Amendment IV

Breaking down the Amendments, part IV.

The Fourth Amendment is about as popular in modern day America as the First. The Amendment itself revolves around guaranteeing the People that the Government cannot come in to your deemed “private” life and take or seize anything without proper “warrant” which has be supported by an Oath or Affirmation. Hmm, interesting choices of words so we’ll need to briefly discuss.

Here it is:

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.

That's quite a statement isn’t it? Almost as impressive as the First Amendment so the Founders must have put some serious thinking into this one, or were bored and just rambling. Either way, it is impressive.

First part: The right of the people to be secure in their persons

Essentially this part guarantees the People of the United States of America that they themselves of sound mind and body may not be “seized” – think Miranda Rights (a later follow on in American law to an obvious oversight). This is pretty clear and concise in its statement.

Second (and I’m going to lump a few together) part: houses, papers, and effects

Ah, somebody in the room realized that while the Person themselves might be OK with this Right, there objects were not. And considering America was just coming off a Revolution where raiding houses to find information would have been very valuable to stopping said Revolution, it makes sense that they wanted this protected. What is important here though, and not to be overlooked, are the exact words: Houses, Papers and Effects. The House part is pretty straight forward, your house, easy to see, the papers part this gets cloudy in modern day – see the Founders couldn’t conceive the “Internet” nor people ad hoc handing out their private affairs to “cloud” servers and “email”.  We’ll discuss in a few. And the term Effects, well what does Effects mean? Well by all standards it means personal belonging, so things that are yours. Now pair personal belongings with Papers and you have just defined that your “email” and “cloud” information is in fact, protected by this Right…regardless of what politicians will tell you in the ever glowing light of Security.

Third part: against unreasonable searches and seizures

This part really alludes to a follow up, which comes right shortly after.

Fourth part: shall not be violated

Ah, so the Founders are serious on this one, almost the same tone as the use of ‘infringed’ in the Second Amendment.

Fifth part: and no Warrants shall issue

Essentially authority figures can’t simply grasp legal precedence without something, coming soon.

Sixth part: but upon probable cause

Boom, there it is the most critical statement in this Right, that is the method by which the Right could be removed. Probable cause is something most Americans are familiar with because they’ve inundated themselves with Law & Order episodes, but it isn’t enough to merely suspect something or is it? Perhaps the Founders can assist.

Seventh part: supported by an Oath or affirmation

Finally, some serious text here, so this Right cannot be altered by the Government/State without someone providing Oath or affirmation to the need for a Warrant to wave the Fourth Amendment and detain a person or their effects. But what does Oath or Affirmation mean? Oath, generally is a term for a statement of fact, someone testifies under “Oath”, Affirmation is a little shady, see affirmation is kind of the step-brother of Oath, it looks like it on paper but differs slightly. Affirmations are in a sense a declaration of validity without actually “testifying” to accuracy.  This again goes back to the Founders considering what they were leaving. Affirmations were relatively common alternatives in English Law to Oaths, and thus, carried over into American law. But an affirmation is not necessarily valid, it can be wrong, though the best intent of the provider – where as an Oath is a testimony of truth.

Eighth/Ninth part: and particularly describing the place to be searched, and the persons or things to be seized

And here we have the quagmire, the place and item, something policies like the Patriot Act and the 1978 FISC creation have all but minimized. See in modern day where things happen in seconds and social media has replaced news papers and face-to-face communications, it is difficult to know exactly “what” item Authority plans to seize, however, it should be pretty simple to say “who” you’re going after. Remember where I discussed DHS in the Third Amendment write up, this comes into play again. Agencies that the Government creates with such broad scopes of power in the light of Security just move more and more to gray areas that the Founders intended to be clear lines. Now this would be OK if the Supreme Court provided Amendment clarification, but this never happens, the USSC tends to sit on the sidelines for as long as humanly possible.

See the Government has no right whatsoever to capture you email, attack your social media account or follow your chats online because these are your effects, your property, the means by which they are transferred or conveyed are not defined in the Right and as you’ll see later, the 9^th and 10^th Amendment clarify that any power not specifically provided to the Government is in the hands of the States (not State) or the People, but never the Government.

So, next time your watching the news and hear something from some “leader” saying “well the Fourth Amendment didn’t define…”, remember that was not its charge. The Government is given specific powers; it does not get to pick up whatever it feels like, that right is reserved for the People and States. Keep thinking people. Keep thinking.