiency of the human child. But government does not know and cannot provide for the deficiency of adult humans, as a parent can for a child. Paternal rule over adults is offensive to liberty. Spying is hostile or like an act of war, and a government at war with its own people is another way to define tyranny.
The depth of the question of spying is evident in the results, where, similar to a principle of tragedy, the very thing feared is ironically the result of the tragic error: At present, the leading cause of leaks in our most sensitive executive agencies is ironically the violation of the Fourth Amendment. Our attempt to sacrifice our constitutional liberty as a whole on the altar of security is similarly tragic.
We are sometimes reassured that our foreign intelligence agencies do not spy on U. S. citizens. But we must recognize the natural rights that are our nation’s founding, not to mention the domestic rights of the citizens of friendly nations. American civil rights do not protect 96 percent of the globe, except by example. The agencies are now merged, so that these can better cooperate. dissolving what had been so fundamental a distinction that competition between the agencies, as between the branches of the military, sometimes led to accidental errors.
One form in which the question of privacy appears is that of whether the executive branch of government needs to present evidence to the judicial branch, and gain a warrant prior to various sorts of intrusion, such as wiretapping, tracking or bodily search. This implies that we have not given our government the power to do these things when it lacks a particular reason. Famously, one U. S. Representative has answered an entire argument of the executive agencies with the three word sentence, “Get a warrant!”
Until the revealing of the extent of government surveillance by Edward Snowden, recent terrible events had resulted in the call for even more surveillance, without any suggestion that the surveillance of surveillance, by the people and our representatives, also be increased. Yet we have little recourse when these powers are abused, and Congress does not seem to have exercised any oversight of the executive branch since the Pike and Church committees of the 1970’s.
And so it seems useful to give an account of eight or so reasons that we need the Fourth Amendment to be observed. The eight reasons, each to be discussed briefly, are:
- The Mistakes of law enforcement
- The Prejudice of law enforcement
- The Criminality of law enforcement
- The Impossibility of Compensation
- Legitimate secrecy, in a common form relating to the private lives of individuals
- Legitimate secrecy related to government operations and public matters
- The citizens have what has been called, in a Supreme Court decision, a right to be left alone.
- Ignorance: We do not know the good.
The example of drunk driver check lanes is a good analogy. Without a good reason of a certain kind, our government does not have the authority to impede our liberty to drive down the highway. The driver may, for example, be on their way to the death bed of their mother. That is, the government does not have the power to sacrifice every private good, as being present at such a scene, to its priorities, for example that the road be cleared of drunkards. This is what it means to say, as in the Fifth Amendment, that we will not be deprived of liberty without due process of law. Liberty and privacy are closely related. James Otis explained, in his court case, that the general warrant “is a power that places the liberty of every man in the hands of every petty officer.” An invasion of privacy is usually a violation of liberty, though it is argued that what people do not know will not hurt them. The power to search or survey brings with it powers of individual officers over individual citizens. For example, if one speaks to the officer regarding rights, he might be placed on a list for future surveillance and interference. Our liberty to proceed down the road is also a parable, or an analogy regarding the way we proceed through life in general. If The Constitution is set aside, our roads might be safer in the short term. But without our constitution, it will matter much less where we are going. In the long run, under a tyranny, our roads will be less safe in any case.
- Mistakes are the first of the eight reasons. It is very difficult to judge appearances in human things, and there are constant errors of every sort. An example is the error of the FBI that Martin Luther King was a communist, and so ought be proceeded against. We still have yet tho learn the truth about this interference. Human opinion is limited, and so we limit government to the necessary and public matters. Another FBI error involved raiding the wrong address, with the result that the resident was shot to death. The error could have been avoided had they obtained a warrant. Included in the category of mistakes is the truth that any information our government collects is only one counterintelligence step from being collected by our enemies, and any others with ill intent. An example is the escape of Edward Snowden to Russia, and the question of how much information was then compromised. The solution is, whenever possible, to not collect the information from the beginning, in place of our current practice of collecting whatever information whenever possible. A second solution is that when citizens attempt to address constitutional problems through legitimate government channels, the separation of powers must be in place, and the concerns must be addressed.
- The prejudice of law enforcement was evident in the extreme in the civil rights movement in general, and against the freedom riders in particular. Such prejudice is pervasive, and always with us, as a part of the human condition. We pride ourselves on the achievements of a half century ago. But what are our injustices, those not of years gone by but of the present age? Common opinion does not allow these to be recognized today, though if we try very hard, these might become evident to common opinion in the future.
- Police are often criminal, from small ways like name dropping at a traffic stop, to large ways, with lots of money at stake. This too has always been with us, and the wonder is that in America we do so well at opposing corruption. The New York City Police Department described in the novel Serpico is a good example. The use of police information for private purposes, too, is so pervasive that it is assumed, as when one is dating the daughter of a police officer. Will they not use their police powers to check to see if he is a sex offender? And why not also his credit history, to find out if he has secret money we might inherit, or none, so he can be rejected for one who does? IRS agents enjoy the tax forms of the stars, and information is sometimes sold. And why should police departments not mine and sell their information for marketing purposes? This is not to mention leaving oneself open to illegal purposes, like identity theft.
- When harms occur as the result of search or surveillance, there is usually no way to compensate the citizens for damages. For example, if one’s house or car is ransacked during a search, the citizen is not compensated for the time and repairs. Sometimes, the citizens may sue, but these occasions are rare and involve only the glaringly obvious cases. How will we compensate the one who misses his mother’s deathbed so that the police could be sure he is not drunk? Covert surveillance, too, is done secretly, so that the cause of the harms is usually never known. If this cause is suspected, the confusion only adds to the damages, and is never compensated. In our world, things once thought only by the mad, such as “They’re watching us,” or interfering in this or that way, have become the truths of common sense.
- In private, one may set aside concern for appearance and get on with the business of living. In public, there are all sorts of manners that begin from our concern not to alarm, inconvenience or confuse our fellows. This is the meaning of the open handed wave, showing that one is peaceful. There are legitimate reasons for secrecy, from surprise parties to things another is not prepared to know, white lies to protect peoples feelings, affairs that fulfill a soul after years of tortured, loveless marriage, and many other things in nature for which law is not able to make provision. Political persons understand the need for privacy regarding their political opponents and enemies, even as private persons have enemies and thieves seeking to use things known for purposes that may be harmful. Businesses, too, routinely practice and defend against corporate spying. A whole police department was recently hacked and their computers held for ransom. The FBI told the police department that if they wanted the information, needed for trials and every function, they had simply better pay!
- There are public forms of legitimate secrecy, from the privacy of voting to the ability to bring a wiretapping case against the FBI without intrusion, to that violated in the bugging of the political opposition, as occurred in Watergate. Police methods are also private, and require all sorts of secrecy, which makes their operations difficult or impossible for Congress or anyone else to oversee. A comical intrusion would be when police stumble on federal operations, coming to know things that it is even dangerous to know. We sometimes say ironically that we are concerned to protect the privacy of these secret agencies, whose job requires the violation of privacy, and again this is done often without warrant.
- According to Justice Louis Brandeis, in the Olmstead case, there is “a right to be let alone…the right most valued by civilized man.” And in the Griswold decision, the court refers to “a right of privacy older than the Bill of Rights.” Under this heading comes the right to be without the psychological pressure of continual surveillance. Don’t look at the girls in the grocery store! And especially, do not talk to children, smile or wave. And what if one has friends that are of a nationality with whom we are at war? And what if one writes letters to a friend who has moved to Israel? Can we discuss politics and religion? What if one’s home is invaded for bugging, and he thinks his wife is having an affair? What if one is tailed and thinks it is a private detective? People have a right to be free of unwarranted government intrusions great and small, and every intrusion leaves a liability, which, as we have said, usually cannot be compensated. This liberty touches on the very foundation or purpose of our government in the second sentence of the Declaration of Independence: the purpose of government is “to secure these rights.” A crime in U. S. law is when one citizen violates the rights of another, harming them in their rights to life, liberty or property. Where government is not securing these rights, or where no crime against them is committed, government has no business. The presumption is in favor of liberty, because the citizens are prior to, and more important than, the purposes to which government would use them.
- Government is limited in America because it cannot know or proscribe the good, regarding beliefs and thoughts, as we all know, but also for example regarding whether one ought have wine with dinner and a cigar afterward. There can be unconstitutional laws, for example one forbidding a certain religious or political opinion. These unconstitutional laws are limited in their effect if government is limited to the public sphere. Majority opinion is always on one kick or another for which it has decided to set aside the Constitution. But because majority opinion is limited in its knowledge of the good, we have a constitution with a bill of rights proscribing the majority from ruling in certain matters on which it has proven through history to be notoriously incapable. The Bill of Rights is antidemocratic in this sense: Our founders knew that in order for the people be able to rule on the public matters, the majority must be prevented from trying to rule on other matters, such as those explicitly stated in the First Amendment. In order to legally continue the present surveillance society, America would have to change its constitution. In this sense, our current government is illegitimate.
Without privacy, we are subject to ignorance, error and criminality. The best things in human life are notoriously misunderstood and suspicious. Socrates and Jesus were both put to death by their polities due to ignorance, or because they were misunderstood. Convention understands the good and just to be of only one common sort, and all unknown things are considered bad, along with the things that are genuinely bad. Socrates compares this habit of the guardians, even in the best regime, to that characteristic of dogs, by which they judge friends and enemies according to that with which they are familiar. The Constitution was to ensure that rather than be subject to the rule of ignorance and malice, the citizens are to be left alone when they are not bothering anyone.
These eight are reasons of one sort, but there is another sense of the word related to purpose, a different kind of reason and a different kind of cause. Though privacy is necessary to the cultivation of the best things, and human happiness, the purpose of the Fourth Amendment is not only to secure privacy for its own sake. From the voting booth to the campaign office, privacy is necessary in order for political liberty to continue. A British member of Parliament recently noted that because free government depends on the free expression of opinion, free government cannot continue in the surveillance state. People will cease to speak their minds, inhibiting the free play of opinion. Solutions to serious problems, like the Flint water crisis, arise from a people in liberty, where subjects of tyranny fear to act on their own. In the surveillance state, the democracies will lose their advantage over tyranny. World War II was won not because we have an unlimited executive, but because we are a free people.
The effect of our current practice is the same as that of the British customs agents empowered by the law which James Otis opposed. He wrote:
Everyone with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control, imprison or murder anyone within the realm…Now one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle, and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Customhouse officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court, can inquire. Bare suspicion without oath is sufficient.
One’s home, too, is an analogy, easily extended to one’s papers, and hence to the internet. The suggestion is that we are the owners of our information. The assumption is not that we must join yet another list by opting out. Every power we give to government may be only a single hack or a single payoff away from being in the hands of organized crime or foreign powers, if the officers, their servants or their instruments are or come to be subjected by these powers. And can we be sure that government in thirty years will not be a tyranny with interests yet unimaginable?
One of the very few ways that citizens can ensure that government obeys the constitutional limits is through elections. We must elect representatives to Congress, and executive officers who are still dedicated to the American Constitution, and willing to oppose the executive agencies, if only to keep these agencies free of corruption. There is no practical way to charge police with violating the constitution, and even no way to investigate, except in extraordinary instances. That is why the courts, following what is called the “exclusionary rule,” will not allow evidence gathered illegitimately to be used in court, even if the evidence is true. This, however irrational in the short term, had been our only defense against the executive, the only way to prevent any and every possible surveillance. But if the unconstitutionally seized evidence is not essential, they can proceed to evidence that is usable in court, and so violations are routine. When no crime is occurring, and no usable evidence found, they might at best simply go away. They surely do not send a letter apologizing for the intrusion or offering to repair any inconvenience. This means that, as things are, there is in practice no Bill of Rights regarding the covert actions of government. A suggestion would be to clear all covert actions with an oversight committee of congress that has security clearance. Then when the citizens have a question or complaint, our representatives could address the matter, and we would not be left as single citizens addressing the executive directly. The executive would not then continue to develop while answerable to no one on these matters. Our current congress flatly refuses to raise any questions of oversight, to hear or admit to hearing reports of possible violations of the Constitution. Again, we must change this through elections, so that our representatives insist upon oversight, accountability and meaningful recourse when our now routinely extra-constitutional measures have harmful or unjust consequences.
A very interesting special case is seen when police use women, or the attraction of love, to survey or ensnare people. (I say women, because despite our obligation to observe the common opinion about equality, crime is, like professional sports and the building trades, still overwhelmingly male, and heterosexual.) This use of romantic matters occurs at every level of law enforcement, and is cultivated. One way that it may be cultivated is when women facing large sentences are put to work if they are able. This is prostitution. In one publicly known case in Macomb county, a police agent was planted in a high school, and a student asked her to the prom. I believe the undercover officer even attended the event. That ought to make an enduring memory for the scrapbook, and the education of a dedicated future citizen. Were this to occur to one’s own son or daughter, robbing them of their prom…
We have not yet mentioned the George Orwell novel 1984, but if I remember correctly, Winston discovers that his secret lover is a spy.
Love is very useful to surveillance, because we try to show what we are, what we are proud of, and our big plans for the future. Once it is assumed that police can set women on us, they need not worry about the constitutional limits that pertain to intruding from the outside. They can be inside our houses, our papers, our souls and our bodies. Do our representatives even know that these things are being done? Have they asked the executive how extensive such practices have become, and insisted upon being told the truth?
We do not understand love. The majority, like the majority of scientists, for the most part think it is no more than sex. But there is an ancient teaching that love is based on the image of God in the soul or man, and we do not know that this teaching is wrong. It is explicitly called a mystery. Love is a part of the pursuit of happiness, which is a right guaranteed by the second sentence of the Declaration of Independence. This second sentence is spelled out in the Bill of Rights, as in then two religion clauses, and itself has the status of fundamental law.
We are not obligated for how we appear, but for how we are. When others make errors about how we appear, it is not necessarily our problem, though we can, to be polite, take care not to confuse people. There is a spiral of appearance and surveillance, the vortex of which can be disastrous. We appear questionable to those whose job it is to be vigilant, or paranoid. Yes, the field employees of the CIA and FBI can be quite paranoid. It is not only a characteristic of suspicious private persons. This has consequences that are unjust, especially if we are not doing anything wrong. Then we get angry, and try in some way to oppose the injustice, or at least to be free of it. This then appears questionable, leading to more surveillance. We object again, but to reverse the Miranda warning, nothing that one says will be used for anything except against them. Like a limed bird, the more we struggle, the more we are injured and entangled. The spiral continues. We are responsible not to be sucked into the vortex of this spiral. But not everyone is capable of stepping out of the spiral, for example by realizing the principles of what is our business and what is not our business, and accepting that even the just sometimes suffer injustice. But for the principles of justice, we cannot turn to modern psychology, or anything else in our education, whose goal– ask our governor or president– is nothing but jobs and technology. The majority, it seems, can applaud for nothing else, except perhaps security. Justice in education was set aside nearly a century ago, when we realized that there is no truth regarding ethics, but only culturally conditioned opinions, all of which are equal. The exception is that it is unjust to think otherwise.
And this is why the poverty of the liberal arts in our age of luxury is the unseen national crisis. We might write letters to congress, but those who might read them do not understand that even that we are exercising a constitutional right to petition our government for the redress of grievances. They seem to know only that there is something wrong with those who write letters to congress. These writers are often thought to be either irrelevant or dangerous, though they may be the only ones involved in a matter who are not being paid for their efforts. Perhaps we ought watch them. The only effect these letters have might be to increase surveillance on the sender, and if these are read, it may be only for pertinent content, where anything one says will be used only against them. We do not want to do this to 100 people, or we just might get five or so in the vortex.
It would not be surprising if– in addition to some video games and our promiscuity regarding guns– the extreme surveillance dawning upon our society were itself causally related to the new terrible events now becoming common. Our psychology and our psychiatry are not capable of even raising these questions, though if one is concerned or having difficulty “adjusting” to the new world we live in, they are sure to have a pill for us. These pills are another possible cause of the terrible events, though no money will appear to examine the issue. Such an inquiry may harm corporate interests, in the short term, to consider what might be the unknown side effects.
The Americans, then, are sacrificing their liberty on the altars of security and marketing. As in a tragedy, in the end we may, as Benjamin Franklin said famously, have neither. Do we really want the Russian Mafia to know what kind of shampoo we use? And why not also allow anyone to track our location, or that of our representatives? One is tempted to warn that we will learn these things the hard way if we as a people do not more thoroughly think through this issue of privacy. But the warning itself could be construed as a threat, and we are trying to opt out of the vortex.