Let’s gaze upon the corpse of the Fourth Amendment

Summary:  Most of the Bill of Rights has been de facto voided, as Courts sometimes — or often — rely on specious logic to ignore the word’s plain meaning.  A few phrases retain their force, giving us the illusion of liberty (eg, we are well-armed sheep).  Over time the dead area probably will continue to expand, the arrival of the inevitable again surprising us.  Here we look at the corpse of the fourth amendment.

Look, in this place ran Cassius’ dagger through:
See what a rent the envious Casca made:
Through this the well-beloved Brutus stabb’d;
And as he pluck’d his cursed steel away …

Good friends, sweet friends, let me not stir you up
To such a sudden flood of mutiny.
They that have done this deed are honourable:
What private griefs they have, alas, I know not,
That made them do it: they are wise and honourable,
And will, no doubt, with reasons answer you.

Origin of the fourth amendment

The general warrant and writ of assistance were instruments which gave British authorities the power to enter anywhere, and seize any persons or things, at anytime, with little or no regard to any expectation of privacy — with no need to show evidence relating to a specific person or place.  The battle against the general warrant was fought in the courts. Cases such as Huckel v. Money (1763); Leach v. Money (1765); and Entick v. Carrington (1765) laid the foundation of one of the most exciting chapters of legal history. In a triumph for the impartiality of British justice, aristocratic judges returned verdicts against members of their own class — condemning the use of general warrants and creating the concept of unreasonable search and seizures.   (this is a lightly paraphrased version of section 3.01 of the District Court Clerk’s Manual, from this website).

We benefit from this long struggle; the fourth amendment is a legacy bequeathed to us.  The meaning of its words seems clear:

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 was then.  This is now, our situation described by an opinion from someone who has a privileged position to watch the Constitution’s death throes.  How many violations of the Constitution and Federal laws can you count in this text?

This is an extraordinary case: Our court approves, without blinking, a police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion and without exigency — in other words, with nothing at all to support the entry except the curiosity police always have about what they might find if they go rummaging around a suspect’s home. Once inside, the police managed to turn up a gun “in plain view” — stuck between two cushions of the living room couch — and we reward them by upholding the search. Did I mention that this was an entry into somebody’s home, the place where the protections of the Fourth Amendment are supposedly at their zenith?
— Dissent by Chief Judge Kozinski of the US Ninth Circuit Court of Appeals,  USA vs Juan Herman Lemus, 18 February 2010

To see the new world we turn to our finest reporter on the front lines, Glenn Greenwald.  An excerpt from his bulletin of October 10.

Speaking of secrecy obsession: U.S. citizen Jacob Appelbaum was identified as a WikiLeaks spokesman last year. Since then, despite being charged with (let alone convicted of) no crime whatsoever, he has — all without any search warrants – had his laptop, cellphone and camera seized at the airport; been repeatedly subjected to detention every time he re-enters the country; had people whose only crime was to appear in his telephone subjected to similar harassment; had orders issued for information showing his Twitter activities and communications; and now, as The Wall Street Journal reports today, has had a secret Order served by the DOJ on Google and another internet provider for an array of information relating to his email activity (including the list of those with whom he has corresponded by email over the last two years: I’m happy to say I’m one of those correspondents).

The Fourth Amendment to the Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and that “no Warrants shall issue, but upon probable cause.” In light of everything the U.S. Government has been able to seize regarding Appelbaum without a single search warrant — laptops, cellphones, cameras, memory sticks, Twitter activity, electronic goods of his friends, interrogation via forcible detention, and now lists of his email correspondents and other information showing his email activity — is there any rational conclusion other than to view that Amendment as an absurd joke?

No, there is no other rational conclusion.  But acknowledging this grim reality would disturb us, so we will ignore the rotting corpse of the Constitution.  Instead we will pretend that all is well, or that America will magically heal without our effort.

There are none so blind as those that will not see.
— ancient proverb

For more information — a look at America’s past

  1. Our futures seen in snippets of the past, 16 June 2008 — Great men of the past comment on our situation
  2. de Tocqueville warns us not to become weak and servile, 21 July 2008
  3. Let’s look at America in the mirror, the first step to reform, 14 August 2008
  4. Can Americans pull together? If not, why not?, 29 August 2008
  5. An important thing to remember as we start a New Year, 29 December 2008 — A great speech from Morpheus to Zion, from we too can learn
  6. A wonderful and important speech about liberty, 23 July 2009 — By Judge Learned Hand
  7. Another note from our past, helping us see our future, 16 September 2009
  8. What’s the big lesson for American from the Bush-Obama years?, 13 March 2010

9 thoughts on “Let’s gaze upon the corpse of the Fourth Amendment”

  1. Excellent post. But what if we are beyond the point where liberty can simply be preserved, or restored within the framework of the existing system? Killing Caesar did not bring back the Republic– it brought more chaos and bloodshed, followed by more Empire.

    1. That’s a dark, incisive, and important question. I answered this as follows:

      (1) It is always possible to gain or re-gain liberty from a domestic ruler (but not necessarily from a foreign ruler). Depending on social and economic factors, it might be difficult. But few things are impossible for a united people.

      (2) The example of the Roman Republic can teach us much. I strongly recommend reading Christian Meier’s “Caesar: a Biography”. He shows how by the time of Caesar the Roman people had grown weary of governing themselves. The deaths of Pompey the Great and Caesar were just steps in the evolution of a new political regime — deciding who would rule.

      The next steps were developing a new worldview, one suitable for subjects (not citizens). stoicism, Epicureanism, Hedonism — and eventually, Christianity.

      (3) The human spirit never dies, entirely. If the Second Republic dies, the potential for a Thrid Republic lies in our future. Please read the last section of Forecast: Death of the American Consitution. fabiusmaximus.wordpress.com/2006/07/04/death-constitution/

  2. I just read The Lion and the Throne by Catherine Drinker Bowen. It is a 1957 biography of Sir Edward Coke. Coke was an English jurist and parliamentarian who stood up to the king in the early 1600’s was responsible for giving us habeas corpus and a number of other important laws that ended up in amendments to our Constitution. The book won the National Book Award. It’s very readable and readily available used on the internet.

    Interestingly, King Charles I claimed that he did not have to give a reason for incarcerating someone, claiming “reasons of state”. Identical to current situation where “state secret doctrine” is being used to circumvent habeas corpus.
    FM reply: Thanks for posting this reference!

  3. Do you feel that America is undergoing a political transformation in analogous to the late Roman Republic? Will we become an empire in every sense of the word?

    1. (1) Yes, in a broad sense.

      (2) The relationship of these two things — citzens becoming subjects, growth of empire — is somehow related. Explaining how requires skills and knowledge above my pay grade.

      (3) We are building an empire. A mad empire, expensive to run and providing no revenue to America. Future historians will agree that we’re not very smart.

  4. If you want to communicate without a trace over the Internet, here are the steps:
    1. Establish a mutually known dummy email account and password.
    2. When you have something to say ping your trusted mate with an innocuous email indicating he should go to the agreed dummy account.
    3. There he finds a draft of an unsent email. He reads it and deletes it. He types his response as a draft but does not hit send.
    4. You read his draft in the dummy account and delete it.

    The way things are going this might come in handy…insurrection wise.

    1. That is one process that might work, though the real danger is in deciding that you have a communications channel that works, and then sticking with it. There are techniques for traffic analysis where you ask yourself “how much bandwidth is the enemy using to communicate?” and then work backwards looking for data-streams that might match.

      From a standpoint of trade-craft I would never recommend using an email system, because those are generally backed up and messages are often kept in case the administrator is presented with a subpoena. You can see how that’s playing itself out with the increasing interest that the national security establishment has in backdooring every significant social media mechanism on the internet.

      A more traditional way (and, unless you are distinctive-looking and widely known like Osama Bin Laden) would be a dead drop. Those work and will continue to work great. If I post a certain ad in craig’s list, you go to location #1 and you’ll find the CF media card taped to the bottom of the sink in the bathroom. The card contains an encrypted volume and a bunch of MP3s. If I post a different ad in craig’s list, you go to location #2. Etc. Nowadays there are other fun options that are a bit less secure but pretty damn good. Every friday noon, regular as clockwork, I go to Starbucks and get a triple smoked fat-a-chino. You’re already there. If I don’t get my fat-a-chino, but get a bagel instead, you leave immediately and we attempt a meeting in a pre-agreed fallback location 13 days later. If I’m not there, I’ll never be there and you take it on the lam. If I do order my fat-a-chino, I pull out my laptop and my MiFi wireless access point/adapter and start surfing the web. The MiFi is set up with WPA encryption – nothing great – but it’s lost in the gigantic amount of other WPA encrypted stuff flying around any given Starbucks. You’ve already been surfing the web for a while but when your Windows sees the MiFi’s SSID it hooks to it because that’s how it’s set in your preferences. Then you can browse over to my hard drive (it’d take a bit of magic with settings in the MiFi, Windows firewall, and LAN options) and copy down the encrypted volume. When I see you leave I throw the disgusting fat-a-chino away and head to the gym. That approach could be successfully used with a variety of technologies for quite a long range; we might never know our upstream connection if we set it up that way.

      Then there’s the simple approach of building code-books. These can be built fairly easily using natural language and a random number generator, then pre-shared. It’d be a matter of very little time to write an application that would automate some of this… So, you have a codebook and I have a codebook and you watch my twitter feed. I twit “going out for pho with Phred!” and your codebook tells you that you want to go to a specific URL on a compromised server and what you get is an encrypted blob of data that is deleted automatically after a few hours. There could be dozens of mechanisms for that sort of sharing: google docs, compromised servers, a ‘corrupted’ MP3 on a music-sharing site, etc. One of my favorites would be services like RapidShare, which you can create a free account on, upload a file to, and – if you don’t log back into the account – the whole mess gets automatically cleaned up in a week.

      Think a little bit and you can imagine “insurgency-fostering” technologies that might be produced and deployed in an urban area, to produce an alternative communications infrastructure for when the powers shut down facebook, twitter, etc. The sad thing is that I have reason to know that some forces within the US’ plutocracy are looking at ways of building exactly that kind of thing, with the idea of using them to help destabilize countries like Iran and Venezuela. All I care to say about that is – if a US insurgency starts, we’ll have much better communications tools than those. Because the guys writing them are light years ahead of the government and its contractors.

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