This is the third article in a series about the origins, purposes, and original meaning of the Fourth Amendment. Part One discussed “A Right of Security against Government Trespass.” Part Two discussed the history of the Fourth Amendment protecting dissent.
Part Two of this series explained how the original purposes of the Fourth Amendment have peripheral but important reasons of protecting rights beyond the four objects (persons, houses, papers, and effects) of the Amendment. The history of the Fourth Amendment shows its original purposes of security included protecting one’s livelihood from unlawful government trespass. And keep in mind that the common law understanding of “trespass” was somewhat broader than we might think of it today (“Forgive us our trespasses . . . .”).
Abuses of search and seizure powers have long been targeted at how citizens make their livings. (Think how organized crime does the same.) It is easy to see why the Fourth Amendment clearly has a role in protecting one’s livelihood from unlawful government trespass.
Justice William O. Douglas famously used the metaphors “penumbras” and “emanations” to describe constitutional protections of certain unenumerated rights, which terms have been criticized — whether rightly or wrongly — as suggesting the protection of rights outside the scope of the Constitution. When studying the history of the making of the Fourth Amendment, one can conclude that Douglas had a point. Indeed, the Fourth Amendment has been construed and is widely understood to protect “privacy” of some sort, although that word is not in the Amendment.
The Fourth Amendment and the four objects protected by it did not create additional rights not known to the Founders. The four objects identified in the Fourth Amendment were already protected under English common law concepts and principles of trespass whether by private parties or the government. The Fourth Amendment does not suggest an expanded reading of the mostly neglected backstop Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”).
Even the prohibition on general warrants, which is often seen as the crowning achievement of the Fourth Amendment, created no new rights because it merely corrected (or settled) a corruption of search and seizure powers in colonial America and in England, and is really no more than an articulation of the principle that warrants are judicial in nature, and are to be directed entirely at the control of neutral judicial officers under antecedent protocols.
General warrants violated that principle even when issued by neutral judicial officers (as was the situation with the Writs of Assistance in England and colonial America in the first half of the 1700s) because they left discretion with non-judicial searching officials or agents. Administrative subpoenas, for example, even when they may be specific in targeting papers and effects nevertheless breach the control of neutral judicial officers by their very issuance by non-judicial officials and absence of the antecedent protocols required by the Fourth Amendment. That lack of judicial control preceding issuance of these search writs makes administrative subpoenas illegal from an originalist perspective, yet they remain widely used against businesses. So do National Security Letters. These violate judicial control over a power to “reasonably” trespass on the right of security expressed in the Fourth Amendment.
A metaphor better than the one used by Justice Douglas, therefore it seems, is that a constitutional “fabric of liberty,” in which rights are interwoven, runs through the entire Bill of Rights. The right of security in what is ours — our persons and property — helps protect the security of rights of conscience and dissent. The right to bear arms, for example, helps maintain the security of our lives and property. Due process and juries help secure all unalienable rights. Conversely, our right to dissent helps protect our property, livelihoods, and rights of conscience. Solitary rights understood by the Founders and guaranteed by the Constitution, therefore, are strengthened by their interwoven nature. It is a quite brilliant fabric that, by reason and necessity, relies at least in part on the separation of powers structuring government to best protect liberty. As stated, the Fourth Amendment created — or better stated, identified — no new rights, but does create a shield protecting other rights.
When the Fourth Amendment is violated, therefore, whether on a case-by-case basis or through the institutionalized method of administrative subpoenas and National Security Letters, there may be a host of liberties negatively affected to the detriment of individuals and the community at large besides the immediate trespass, as with dissent. A trespass on Fourth Amendment rights can set off a chain reaction of infringements on, or intimidation of, the free exercise of other rights. This, it seems, explains the great temptation of despotic rulers to use search and seizure powers to achieve their goals. The Fourth Amendment, viewed as part of the fabric of liberty, is thus seen not as an impediment to criminal prosecution, but a protection of the American way of life and liberty understood by the Founders.
But is a right to one’s livelihood also protected peripherally by the Fourth Amendment?
One cannot credibly deny the authority of American governments to engage in certain forms of regulation of commerce subject to their respective jurisdictions. However, administrative subpoenas for example, were justified using the absurd and unfounded proposition that the authority to regulate commerce implies the power to trespass on commercial paper in transgression of the express terms of Fourth Amendment.
The 1761 Paxton’s Case challenging the Writs of Assistance, which can be credited as the seed of the Fourth Amendment (and about which John Adams later wrote, “Then and there the child of Independence was born.”) was about the violation of commercial rights of security (the case was a challenge to general warrants to search merchants’ property for violations of the Stamp Act). The Fourth Amendment, we can see, was given birth over violations of dissent (see Part Two) and commerce rights every bit as much as it is about security for persons, houses, papers and effects.
While not expressly protecting a right of commerce, the Fourth Amendment certainly seems based in the understanding of the Founders that engagement in commerce does not negate or even minimize the security of rights against unreasonable searches and seizures in a commercial context. Nor does it seem credible based in the text of the Fourth Amendment or thoughtful indication from the Founding period that when someone engages in commerce the person should expect to forego other unalienable rights. Indeed, the widespread consternation in colonial America caused by the Paxton’s Case challenge to the Writs of Assistance was centered on commerce.
Even when the nature of the commerce or one’s livelihood is illegal per se (such as selling controlled substances or managing an illegal gambling enterprise), the Fourth Amendment interposes the requirement of a judicially issued warrant after oath and affirmation of probable cause before a search or seizure of the enterprise’s papers or effects may take place. How then could the search and examination of papers of a business that is per se legal bypass what is required for a search of commerce that is inherently illegal? But that is precisely what the administrative subpoena regime does. Certainly, the Founders understood the community and personal benefits — the essential need — of commerce as part of the civil society. As Benjamin Franklin wrote, “In encouraging people to undertake difficult public services, it is prodigious the quantity of Good that may be done by one Man, if he will make a business of it.”
The transgression of the Fourth Amendment by unilateral searches by law enforcement officials and government agencies emanates from a notion that the right of the security of papers and effects may be compromised (or ignored) under the authority to regulate commerce. This extra-constitutional jurisprudence eliminated fact-based probable cause submitted under oath and affirmation before neutral judicial officers who may objectively determine its worthiness (as opposed to mere surmise or arbitrariness) prior to issuance of the writs to disgorge, search, inspect, examine, or seize papers. Using the analogy to the power of visitation to justify breaches of Fourth Amendment protections, as was done the progressive New Deal Supreme Court, fails upon closer examination of the internal affairs purposes of that doctrine (contrasted with enforcement of the civil or community laws).
There is historic support for examination for product safety of certain goods that enter the stream of commerce, although there were at times a tainted, monopolistic nature of these searches making them quite open to abuse. William Cuddihy notes that “general searches of some sort were instituted toward at least sixty-eight guilds and trades between 1298 and 1692. The legal foundations for these searches were as diverse as the guilds themselves,” and included “prevent[ing] an influx of foreign merchandise.” The searches were often conducted by the guild members themselves. Cuddihy notes both the beneficent and mischievous purposes of these searches: “In some cases, municipal officials searched to guard the public against shoddy merchandise, but, more commonly, guild personnel conducted the search to protect a monopoly on the wares that their craftsmen produced.” For example, John Day of the London printers’ guild “had an exclusive license to publish a particular religious primer of the day [and] repeatedly ransacked” the house of a competitor who distributed counterfeit copies at half the price. Day’s competitor “saw [these search] practices as an obstacle to his prosperity rather than to his religion, but he was at one with those dissenters in assuming their unreasonableness.” By the 1700s the English guilds would eventually abandon these general search practices. Source: THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING 602-1791, (2009).
Business records, of course, are protected against private trespass. Today, businesses spend substantial sums to protect the security of their records from trespass and theft. In this digital age the term “computer trespass” has become part of the lexicon. With computer trespass, hacking, or other transgressions of private digital communications and records, the losses to businesses and individuals can be enormous. Larger individual businesses frequently spend millions of dollars to protect just their digital data. This may help bring perspective to the value of damages from unlawful government trespass on business records, including emails or other digital “papers,” in addition to the direct costs and disruption of complying with administrative subpoenas or National Security Letters.
Even considering the period of the general warrants, which appears to have been one of regression of rights or at least an epoch during which the American articulation of the right of security had not been fully developed, there seems to be an absence of principles expressed at common law to suggest that the more clearly delineated Fourth Amendment protection of private papers loses force merely because commerce may be regulated. Indeed, the Fourth Amendment put “papers” on par with “houses,” which should suggest a sanctity of equal force in these objects despite the longer, historical English articulation in favor of the latter, such as a home is a man’s castle.
Without the strained resort to judicial hocus-pocus by the New Deal court, administrative subpoenas could not have survived Fourth Amendment scrutiny. And, as shown in the recent debate over renewal of FISA, there is a lack of appreciation for the original meaning of the Fourth Amendment.
The Fourth Amendment is absent any suggestion that the commercial nature of private papers should lessen guardianship against government trespass on them, and its colonial context suggests that commerce does not open the door to transgression. For many people, livelihoods comprehend more than merely seeking remuneration for their labor, time, and talents. Our work and commerce are often extensions of our spiritual, political, intellectual, moral, familial, health-enhancing, or otherwise purposeful lives, even in an incorporated form. But even if for nothing more than material appropriation or basic sustenance, our livelihoods are unquestionably integral to our pursuits of happiness.
Baseless, politically motivated, or other unreasonable invasions of the right of security in papers can be economically painful and punitive, and can chill the exercise of rights. Illegal and unreasonable government trespass on these rights, it seems, should not be deemed a “cost of doing business.”
See the rest of the series here:
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The Right of the People to be secure in their persons, houses, papers and effects