March 13, 2012 – Essay #17 – Amendment IV: Warrants Must Describe the Place and Persons With Particularity – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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http://vimeo.com/38416219

Amendment IV:

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 particularity describing the place to be searched, and the persons or things to be seized.

Amendment IV: Particularity of Warrants

Limitation of the power of the government is not one of many possible approaches to governing under the U.S. Constitution. It is the very structure of the Constitution itself. Our Constitution is primarily a limitation on what the government it charters can do. The first ten amendments constituting the Bill of Rights, in particular, are not affirmative grants of privileges from a beneficent state to its subjects but a restrain on government in the interest of protecting the preexisting rights of citizens,

The structure of the Fourth Amendment, for instance, makes clear that the Framers understood the rights it protected from the government to be existing rights. This is consistent with the Framers’ entire approach to constitutional government, an approach informed by careful study of history and, specifically, their own experience in self-government and its opposites. Much of that experience, of course, was gained as subjects of the British Crown and in the effort to respond to abuses of English power in the colonies, ultimately leading to the decision to seek independence.

The decision to include in the first set of amendments to the U.S. Constitution, a requirement of particularized warrants is a key example.

The primary relevant experience of the Framers on this matter came from the general warrants, called writs of assistance, used by the British to conduct wide-ranging searches for contraband in the colonies. A writ of assistance is court permission for government officials to conduct a generalized search, for instance for goods on which customs fees have not been paid. They contrasted with a more specific search warrant that would specify who, what and where to be searched in some detail. The practical effect of the difference should be obvious. If a government official is allowed by court to go into all the homes on a block looking for anything on which taxes have not been paid, you have a significant intrusion. If the court instead says that these officials can go to 555 Whatever Lane and look for money that has been stolen from the downtown bank, the intrusion is dramatically less.

The use of writs of assistance in the colonies provoked understandable protect. John Dickinson, in his 1767 Letters from a Farmer in Pennsylvania, noted the act of Parliament allowing for these writs empowered customs officers to “to enter into any HOUSE, warehouse, shop, cellar, or other place, in the British colonies or plantations in America, to search for or seize prohibited or unaccustomed goods [meaning goods on which no customs had been paid].” He pointed out that while those kinds of writs had also been issued in England, “the greatest asserters of the rights of Englishmen have always strenuously contended, that such a power was dangerous to freedom, and expressly contrary to the common law, which ever regarded a man’s house as his castle, or a place of perfect security.” Thus, Dickinson argued: “If such power was in the least degree dangerous there, it must be utterly destructive to liberty here.”

The experience of the colonists with these practices bore fruit in the newly independent States. The 1776 Virginia Declaration of Rights, the Maryland Constitution of the same year and John Adams’ 1780 Constitution for Massachusetts all required that warrants for searches and seizures be specific in describing the place to be searched and the subjects of the search or seizure.

These precedents, of course, were adopted in the drafting of the Fourth Amendment, the language of which clearly prohibits the broad-wide-ranging searches so abhorrent to the colonists. It does so by allowing only search warrants “particularly describing the place to be searched, and the persons or things to be seized.” This is the particularity clause.

A Connecticut case from the early Nineteenth Century exemplified the type of warrants the Fourth Amendment was created to prevent: “it is not only a warrant to search for stolen goods supposed to be concealed in a particular place, but it is a warrant to search all suspected places, stores, shops and barns in Wilton. Where those suspected places were in Wilton is not pointed out, or by whom suspected: so that all the dwelling-houses and out-houses within the town of Wilton were by this warrant made liable to search.” (Grumon v. Raymond, 1 Conn. 40, 1814.

Today we would be shocked if a court were to authorize police to search an entire town for stolen goods. Yet, these kinds of warrants were commonly allowed in England prior to American Independence and seem to have been issued even into the 1800s here. What happened to change the legal culture?

Part of the answer is the Framers’ ability to apply what they had learned from experience. Americans had experienced the oppression of broad, intrusive searches and this led them to reject these as a proper instrument of government. They then ensured the lessons learned were reflected in the law through the Fourth Amendment.

The Framers wrought well and we are the inheritors of their wisdom in limiting the power of government. The English may have noted that the home is a case but the Fourth Amendment’s particularity requirement helped to give that concept the binding force it needed to be a reality.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

9 replies
  1. Thelma Wright
    Thelma Wright says:

    This says it all:
    “Framers’ ability to apply what they had learned from experience. Americans had experienced the oppression (undr a monarchy) of broad, intrusive searches and this led them to reject these as a proper instrument of government. They then ensured the lessons learned were reflected in the law through the Fourth Amendment.”
    LESSONS LEARNED that we need to remember how the Founders came to their conclusion, and it is so SCARY to see the Progressive/Liberal Democrats and this President in particular, trying to re-write our Constitution.

    Reply
  2. Linda & Halley
    Linda & Halley says:

    We enjoyed learning about the early American history that fed into the adoption of this amendment…our cheer for it is : “hey, let’s hear it for Amendment Four. You must have a warrant, to come through MY door!”

    Reply
  3. Marc W. Stauffer
    Marc W. Stauffer says:

    The government continually tries to circumvent this through electronic means. As an example; many residents of my county complained that their rights were being violated when a DEA helicopter was used to overfly and “examine” private property for illegal marijuana grows. I don’t know what kind of equipment they used, but it is a bit unnerving to have an unmarked helicopter hover over your neighborhood or home. Now, I will be the first to say i do not want to stumble upon an illegal grow, but I will say I felt unfairly “examined” without my permission and I truly do not know what that equipment could “see”. This type of invasive act is, in my humble opinion, what the author of this article is saying happened to the colonists. I know many residents of the county complained to local government and the residential overflights stopped and they focused their further searches on public lands. If we want to keep our rights and freedoms we have to stand up and expose unauthorized government intrusions into our lives.

    Reply
    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      This is similar how foreign countries feel their sovereign rights violated when unauthorized, especially military aircraft, fly over that country. And yet we have satellites that fly overhead and can see anything. So as long as the equipment is high enough, it has been deemed somewhat OK but still invades privacy. And now other governments with satellites are able to do the same thing. The GPS is a system that has drawn the ire of private rights too in giving off people’s and private property position. I remember also a real estate tycoon setting up comparative marketing analysis photos of properties in the area where he was selling. And he would use Google maps or something to get to places. He discovered a satellite photo of his neighbor’s tall-fenced in property that had a pool and patio deck. The photo happened to have caught his neighbor sun-bathing bearing all supposedly not for the world to see.

      Reply
  4. Patricia Quinn
    Patricia Quinn says:

    Thank you Janine for getting all involved including children in knowing the constitution
    to try and save our country from the unAmericans, like the Administration of 08-2012

    Reply
  5. Barb Zakszewski
    Barb Zakszewski says:

    Excellent essay! All the essays thus far have presented information that I’m sure most of us were not aware of. It is imperative we educate ourselves both the Constitution and its historical context and reasoning. The first paragraph of this essay sums up the Constitution perfectly. Thank you Janine and Cathy for continuing your amazing efforts to educate us regarding the founding documents. IF we don’t know our history and the Constitution, how can we defend it?

    Reply
  6. Patricia Birren-Wilsey
    Patricia Birren-Wilsey says:

    This is an outstanding area of discussion! In light of the creeping tyranny of the present administration, it reveals its countless unconstitutional intrusions.
    I value your website contributions highly and hope to direct traffic to them by providing your link(s) to my website’s viewers.
    Thank you for your tireless work to educate all generations. Our Founders must be smiling!

    Reply

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