On September 25, 2001 WND ran my article which was the first published suggestion to sunset what was soon to be named “The Patriot Act.” With that sunset still at issue as Congress grapples with renewing FISA, I will share parts of a lengthy yet-to-be published
scholarly article about the origins, purposes, and original meaning of the Fourth Amendment. Hopefully these posts will help readers analyze the current debate. Part One was entitled, “The Fourth Amendment: A Right of Security against Government Trespass.” Here is Part Two.
Although the Fourth Amendment protects the right of security in physical things, the dangers it is designed to combat go beyond trespass against oneself and physical property.
The history of using search and seizure to target, disrupt, penalize, and intimidate dissent further highlights why warrants issued unilaterally by law enforcement officials and administrative agencies, or other violations of the warrant requirement, violate the Fourth Amendment. The separation of powers inherent in the Fourth Amendment — indeed its very structure — creates a process and is intended to act as a check on searches and seizures. The process applies to warrants before their issuance, reflecting both the nature of unlawful (unreasonable) trespass and the inherent temptation of those in power to use search and seizure to intimidate their critics, political and ideological opponents, or those with whom they merely disagree.
Indeed, just the costs and disruption of one’s activities caused by replying to an administrative subpoena (aka, civil investigative demand), for example, can be intimidating enough to discourage dissent or the free exercise of other rights. As Justice Wiley Blount Rutledge wrote in the 1946 Oklahoma Press Publishing case, “Officious examination can be expensive, so much so that it eats up men’s substance. It can be time-consuming, clogging the processes of business. It can become persecution when carried beyond reason.” Today this is described as “the process is the punishment.”
In the context of the FISA sunset, there is warrantless FBI spying using National Security Letters. See for example, from AP, “Conservative revolt in the House blocks effort to reauthorize a key US spy tool.” And, see even from a pro-Blob source the May 19, 2023 Reuters article, “FBI misused intelligence database in 278,000 searches, court says,” (“the court found that searches as part of probes into crimes between 2016 and 2020 violated the rules because there was ‘no reasonable basis to expect they would return foreign intelligence or evidence of crime’, although the FBI believed this was ‘reasonably likely,’ the decision said.”).
Dissent may be considered a greater threat to the community and even the nation when it is subversive. Yet in 1972 the U.S. Supreme Court considered “the delicate question of the President’s power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval.” The search in United States v. United States District Court was focused on domestic organizations intending to subvert the government, a practice that “[s]uccessive Presidents for more than one-quarter of a century [had] authorized . . . in varying degrees, without guidance from the Congress or a definitive decision of this Court.”
In arguing for the legality of warrants issued unilaterally by the U.S. Attorney General, “the Government asserted that the surveillance was lawful, though conducted without prior judicial approval, as a reasonable exercise of the President’s power (exercised through the Attorney General) to protect the national security.” In ruling against such unilaterally issued warrants, Justice Powell’s opinion noted the history of the interrelationship between First Amendment rights and the Fourth Amendment:
National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of “ordinary” crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech.
Historically, the struggle for freedom of speech and press in [pre-Fourth Amendment] England was bound up with the issue of the scope of the search and seizure power, Marcus v. Search Warrant, 367 U.S. 717, 724 (1961). History abundantly documents the tendency of Government — however benevolent and benign its motive — to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect “domestic security.” Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.
Justice Powell goes on to describe the irreplaceable purpose of neutral judge-issued warrants in the Fourth Amendment regime as part of the separation of powers inherent in the Amendment and essential to protect liberty:
Inherent in the concept of a warrant is its issuance by a “neutral and detached magistrate.” Coolidge v. New Hampshire, supra, at 453; Katz v. United States, supra, at 356. The further requirement of “probable cause” instructs the magistrate that baseless searches shall not proceed.
The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.
William Cuddihy in his Fourth Amendment treatise (THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING 602-1791, (2009)) describes how searches were used to “stifle religious dissent,” whereby Protestant monarchs would target Catholics, and Catholic monarchs would target Protestants. Professor Laura Donohue writes: “The Tudors and the Stuarts relied on the general warrant to head off political opposition.” In their works on the origins of the Fourth Amendment, both Cuddihy and Donohue focus on the nature of warrants, and track the incremental abuses of the search and seizure power by English kings, next the great rejection of abuses in the 1760s in the English cases Wilkes v. Wood, Leach v. Money, and Entick v. Carrington, then through the American colonial precursors, and culminating in the Fourth Amendment itself. The history of the right of security that is the lodestar of the Fourth Amendment is a fascinating reflection of the ebb and flow of liberty itself, showing that the right must be reclaimed or restored from time to time, and its principles sharpened by articulation of their foundations whenever they are lost or ignored by the governments in power.
While the common law foundations of judge-issued warrants were described by the great 17th century English jurist Matthew Hale in his History of Pleas of the Crown, it was subsequent English Justices William Murray Mansfield and Charles Pratt in their decisions during the 1760s who articulated certain key principles of how unilaterally issued executive warrants and discretion of searchers were inconsistent with the protections against government trespass on the security of papers in matters of dissent.
The general warrants, even those such as the colonial Writs of Assistance issued by judges, violated a key element of the common law for the protection of liberties. It was the unique authority of judicial officers to direct search or seizure based on factual and legal cause presented under oath. Leaving discretion to the searching agents, which was just one offending element of the general warrants, removed judicial direction and control of the warrant that justified trespass against the right of security.
As Professor Donohue writes about Justice Mansfield’s decision in Leach v. Money, “A critical misstep [of the general warrants] was the absence of a third party, standing in discernment of the evidence, to authorize arrest, search, and seizure: ‘The magistrate ought to judge; and should give certain directions to the officer.’”
Administrative subpoenas and other unilaterally determined searches, for example, even those that are specific in their nature, evade detached and neutral judicial discernment of the evidence of suspected wrongdoing (the probable cause) before issuance. This can and does enable the targeting of dissent and other liberties. Targeting dissent has reverberating or domino effects. Professor Donohue writes:
It would be difficult to do justice to the full range of arguments that animated the rejection of warrantless search and seizure, general warrants, and specific warrants lacking the requisite particularity. Yet similar themes reverberate in English and American treatises, legal opinions, pamphlets, and orations. The right to be secure in one’s home was one of the principal concerns, accompanied by the right to a private sphere within which thoughts, beliefs, writings, and intimate relations were protected from outside inspection. The Founding generation voiced concerns about the harms that could ensue from giving government access to information and thus providing officials with the power to head off political or religious opposition. Information obtained could be used to embarrass citizens or to harm their relationships with others. Even the most innocent in itself, information could be combined to make it look as though the individual were engaged in illegal activity. Structural harms could also follow, with the targeting of the other branches’ personnel, or of state and local leaders, undermining the separation of powers and federalism.
From Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1191 (2016).
It has never been a secret to government officials that one of the most effective ways to censor and intimidate dissent without an obvious appearance and transparency of violating the First Amendment is to use the power to search and seize. Hence, attention to correct application of the Fourth Amendment helps protect political, religious, scientific, medical and other opinion that may be deemed politically offensive, too controversial, or apostatical by rulers.
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The Right of the People to be secure in their persons, houses, papers and effects