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Amendment IV

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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.

Thursday, April 11, 2013 – Essay #39 – The Northwest Ordinance – Guest Essayist: Kyle Scott, Professor of Constitutional Law, University of Houston

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The Northwest Ordinance–adopted in 1787 by the Congress of the Confederation and passed again by Congress in 1789 after the ratification of the U.S. Constitution to govern the Northwest Territories which included modern day Ohio, Indiana, Illinois, Michigan, and Wisconsin–is undeniably an ordinance that inherits and extends the common law tradition. This means property rights take center stage and due process of law is established as a means of protecting property rights and the rights constituent to property such as life and liberty. Read more

May 6, 2012 – Essay #56 – Amendment XIV – The 14th Amendment’s Impact on the Constitution – Guest Essayist: J. Eric Wise, a partner in the law firm of Gibson, Dunn & Crutcher LLP

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Amendment XIV:

1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

 

3: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 

4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

 

5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

After the Civil War came the Reconstruction Amendments.  Thinking about the Civil War leads to thinking about the compromises in the Constitution over slavery, which in turn leads to thinking about the Declaration of Independence.  The Declaration embodied the principles that were compromised, “the proposition that all men are created equal.”  The Reconstruction Amendments in a sense constitutionalize the promise of the Declaration and represent a “new birth of freedom,” eliminating the compromises in the Constitution over slavery.  While the 13th Amendment prohibits de jure slavery and the 15th Amendment secures voting rights, the 14th Amendment is as a guaranty against de facto slavery.

The Constitution of 1789 contained a few key limits on state action.  No state could enter into treaties, coin money, pass bills of attainder or ex post facto laws, impair contracts or confer nobility, impose tariffs, conduct foreign policy or make war.  Citizens of each state were entitled to the privileges and immunities of citizens in the several states, but states had the power to determine who was a citizen.  Every state was guaranteed a Republican form of government.

States could make laws with respect to almost any other subject matter, and enforce them as they saw fit, subject only to the state constitution.  The states had broad latitude to shape their laws, to determine issues with respect to fairness and rights, and therewith shape the habits – the virtues and vices – of their peoples.  This latitude included, by intention, the power to impose and protect slavery (and by extension other social and political perversions, short of monarchical government).  The 14th Amendment fundamentally changed this.

Section 1 of the 14th Amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The citizenship clause extinguished the ante bellum issues created by Dred Scott v. Sanford (1854) on questions of citizenship.  The privileges and immunities clause placed alien and resident persons in a state on equal footing.  The due process clause guaranteed fair procedure in an actions under state law. The equal protection clause provided for federal oversight as to the equal application of laws to persons within each state.  Additionally section 2 of the 14th Amendment eliminated the three-fifths compromise provisions regarding apportionment of representatives.

As a federal guaranty of certain rights, the 14th Amendment subjects states to federal supervision with respect to fairness and basic rights, whether or not state constitutions already provide such guarantees.  That oversight has provides the federal government – in particular the federal judiciary – with great power to shape the institutions and character of people where once the states had almost exclusive authority.

Judicial construction of the 14th Amendment has changed over time and with it the direction of federal influence over state affairs.  Cases such as Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923) upheld “freedom of contract” as a protected right until the doctrine was reversed in West Coast Hotel v. Parrish (1937).  Equal protection case Brown v. Board of Education (1954) profoundly changed – indeed rescued — the American social landscape, dismantling racial segregation. Equal protection case Hernandez v. Texas (1954) created protected classes of racial and ethnic groups.  Through 14th Amendment cases the First, Second, Fourth, portions of the Fifth, Sixth and Eighth Amendments have incorporated against the states under the doctrine of “substantive due process.”

Also through the 14th Amendment, the judiciary has incorporated rights against the states that are implied by “penumbras” and “emanations” of other express Constitutional provisions.  For example, Griswold v. Connecticut (1965) established a right to privacy which limited the right of a state to prohibit the use of contraceptives.  And there is Roe v. Wade (1973), a 14th Amendment case, famously establishing a national rule over the regulation of abortion, where previously each state had set its own rules, including prohibiting abortion in many states.  These last two cases raise an important question.  Was the 14th Amendment intended to displace the state legislatures with the nine justices of the Supreme Court to the extent it has in practice?

J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance

 

March 22, 2012 – Essay #24 – Amendment VI: Right to a Speedy Trial – Guest Essayist: Cynthia Dunbar, attorney, author, speaker and Assistant Professor of Law at Liberty University

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http://vimeo.com/38961672

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

The Sixth Amendment of the Constitution affords citizens of the United States the right to a speedy and public trial. It is important to note that this right, as every single right within the Bill of Rights, is not a right created by the civil government.  Rather, they are rights that are deemed to already exist preserved from governmental deprivation.  The belief in inherent rights possessed by mankind is the ideal behind the Magna Carta.

Chapter 40 of the Magna Carta of 1215 states  “We…will not deny or defer to any man either justice or right.” This shows that the ultimate concern was that no man be deprived of justice.  The inherent right all men possess to justice is at the heart of being afforded a speedy trial. It was thought that a miscarriage of justice could more readily occur in a system where men could be incarcerated for lengthy periods of time without the promise of a trial to present evidence of their potential innocence.  Without the promise of a speedy trial, men could ultimately be imprisoned for an undefined sentence of time prior to ever having been lawfully determined to be guilty.   The protections of the 6th Amendment have been said to be “an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383 U.S. 116, 120 (1966)

While it is clear that the right to a speedy trial avoids lengthy periods of incarceration prior to determination of guilt, it is also clear that it serves other legitimate goals to ensure justice.  First, it minimizes the threat that mere public accusation could create in its absence.  Because one is promised a speedy trial, mere accusations do not hold the same threat since those accusations would be weighed upon a technical evidentiary standard at trial. Additionally, the preservation of the evidence itself can be seen.  The delay of a trial can easily cause spoilage of evidence and diminished memories of witnesses who could be called to testify.  Inaccurate or fuzzy memories serve to increase the likelihood of a miscarriage of justice.  Ensuring a speedy trial is a necessary tool in ensuring that accurate testimony and evidence are presented at trial.

So we know we are afforded the right to a speedy trial and we know why we are afforded this right.  But now the question is, “how to determine when and if this right has been abridged?” The courts have determined that this right becomes activated once a criminal prosecution begins.  This right then is afforded to the accused once the prosecution of a crime has begun. It has also been determined that the right does not require a formal indictment or charge; it begins once restraints are imposed by arrest. United States v. Marion, 404 U.S. 307, 313, 320, 322 (1971)

This inherent or unalienable right to justice which all men possess served to give direction to our Founding Fathers.  They saw that in order to practically achieve the greatest protection of this right, citizens must be assured the right to a speedy trial.  The only hope that a falsely accused innocent man has of regaining his liberty is the preservation of accurate testimony and evidence and a prompt opportunity to confirm his innocence.  This pursuit of justice is what lies at the heart of the constitutional right to a speedy trial.

Cynthia Noland Dunbar is an attorney, author and public speaker and is frequently seen on Fox & Friends.  A former elected member of the Texas State Board of Education, she currently is an Assistant Professor of Law at Liberty University School of Law and teaches on our Constitutional and common law heritage.

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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.

March 12, 2012 – Essay #16 – Amendment IV: Warrants to Have Probable Cause – Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

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http://vimeo.com/38333110

“…..no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…”

 

 

Americans today take great pride in the accomplishments and brilliance of the drafters of the Constitution and the Bill of Rights.  One of the things that this essay will demonstrate is that quite often the protections that we take for granted came about as a result of the prudence and wisdom of the founders and in particular their specific response to the challenges they were exposed to or aware of.   Many Americans may not appreciate that this provision isn’t just pivotal, it is in some sense central to America’s claim to independence.

 

The 2nd clause of the 4th Amendment makes clear, magistrates and others allowed to issue warrants must not issue “general” warrants, but instead when court orders are issued, they must be precise and detailed.  Warrants must specify descriptions of items demanded to be seized and judges must be convinced that there is probable cause to believe a crime has been committed.

 

As is the case with much of America’s legal system, British history is a good starting point to understand this provision.

 

Let’s start with the “Star Chamber” or camera stellata as it was called in Latin.  It was sort of a super-appeals Court that held its meetings in the “Starred Chamber” of the Royal Court (a place initially created for meetings of the King’s Council in England.)  Reports of its existence suggest it operated early as the 13th Century and sat at the royal Palace of Westminster until 1641.

 

Made up of royal advisors and judges, the so called “Star Chamber’s” primary responsibility was to address civil and criminal matters involving elites to ensure that the kingdom’s laws were enforced against the powerful and the prominent.  Its sessions were held in secret.  It made no pretense of operating under traditional court rules involving criminal or civil procedure.  There was also no right of appeal, no juries and even no right to confront accusers or even for witnesses to testify.  However perhaps more offensive than these predations was its authority to issue “general warrants.”  These warrants were given to the sheriff or other local law enforcement officer and empowered them to retrieve items necessary to support the Star Chambers pre-ordained conclusions.

 

In other words, instead of saying that based on a signed statement by a witness, J. Smith was believed to hold in his home, item X, an illegal product, “general warrants” allowed the Sheriff to search all of J. Smith’s properties and seize any and all of his personal items without identifying any particular item.  The seized items would be subsequently examined by the staff of the Star Chamber to see which if any could be used as evidence against J. Smith.  The items typically weren’t returned and even when they were, they were often damaged or destroyed.

 

Over time the British recognized the inherent abuses associated with the operations of the Star Chamber. Finally, in 1640, the British Parliament adopted the Habeas Corpus Act and abolished the Star Chamber in 1641.

 

Unfortunately when making the decision to shut down the Star Chamber, the British Parliament hadn’t acted to eliminate the use of general warrants.  Abuses involving general warrants would continue over another 100 years before British society generally would recognize the ills of its use in particular.

 

One of the most prominent cases of abuse of general warrants that the founders would have been familiar with was the fall out from the British government’s attempt to use general warrants against Englishman John Wilkes, publisher and political activist and critic of the Crown, in 1763.

 

Wilkes, a member of parliament, during Prime Minister George Grenville’s government, published “The North Briton” which mocked and criticized King George III and the Grenville administration.  Using general warrants King George had Wilkes and nearly 50 of his associates arrested and charged with seditious libel.  Not only were he and his associates arrested, their personal property, papers, and effects were seized. The abuses that occurred were obvious for all to see.  As a Member of Parliament, Wilkes had immunity from these charges and while he was able to convince the Chief Justice to dismiss the case his troubles wouldn’t end.  Within the next 5 years he’d be charged again and again.  Notwithstanding these charges and subsequent expulsion from Parliament he would be re-elected 3 times.

 

Wilkes fled to France but eventually returned to England.  Wilkes would subsequently be elected Mayor of London and get recognition for his efforts to support the rights of English citizens and his efforts contributed to the fall of the Grenville government.   Wilkes’ ongoing arguments for Freedom of the Press, broader suffrage rights and religious toleration would ultimately find broad political support in England before his death.

 

But perhaps the greatest influence for the framers was the use of “general warrants” to enforce the infamous Townshend Acts of 1767.  Passed by the British Parliament, the Townshend Acts was adopted purportedly to provide for the salaries of colonial appointees, but many colonialists suspected its primary if not total rationale was to establish the precedent that the British Parliament had the right to tax the colonies.

 

As part of its efforts to enforce this revenue act, the British Parliament created the American Board of Customs Commissioners and the commission leapt at the opportunity to use “general warrants” to deter smuggling and tax evasion.  These warrants issued under the authority of the crown were particularly troublesome.  They violated the colonial charters’ rules that warrants were legal only when they provide a reason and a basis for searches.   Whereas Colonial warrants were limited in scope and time, the Commissioner’s general warrants had no time limits other than the life of the King and were transferable allowing one person holding the warrant to transfer his rights over to the other.  Additionally, the warrant holder could search any person or property at any time. Writ holders essentially were laws unto themselves.

 

Massachusetts Assembly James Otis whose catchphrase is “Taxation without Representation is Tyranny” called the general warrants “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book.”

 

The new taxes proved to be quite unpopular and colonial appointees using the general warrants even more so.  Ultimately those responsible for collections requested military assistance. The British sent the fifty-gun warship HMS Romney to Boston Harbor in May 1768 to enforce the law.   Rather than quelling the situation, this dramatic escalation made matters worse.  Starting with the Boston Massacre and the Boston Tea Party the gross abuse of general warrants and Townshend Acts would lead directly to the Declaration of Independence and the Revolution.

 

It is that framework which influenced the writers of the 4th amendment.  Although far more jurisprudence is placed on the importance of the first clause of the 4th Amendment, for historians, the notion that government may not issue warrants to law enforcement officers without any justification or any particular limits to seize goods or people was a powerful enough issue that it was a key ingredient in the formation not only of a provision of the Bill of Rights, but the formation of an entire nation.

 

Horace Cooper is a senior fellow with the Heartland Institute and is a writer and legal commentator

March 9, 2012 – Essay #15 – Amendment IV: Protection Against Unreasonable Searches – Guest Essayist: Dr. Charles K. Rowley, General Director of The Locke Institute and Duncan Black Professor Emeritus of Economics at George Mason University

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March 9, 2012 – 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 particularly describing the place to be searched and the persons or things to be seized. – Guest Essayist: Dr. Charles K. Rowley, General Director of The Locke Institute and Duncan Black Professor Emeritus of Economics at George Mason University

Although my assignment is to discuss the first clause of the Fourth Amendment, I cannot do so effectively without referring also to the second clause. Therefore, my Essay embraces both clauses, while focusing primary attention on the first.

Like many other areas of American law, the Fourth Amendment is rooted in English legal doctrine. Sir Edward Coke, in Semayne’s case (1604) stated: ‘The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.’  In this judgment, the Court determined that the King was not endowed with unlimited authority to intrude upon his subjects’ dwellings, while recognizing that the King’s agents were permitted to conduct searches and seizures under specified conditions, when their purpose was lawful, and when a warrant had been secured.

The 1760s witnessed a significant growth in the rate of litigation against government agents using general warrants to locate and seize materials relating to John Wilkes. Wilkes’ publications attacked vehemently not only government policies, but the King himself. The most famous of these cases was Entick v. Carrington (1765) in which Charles Pratt, 1st Earl Camden, ruled that the forcible entry by the King’s Messenger into the home of John Entick, and the search for and seizure of pamphlets and other materials under a general warrant was unlawful.  This case established the English precedent that the executive is limited by common law in intruding upon private property.

Unlike other provisions in the ‘Bill of Rights’, however, the Fourth Amendment was grounded mainly in American colonial experience, rather than in English history.  In order to stem rampant smuggling by tariff-evading colonialists, the British parliament had conferred vast powers of search on British customs officials.  The Writ of Assistance was a general search warrant granting such officials virtually unlimited discretion to search, and was valid throughout the lifetime of a sovereign. Casting its net widely, such a writ required neither ‘probable cause’, nor any description of persons or premises, nor even a magistrate’s authorization of a particular search. The arbitrary nature and capricious application of this writ enraged many colonialists and drove post-revolutionary arguments in favor of the Fourth Amendment (Jacob Landynski, ‘Fourth Amendment’, The Oxford Companion To The Supreme Court Of The United States. Edited by Kermit L. Hall, Oxford University Press, 1992).

Despite its apparent comprehensiveness, the Fourth Amendment actually provides very little guidance concerning how to deal with potential search situations.  Its historical justification teaches us a preference, wherever feasible, for a search under warrant over a judicially unsupervised police action.  Its text requires a standard of ‘probable cause’, and a description of the persons and premises involved.  However, the text does not define ‘probable cause’, nor does it even define a ‘search’.  In such circumstances, the United States Supreme Court has played a significant role, both in construing the text, and in determining how closely to hew to the history of the amendment.

Early on, the Court construed the text strictly and interpreted history narrowly.  In a changing environment, such construction allowed many avenues for government agents to evade the reach of the Amendment.  For example, for some time, the Court determined that electronic eavesdropping did not fall within the reach of the Amendment.  Similarly, administrative inspections were exempt because they were viewed as invading ‘only’ the privacy interest of the individual rather than his security interest.  Only after the Court moved away from strict construction, was it willing to hold that these new forms of search fell within the scope of the Amendment.

The great dilemma of interpretation concerns the relationship between the Amendment’s two clauses.  The first clause bans unreasonable searches while the second clause defines the conditions for issuance of a warrant.  Three possible interpretations emerge, each of which has been sanctioned by the Court at one time or another.

The most obvious interpretation is to consider the warrant clause as explanatory of the reasonableness clause.  This interpretation has been followed in most of the Court’s cases.  In the judgment of Justice Potter, ‘searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions.’ (Katz v. United States, 1967)

A second interpretation reinforces the first, by inferring that some searches are sufficiently offensive to civilized standards of behavior as to be unreasonable even under warrant.  In this interpretation, the Court in 1886 proscribed the search and seizure of private papers even though such search was authorized by judicial process.  In 1921, the Court limited a search to contraband and the fruits of crime, banning the seizure of mere evidence.  These restrictions, however, no longer apply.

The third interpretation treats the two clauses as separable, as was implied in the nature of my commission for this Essay.  The reasonableness of a search, in this interpretation, is not dependent on the existence of a warrant, but on what Justice Minton called, ‘the facts and circumstances – the total atmosphere of the case’ (United States v. Rabinowitz, 1950).  Between 1950 and 1969, this interpretation ruled and the Court sanctioned extensive warrantless searches of premises where arrests were made.

Either of the first two interpretations is faithful to the purpose of the Amendment.  The third interpretation, however, is not.  Once a standard of reasonableness is segmented from the warrant requirement, it provides no standard whatsoever.  A determination of probable cause, even in non-exigency situations is then simply made by the police, and citizen protection is completely denied.  Unfortunately, at the present time, the Court is leaning once again in favor of the third interpretation – under a Hobbesian pressure from a terrorist-infested environment – even while it continues to pay lip-service to the first.

The Amendment covers arrest as well as search, albeit with an important difference between the two.  An outdoor felon arrest is always viewed as an exigency, not requiring a warrant.  An entry into a person’s house, in order to make an arrest, requires a warrant, unless an exigency can be demonstrated.

Perhaps the most controversial feature of the Court’s Fourth Amendment jurisprudence is the rule requiring exclusion of evidence seized in violation of constitutional standards.  Suppressing evidence merely because of the wrongful manner in which it was acquired is unique to American law.  This exclusionary rule first appeared in Boyd v. United States (1886). It was made explicit for the federal courts in Weeks v. United States (1914).  It was extended to state prosecutions in Mapp v. Ohio (1961).  The exclusionary rule was rigorously enforced until 1984, when the Court retreated somewhat in United States v. Leon.  The justices ruled that ‘good faith’ reliance by police on a defective warrant does not require exclusion.

This back-track coincides with a more general retreat by the Court into the feel-good fuzziness of a living constitution.  Eventually, such a retreat may leave the Court sanctioning warrantless searches under non-exigent circumstances.  At such time, an unconstitutional Supreme Court, to all intents and purposes, will have arbitrarily repealed the Fourth Amendment to the Constitution of the United States.

Charles K. Rowley, Ph.D. is President and General Director of The Locke Institute in Fairfax, Virginia and Duncan Black Professor Emeritus of Economics at George Mason University.  For further details see www.thelockeinstitute.org and www.charlesrowley.com

 

March 8, 2012 – Essay #14 – Amendment III: Situation in Time of War – Guest Essayist: Andrew Dykstal, a Junior at Hillsdale College

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Amendment III

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

 

The Third Amendment seldom enjoys press or study; one high school-level text dismisses it with a single sentence to the effect of “This amendment has been unimportant since its adoption.” Nevertheless, the Third Amendment offers valuable insight into the Constitution’s intended restraints on standing armies and the relationship between civil and military authorities. The Third Amendment directly protects the property and freedom of individual citizens, but it also imposes an additional limit on the power of the executive to maintain military power without the consent of the legislature.

 

The surface-level meaning of the Third Amendment is quite straightforward: In peacetime, the federal government cannot use any residence to house soldiers without the consent of the owner. Only in wartime–a condition that only Congress can declare–can soldiers be housed in private residences. Even in this case, Congress must provide for this mediation of property rights by an act of law distinct from a declaration of war. In the only significant court case (Engblom v. Carey, 1982) involving the Third Amendment, the Second Circuit Court of Appeals held that the concept of “soldier” can be broadly construed to include National Guardsmen. More significantly, the court held that “house” includes dwellings not owned by the inhabitant, such as apartments and rented rooms. The Third Amendment therefore constitutes a broad protection of the citizenry against legislative power in peacetime and the executive at any time.

 

In contemporary times, this protection may seem unnecessary or redundant with, say, the Fourth Amendment. But when the Bill of Rights was drafted, memories of royal abuse were still fresh in American minds, and the question of abusive military was a subject of intense debate between the Federalists–the people who supported the ratification of the Constitution–and the Antifederalists–the people who opposed it. The Third Amendment addresses on of the Antifederalists’ historically-grounded concerns. The Declaration of Independence reads, in part, “He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. He has affected to render the Military independent of and superior to the Civil power….For Quartering large bodies of armed troops among us…” This indictment of King George III bridges two separate but equally significant issues. First was the traditional, specific aversion to the quartering of troops in private homes. Parliament passed a series of Quartering Acts beginning in 1765, directly contravening the 1689 English Bill of Rights. These acts called into question the Americans’ rights as Englishmen and subjected them to treatment unconscionable for citizens of the Empire. More pragmatically, the conduct of British troops, stationed far from home in what was often considered a colonial backwater, was often reprehensible, and crimes against colonists increased in frequency and severity as political tension grew. The colonists experienced a direct, vivid reminder of why the quartering of soldiers in homes had been explicitly forbidden under British law for decades.

 

The second issue at the heart of this indictment of King George III (and at the heart of the Third Amendment) is substantially more interesting from a contemporary perspective. The very existence of a standing army in the colonies was generally taken as offensive, and this sentiment influenced the development of the Constitution. The Third Amendment renders significantly more difficult the maintenance of “in times of peace, Standing Armies without the Consent of our Legislatures.” Specifically, the Third Amendment checks executive and military power by increasing the cost of maintaining a standing army. In Federalist 26, Alexander Hamilton describes the way in which regular funding renewal forces the legislature to continuously revisit the question of a standing army. Under Article One, Section 8, the executive is reliant on legislative approval to fund the military, and the Third Amendment helps to prevent an end run around these measures; the federal government must make appropriations via Congress to support the military. The military cannot support itself directly from the people unwilling hospitality. With the memory of the threat a standing army can pose to liberty in mind, the Constitution’s framers put in place both primary and incidental restrictions on the nature of executive and military power.

 

The specific protection afforded by the Third Amendment has not, thankfully, seen as much use as those afforded elsewhere in the Bill of Rights, but the ideas and intent behind this amendment can still educate us about our nation’s history and inform our current policies. The Third Amendment speaks to the grave responsibility in the hands of the legislature as long as the United States maintains a powerful military in war and peacetime alike, and it speaks to the care necessary in the exercise even of necessary power.

March 7, 2012 – Essay #13 – Amendment III: Freedom From Quartering Soldiers in Peacetime – Guest Essayist: William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

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Amendment III

“No soldier shall, in time of peace, be quartered in any house, without consent of the Owner, nor in time of war, but in a manner prescribed by law.”

Supreme Court Justice Joseph Story, author of perhaps the best commentary on the Constitution, wasted little time with the Third Amendment: “This provision speaks for itself.”  So it does, but a few words of background can explain why the United States Congress and the people they represented thought it worth adding.

During the French and Indian War the British found themselves harried by what we would now call guerrilla strikes.  They had some regular army bases—some of the best of them along the border with Quebec. But given the character of the war they were fighting they needed to move forces quickly into undefended areas to counter French and Indian raiders.  And so they would occupy an unsecured and threatened area—protecting the lives and property of the local citizens in exchange for the commandeered use of the locals’ property for that purpose.

After the war, this practice (as our saying now goes) got old in a hurry.  By 1765, Benjamin Franklin complained that “there are no want of barracks in Quebec, or any part of American; but if an increase of them is necessary, at whose expense should that be?”  Surely not that of private citizens. To Franklin’s complaint about property rights, Samuel Adams added a political one: “where military power is introduced, military maxims are propagated and adopted, which are inconsistent with and must soon eradicate every idea of civil government.”  By occupying the property of private landowners, the British Army acted as if a law unto itself.

Colonists’ outrage heightened in Adams’s own Boston, where the early stirrings of armed resistance to British occupation provoked the Parliament to pass the Intolerable Acts (as the colonists called them), making any public gathering an act of treason and formally providing for quartering troops in private homes.  Upon founding the Union in 1774, Americans saw their representatives in the Continental Congress pass a law in favor of “the better providing suitable quarters for officers and soldiers in his majesty’s service, in North America.”  Once resolved upon independence, the colonists listed the British practice among the grievances proving the tyrannical character of George III’s rule.

The lack of such a provision numbered among the several complaints lodged against the 1787 Constitution by the Anti-Federalists during the ratification fight.  After the Constitution passed—barely, in several states—James Madison and the first United States Congress took up the matter of amendments.  One of the strongest advocates of what would become the Third Amendment was Thomas Sumter of South Carolina; the Carolina Gamecock had won his nickname by inducing Lord Cornwallis to get out of the deep south, moving on toward his unlucky fate at the hands of Washington and the French Navy at Yorktown, Virginia.  Beyond property rights and politics, Sumter went to the intimate heart of the matter: property occupied by soldiers “would lie at the mercy of men irritated by a refusal”—men expecting obedience to the orders they issue—“and well disposed to destroy the peace of the family.”  With that gentlemanly description of ungentlemanly conduct ringing in their ears, the Congressmen gladly passed the amendment.

Notice the important caveat.  Times of extreme emergency may require the risk and burden of quartering troops in private homes.  Accordingly, Congress provided that the practice might be renewed by legislative act.  The lives, liberties, and property of American citizens, even the sanctity of the family, might under certain conditions be more at risk from an enemy force than from the forces charged to defend them.  Then and only then would a Congress or a state legislature dare to enact such a measure.

Although one shouldn’t read much into the order of the first ten amendments (famously, the First Amendment is first only by accident), the placement of the Third Amendment does make good sense.  It follows the Second Amendment stipulation of the right to bear arms; an American household usually can defend itself if family members are rightly armed and trained.  It precedes the Fourth Amendments stipulation of security against unreasonable searches and seizures.  The right to be free of military occupation in one’s own home from one’s own citizen-army sits well between the rights of self-defense and of the orderly rule of law.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.

May 31, 2011 – Amendment IX of the United States Constitution – Guest Essayist: Steven H. Aden, Senior Counsel, Alliance Defense Fund

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Amendment IX

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Despite 220 years of constitutional interpretation, there really isn’t much one can say about the Ninth Amendment.  And that’s just what James Madison and the Framers intended.

The Ninth Amendment is that rare creature in American politics, a success story conceived in humility.  The first eight amendments of the Bill of Rights established freedom of worship, the freedoms of assembly, speech, press and petition, the rights to bear arms, to be free from government intrusions into citizens’ homes, to due process and to a jury of one’s peers, and many others.  Having penned what may have been the finest articulation of the rights of man in human history, Madison and his colleagues could have been forgiven for giving way to hubris and capping it with a rhetorical flourish.  Instead, they added a caution, by way of an afterthought.  The Ninth Amendment’s quiet caveat has done much more to protect fundamental rights from government encroachment than its humble phrasing would suggest.

The Bill of Rights exists because a compromise was required to satisfy the Anti-Federalists and States that were cautious about ratifying into existence a federal government of broad powers.  The Ninth Amendment exists because another compromise was necessary to satisfy those in the Federalist camp who believed that an enumeration of rights would tend to negate recognition of rights left unmentioned.  Madison, Alexander Hamilton and other Federalists contended that a Bill of Rights was unnecessary because the federal government’s powers were delineated by and limited to those set forth in Article I, Section 8 [link to John Baker’s blog on this provision  – http://constitutingamerica.org/category/analyzing-the-constitution-in-90-days-2011-project/article-i-section-08-clause-01/ ] Hamilton’s Federalist 84 queried, “Why declare that things shall not be done which there is no power to do?”  But the Anti-Federalists, led by Thomas Jefferson, prevailed, and history has affirmed their wisdom as through expansive interpretations of the Necessary and Proper Clause and the Commerce Clause the mantle of federal power has come to envelope virtually every aspect of life from the light bulbs in our ceilings to the “individual mandate” to purchase health insurance.  The enumeration of rights stands as a bulwark against that tide of federal authority in the sphere of private life, speech and conduct.  On the other hand, the Ninth Amendment lifts its staying hand against the argument that these rights, and only these, stand between the citizen and his seemingly omnipotent (and, with digital technology, increasingly omnipresent) government.

That the rights enumerated in the first eight amendments are not all the rights we possess may strike one at first as a challenging notion.  For rights that went unenumerated at the time, but became “self-evident” (in the words of the Declaration) much later, consider the right to be free, expressed in the Thirteenth Amendment prohibiting slavery (1865); the right to vote (Amendment XIV in 1870); and the right to vote for women, which came a half-century later (Amendment XIX in 1920).  Except for the salutary effect of the Ninth Amendment, it might have been presumed that no other fundamental human rights existed outside of those enumerated in 1789 – that the “canon of human rights” was closed, not subject to further elaboration through constitutional amendment.  Or perhaps what is worse, it might have been supposed that all “rights” secured by the people through amendment of the Constitution subsequent to the Founding were not “fundamental” human rights, but only positive political rights secured through an effective application of the Social Contract.  For unenumerated fundamental rights that have yet to be affirmed in the written constitution, consider the right of conscience; the right of parents to raise and educate their children outside of the government school system (unrecognized in parts of Europe and elsewhere), or the right to be free from genetic manipulation.

Mark Twain quipped, “Some compromise is essential between parties which are not omniscient.” Our generations, and generations to come, will have to struggle with the meaning of rights enumerated and unenumerated, and with the wisdom of further constitutional amendments.  Thankfully, because the two great forces in the making of the Constitution were willing to admit their fallibility and broker resolutions, we have the wisdom of the Bill of Rights, and the wisdom of the “Bill of Other Rights” – the Ninth Amendment.

Steven H. Aden is the Senior Counsel for the Alliance Defense Fund, http://www.alliancedefensefund.org/ .

May 30, 2011 – Amendment VIII of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The text of the Eighth Amendment, concise and plain, masks the fluidity that the Supreme Court has assigned to its words. The more intensely scrutinized portion, by far, is the prohibition against cruel and unusual punishments. There are two applications that have been particularly significant in recent years, the constitutionality of the death penalty and the application of the amendment to “enhanced interrogations.”

It would be fatuous for opponents of the death penalty to claim that the Framers understood the death penalty to be unconstitutional. The Constitution’s text belies such an assertion, because the Fifth Amendment three times makes it plain that the death penalty is a proper punishment for crime: “No person shall be held to answer for a capital…crime, unless on…indictment of a Grand Jury…; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…, nor be deprived of life, liberty, or property, without due process of law.” Moreover, the common law at various times recognized capital punishment for a couple of hundred criminal offense.  Given the additional availability of whipping, branding, ear cropping, and other such forms of corporal chastisement, the Framers’ understanding of “cruel and unusual punishment” was restricted to those torturous punishments that stood out for their infliction of extended periods of particularly gruesome pain for no end other than the infliction of that pain, and that were applied with such extreme rarity as to undercut any realistic claim that they served a moral purpose such as retributive justice or moral reformation. An example would be the rarely-used, but then still available, punishment of drawing and quartering applied in exceptional treason cases in Britain.

To further the cause of modern death penalty abolitionists, the Court was obliged to impress upon the Eighth Amendment an interpretive mechanism that could supersede the specific textual recognition of the death penalty’s legitimacy. That mechanism is the judicial matrix of “evolving standards of societal decency” that would “guide” the Court’s interpretation of the Eighth Amendment.  Using “cruel” in a qualitative sense and “unusual” in a quantitative sense, this approach allows for a judicial finding that punishments that fall into comparative disuse, either by change in legislation or even through failure of prosecutors to seek the death penalty or of juries to impose it on a regular basis for certain crimes, become violations of the Eighth Amendment. Particularly galling to the opponents of this approach, such as Justice Scalia, is that the procedural hurdles created for the imposition of the penalty in past cases themselves are much to blame for the (comparatively) infrequent use of the death penalty.

Although the Court has not finally found the death penalty to violate the Eighth Amendment, the end is clear. Death penalty jurisprudence has been one instance of ad hoc judicial law-making after another.  Capital punishment, the Court once opined, is applied too haphazardly.  When states responded with mandatory death penalty laws and other restrictions on jury discretion, the Court found those wanting in that juries must be able to exercise discretion to impose the death penalty or not.  However, further decisions then determined that the jury discretion must be subject to specific guidance. Moreover, the judge must have the power to override a jury’s imposition of the death sentence, but not the other way around.  Juries must be able to hear any and all mitigating personal evidence for the defendant, dredging up every aspect of the defendant’s life that would place some blame for the crime, somehow, on some person other than the defendant.  On the other hand, aggravating evidence, such as about the victim whose life was snuffed out, had to be very carefully limited.

As to the “evolving standards of decency” test, the Court once declared that the Eighth Amendment must not cut off the normal democratic process. Yet, more recently, the Court, led by Justice Kennedy, has taken great pains to do just that, overturning laws that provided the death penalty for older juveniles who commit particularly heinous murders and for non-homicide crimes. Kennedy, in particular, while dutifully declaring the contrary, seems intent on imposing through the Constitution his own vision of the moral and “decent” society. The Court earlier pronounced that the “Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered beliefs and responding to changed social conditions.” Once more assuming the role of philosopher-king, Kennedy in the last capital punishment case, Kennedy v. Louisiana (2008), rejected the idea that the death penalty could be expanded (though, in fact, the law at issue there, capital punishment for aggravated child rape, did not “expand” the death penalty).  After all, that would not fit Kennedy’s Hegelian march of “evolving standards of decency…on the way to full progress and mature judgment.” So, there is only one direction of evolution, regardless of what the people might enact, one that leads, Kennedy all but assured the abolitionists, to the eventual demise of the death penalty.

In Roper v. Illinois (2005), the juvenile death penalty case, Justice Kennedy resorted to comparing the United States unfavorably with European systems, as well as with other, even less savory, exemplars of justice, and, as he has done in some other areas of constitutional law, invoked the decisions of his fellow Platonic guardians on tribunals overseas.  Due to the rebukes launched by Justice Scalia in his dissents, the Court is less inclined these days to feature that line of internationalist argumentation as a basis for guidance of the American Constitution in a direction Justice Kennedy finds to be more civilized.

International standards have also been used in attempts to limit the use of techniques to interrogate suspected terrorists. Leaving aside specific anti-torture statutes or treaty obligations, note that the Eighth Amendment itself only prohibits cruel and unusual “punishment.” Not only is this limited to torture and other extreme actions; the Court in past cases repeatedly has held that it applies only to punishment, not to other actions by the government. Hence the challenged behavior must be directed at “punishing” the individual. This distinction between punishment and other objectives in the use of force against prisoners is one long established in many Western systems of law, and one that the Framers clearly understood.

If a prisoner brings a claim that excessive force was used in violation of the Eighth Amendment, he must show that this was for the purpose of punishment. If the force or condition of confinement was for another purpose, the Eighth Amendment is not implicated.  Thus, the state of mind of the persons conducting the interrogation becomes important. Did they do so for purpose of discipline, security, or information gathering, or did they do so simply to punish? That state of mind can be demonstrated circumstantially by a number of factors, such as the asserted purpose of the treatment and the degree of force used in relation to the many varied circumstances that triggered the interrogation, an evaluation that implicates the proportionality principle that lurks in Eighth Amendment jurisprudence. Only if the actions go beyond the asserted disciplinary or investigatory needs, might the treatment amount to cruel and unusual punishment. As the Court has said in several cases, the prisoner must show that the government agent acted “maliciously and sadistically for the very purpose of causing harm.”

The prisoner might assert claims that the government violated Fourth Amendment standards against unreasonable searches and seizures, or, more likely, nebulous Fifth Amendment due process standards against treatment that “shocks the conscience.” Even if a foreign terror suspect kept overseas is entitled to those constitutional protections as a matter of right (an issue not resolved even by the Court’s Boumediene decision that, for the first time, granted such detainees access to the writ of habeas corpus), they might not help him.  The “shocks-the-conscience” test is particularly difficult to confine, and the Court employs a utilitarian approach. The Justices have made it clear that it is not just the severity of the method, but the degree of necessity for the challenged action, that will determine whether the consciences of at least five of them are shocked.  In any event, whether or not the justices are suitably shocked under the Fifth Amendment, the Eighth Amendment does not apply to careful methods used demonstrably for the purpose of extracting information.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

May 26, 2011 – Amendment VI of the United States Constitution – Guest Essayist: Marc. S. Lampkin, a Vice President at Quinn Gillespie

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Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Perhaps more than any other Amendment, the 6th Amendment protects the liberties of the American people most directly.  It is so effective in carrying out this goal that most Americans give its protections little thought or consideration.

By setting up the framework which limits the ability of the government to arbitrarily accuse and incarcerate the citizens at large the 6th Amendment minimizes the likelihood that criminal charges will be filed against political enemies of the state. In America no one can be arrested, tried, sentenced and imprison without it occurring under a set of rules in public, with a written record that can be accessed by the public and members of the media.  Prior to the adoption of the 6th Amendment, these protections didn’t exist for large parts of Europe and Asia.

There are seven elements of the 6th Amendment:

 

Speedy Trial:  As recognized by the Supreme Court this provision has three obvious benefits to the accused

  1. To prevent a lengthy period of incarceration before a trial. In other words the accused won’t be giving unlimited detention without having been tried and convicted.
  2. To minimize the effects of a public accusation. Undue suffering from a false accusation shouldn’t occur for more than an absolute minimum amount of time.
  3. To ensure that too much time didn’t lapse making it harder for the accused to defend himself either as a result of death or sickness of witnesses or due to loss of memories by needed witnesses.

 

Public Trial: Under its terms the trial must be open to the public and accessible by the media.  Interestingly, this right predates English common law and possibly even the Roman legal system and has been thought to be essential to ensure that the government can’t use the court system as an instrument of persecution because the knowledge that every criminal trial is open and accessible to the public operates as an effective restraint.

Impartial Jury: Unlike a trial in which a judge or panel of judges make a decision, a jury trial is a legal proceeding in which the jurors make the decision.  Interestingly the size of the jury is universally assumed to be 12 but in state criminal trials it can be as few as 6 individuals and in Ancient Greece a criminal trial might include over 500 persons in the jury.  No matter the actual size, it is essential that the individuals who make up this jury be free of bias and prejudice.  They should be representative of the population at large from which the accused comes from but should not be his immediate family or close friends.

Notice of Accusation: It is not sufficient that the state merely take the time to accuse an individual.  The government must also inform the accused of the specific nature and cause of the accusation and do so in a way which makes it reasonably possible for the accused to mount a defense against the charge.  Additionally all of the charges must be outlined and must include all ingredients necessary to constitute a crime.

In other words, the government can’t secretly charge you with speeding or tax fraud and yet not let you know specifically how or when you committed the crimes.  They must be specific and precise in order to make it possible for you to explain, justify or otherwise defend yourself against the charges.

Confrontation: The right to directly question or cross-examine witnesses who have accused a defendant in front of the jury is a fundamental right which like the impartial jury and public trial requirement pre-dates the English legal system.  A variation of this right is referenced in the Book of Acts which describes the Roman governor Porcius Festus, discussing the proper treatment of his prisoner the Apostle Paul: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.”

Compulsory Process: Like the confrontation clause, the right of “Compulsory Process” protects Americans from unfair criminal accusations by allowing them to be able to obtain witnesses who can testify in open court on their behalf. Even if a witness does not wish to testify, compulsory process means that the state can subpoena him and force the witness to testify or be in contempt of court.  If a person did not have compulsory process, witnesses who know of your innocence but who simply didn’t wish to be involved could lead to a guilt conviction of an innocent person.  Embarrassment or fear are not legitimate excuses to avoid compulsory process because this right is designed to ensure the accused has the opportunity to present his strongest defense before the jury.

Counsel:  Perhaps the most meaningful of all of the 6th Amendment rights, is the right to select the attorney or counsel of your choice to represent you in a criminal case.  While much attention has been focused on the issue of when and whether every accused person must be provided with a minimally competent attorney, the framers felt that the greatest threat was not being able to hire the advocate of your choice.  As early as the year 1300 there was an advance trade made up of individuals who represented or advocated on behalf of accused individuals or individuals who needed to make special pleadings before the government.  At the time of the founding of the United States most of the colonies had adopted a policy of allowing accused individuals in all but the rarest cases the right to hire the counsel of their choice to aid in their defense.  In other words the framers emphasized the importance of the accused having the option either through his own resources or through that of his friends and family to hire the best and most talented advocate and to prevent this would be considered an injustice.  Even though modern litigation over this provision focuses more on the need to insure that every one is provided an attorney “even if they can not afford one” the greatest benefit of this provision is that every individual may choose to expend any or all of their resources to find the most capable lawyer they desire.

The 6th Amendment embodies much of the Founder’s concerns about the potential abuse of the individual by the government.  The founders were quite familiar with the list of abuses by the English monarch.  It is interesting to note that of the 26 rights mentioned in the first through the eighth amendments, 15 of them have something to do with criminal procedure and notably 7 of those 15 are found in this amendment.

Marc S. Lampkin is a Vice President at Quinn Gillespie

May 24, 2011 – Amendment IV of the United States Constitution – Guest Essayist: Jeffrey Reed, a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law, and has taught constitutional law at Western Kentucky University in Bowling Green, Kentucky

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

The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. It also requires warrants issued by courts to be supported by probable cause.

Debates surrounding Fourth Amendment law involve balancing an individual’s right to privacy against law enforcement’s need to aggressively investigate crime. As crime rates soar, the legal trend has been to give police more leeway under the amendment.  However, it has not been without debate. One only need point to the controversy surrounding the Patriot Act, where police were granted expanded powers to wiretap phone conversations, intercept emails, etc., without a warrant. No doubt, the Fourth Amendment has created a growing body of law, affecting all Americans.

The text says:

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.

The framers of the Constitution adopted the amendment in response to the writs of assistance (a type of blanket search warrant) that were used during the American Revolution.

Before one can answer whether a search is reasonable, it must be established that there was, indeed, a search under the meaning of the Fourth Amendment. In Katz v. United States, the Supreme Court ruled that there is a search if a party has a “reasonable expectation of privacy” in the area searched.

In Katz, the government wiretapped a telephone booth. The court found that it was an unreasonable search because the defendant expected his phone             conversation to be private. The court used a “reasonable man” standard. Would society believe that Katz’s expectation of privacy was reasonable? The court held that the government should have obtained permission from a court, via a search warrant, before wiretapping the phone booth.

In order to obtain a warrant, an investigating officer must state, under oath, that he has reason to believe that the search will uncover criminal activity or evidence of a crime. A judge must find that probable cause exists to support the warrant. The Supreme Court has ruled that the term probable cause means that there is a “practical, nontechnical” probability that incriminating evidence is involved.”

The standards of probable cause differ for an arrest and a search. A “seizure” under the Fourth Amendment occurs when a person is arrested and taken into custody. The officer must have probable cause to seize the person. Police have probable cause to make an arrest when the facts they possess, based on “reasonably trustworthy information” would lead a reasonable person to believe that the person arrested had committed a crime.

Not every incident involves an “arrest” requiring probable cause. Under Terry v. Ohio, police may conduct a limited warrantless search (frisk them) on a level of suspicion less than probable cause when they observe “unusual conduct” that leads them to reasonably believe “that criminal activity may be afoot” and that the suspect is presently dangerous to the officer or others.

The Fourth Amendment also prohibits the unreasonable seizure of personal property without a warrant. A seizure of property occurs when there is meaningful interference by the government with an individual’s possessory interests.

Courts enforce the Fourth Amendment via the exclusionary rule. Any evidence obtained in violation of the amendment cannot be used to prosecute the defendant at trial. The defense attorney must move the court to suppress the evidence.

Like any rule, there are exceptions. No warrant is needed if a person agrees to the search. Likewise, if an officer is legally in a place and sees objects in “plain view” that he has probable cause to believe are evidence of a crime, he may seize them without a warrant. “Open fields” such as wooded areas or pastures may be searched without a warrant (there’s no reasonable expectation of privacy in them). And so on and so forth.

The most recent exception was handed down by the Supreme Court on May 16th.  In a case originating in my state of Kentucky, the Court created a new exception to the warrant requirement. Now, police may enter a home without a warrant when they have reason to believe that drug evidence is being destroyed. The Kentucky police acted properly when they smelled marijuana at an apartment door, knocked loudly, announced themselves, and kicked in the door.

Jeffrey Reed, a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law. Before beginning his music career, he practiced law and  taught constitutional law at Western Kentucky University in Bowling Green, Kentucky, where he resides.

May 23, 2011 – Amendment III of the United States Constitution – Guest Essayist: Robert Chapman-Smith, Instructional Design Associate at the Bill of Rights Institute

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Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

In the realm of constitutional law, obscurity knows no better companion than the Third Amendment of the U.S. Constitution. No direct explication of the Amendment appears in the reams of opinions the Supreme Court has issued since 1789. In fact, save for Engblom v. Carey (1982), no explication offered by the whole of America’s judicial branch directly engages the tenets of the Amendment. And yet, the significance of the Third Amendment lives on as a jewel that has an inherent value which cannot be augmented or diminished by present-day utility.[1]

The common law lineage of the Third Amendment stretches deep into history. Early Anglo-Saxon legal systems held the rights of homeowners in high regard—viewing firth (or peace) to be not a general thing encompassing the entire community, but rather a specific thing comprised of “thousands of islands . . .  which surround the roof tree of every householder . . . .”[2] But Saxon-era legal institutions never had to contend with quartering issues. This is due primarily to the absence of standing armies and the reliance on fyrd—a militia to which all abled bodied men owed service for a period normally not to exceed forty days in a given year. Not until the Norman Conquests of 1066 did popular grievances against quartering (also known as billeting) begin to manifest.[3]

Attempts to codify provisions against quartering predate the Magna Carta—most notably appearing in 12th century charters like Henry I’s London Charter of 1131 and Henry II’s London Charter of 1155.[4] But early attempts to prevent involuntary quartering by law proved inadequate, especially as armed conflicts transitioned from feudal Saxon-era fyrds to monarchs hiring professional soldiers. Men of questionable character comprised the bulk of these mercenary armies. Kings pressed criminals into service in exchange for having crimes and misconduct forgiven. Though they fought well, these men would draw little distinction between friend and foe and would continually mistreat civilians.[5]

As time drew on, other efforts to quell quartering fell well short of success.[6] The problem compounded exponentially under Charles I, who engaged in expensive and wasteful wars that spanned across Europe. Charles I conducted these wars without receiving approval from Parliament. Parliament balked at the idea of financing Charles’ wars—forcing the soldiers in Charles’ army to seek refuge in private homes.[7] By 1627, the problem became severe enough that Parliament lodged a formal complaint against quartering in its “Petition of Right.”

But the “Petition of Right” did nothing to change quartering practices. During the English Civil War, both Royalists and Roundhead armies frequently abused citizens through quartering—despite the official proclamations that damned the practice. During the Third Anglo-Dutch war, conflicts between soldiers and citizens erupted over forced quartering.[8] In 1679, Parliament attempt to squelch concerns by passing the Anti-Quartering Act, which stated, “noe officer military or civil nor any other person whatever shall from henceforth presume to place quarter or billet any souldier or souldiers upon any subject or inhabitant of this realme . . . without his consent . . . .”[9] James II ignored the Act and the continued grievance over billeting helped propel England’s Glorious Revolution. Upon William II’s ascension to the throne, Parliament formulated a Declaration of Rights that accused James II of “quartering troops contrary to law.” Parliament also passed the Mutiny Act, which forbade soldiers from quartering in private homes without the consent of the owner. Parliament extended none of these limited protections to the colonies.[10]

In America, complaints against quartering began surfacing in the late 17th century. The 1683 Charter of Libertyes and Privileges passed by the New York Assembly demanded that “noe freeman shall be compelled to receive any marriners or souldiers into his house . . . provided always it be not in time of actuall warr in the province.”[11] The quartering problem in the colonies grew exponentially during the mid-18th century. The onset of the French-Indian War brought thousands of British soldiers onto American shores. Throughout much of Europe, the quartering issue had dwindled due to the construction of permanent barracks. Colonial legislatures recoiled at the thought of British soldiers having such accommodations and repeatedly denied British requests for lodging.

The close of the French-Indian War brought about even more challenges. In an attempt to push the cost of defending the colonial frontier onto the colonists, Parliament passed the Quartering Act of 1765. The Act stipulated that the colonies bear all the costs of housing troops. It also legalized troop use of private buildings if barracks and inns proved to be insufficient quarters. In an attempt to secure the necessary funding for maintaining the army, Parliament passed the Stamp Act—“as a result, the problems related to the quartering of soldiers became entwined with the volatile political issue of taxation without representation.”[12]

Quartering issues continued to surface, worsening gradually with each occurrence. In 1774, Paliament passed a second Quartering Act that was more arduous than the first. Due to its specific legalization of quartering in private homes, the second Quartering Act would become one of the “Intolerable Acts” lodged against the King and Parliament. Grievances against British quartering practices appeared in a series of declarations issued by the Continental Congress: the Declaration of Resolves, the Declaration of Causes and Necessities, and the Declaration of Independence.[13]

After successfully gaining independence from Britain, many states enacted new constitutions or bills of rights that offered protection against involuntary quartering. As had been the case in England, the quartering issue was entwined with the maintenance of a standing army. The 1787 Constitutional Convention, and the Constitution that arose from it, gave Congress the power to raise and support armies. The Constitution focused little attention on individual rights. That omission troubled many delegates both at the Convention in Philadelphia and at the ratification debates throughout the states.

Chief among the concerns pertaining to the military provisions of the Constitution was a fear that the new American government might be as oppressive as the British one it aimed to replace. As Patrick Henry noted:

“one of our first complaints, under the former government, was the quartering of troops upon us. This was one of the principal reasons for dissolving the connection with Great Britain. Here we may have troops in time of peace. They may be billeted in any manner—to tyrannize, oppress, and crush us.”[14]

The Anti-Federalists routinely stressed the Constitution’s lack of protection against standing armies and involuntary quartering. Many states echoed the concerns of the Anti-Federalists. Of the ninety types of provisions submitted to Congress, only seven appeared more frequently than provisions addressing quartering.

But James Madison and the Federalists viewed such provisions as unnecessary. Any Constitution that provides a democratic process for the maintenance of a standing army will, by consequence, solve any quartering issues that may arise. As Madison noted during the Virginia ratification debates:

“He says that one ground of complaint, at the beginning of the revolution, was, that a standing army was quartered upon us. This is not the whole complaint. We complained because it was done without the local authority of this country—without the consent of the people of America.”[15]

Madison also expressed skepticism about the need for a bill of rights. In a letter to Thomas Jefferson, Madison eschewed bills of rights as “parchment barriers” easily trampled by an overwhelming majority in a respective state.[16] Nevertheless, Madison took up the challenge of constructing a federal bill of rights and among his proposed amendments, which he derived from the previously mentioned state proposals, was an amendment addressing quartering.

The House debate on the Amendment was short. A few members wished to edit the text of the Amendment, imbuing in it a stronger protection of the homeowner, but all such measures were defeated and the Amendment became one of the ten enshrined in the Bill of Rights.[17]

As mentioned before, the Third Amendment is one of the least litigated provisions of the Constitution. Perhaps this lack of legal cases is due to the self-evident nature of the Amendment. As Justice Joseph Story notes, “this provision speaks for itself. Its plain object is to secure the prefect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion.”[18] Yet the absence of litigation does not itself entail that the Amendment has at all times existed without violation.

Involuntary quartering on the part of United States soldiers appears to have happened during the War of 1812. While Congress did declare war on England, thus giving itself the authority to regulate quartering, it failed to provide any regulations governing the practice of billeting.[19] After the war, Congress did provide payment to those whose property was used “as a place of deposit for military or naval stores, or as barracks . . .”[20]

The Civil War brought about another instance of quartering under the Third Amendment—though its case is substantially more complicated than the War of 1812. Congress did not declare war on the Confederacy and it is unclear how periods of insurrection affect the Third Amendment’s distinction of peace and war. Regardless, even if a de facto state of war existed, Congress never issued any regulations governing the practice of quartering. Yet instances of the Union Army quartering in private homes appear in both loyal and rebel states.[21] The question of whether this action violated the Third Amendment is unsolved and is likely to remain so, as no Third Amendment case ever arose out of the Civil War era.

The lack of litigation and judicial action has left open some interesting questions about the applicability of the “self-evident” Third Amendment. One of these questions involves the Amendment’s applicability to the states.  Today, America’s troops enjoy barracks and accommodations so sufficient that it seems unlikely that troops would ever need to be garrisoned in a private home. Yet the question remains that, if an issue did somehow arise, would a state’s National Guard regimen be obligated to follow the Third Amendment (if no such provision existed in a state’s Constitution)? That question arose in 1982 with Engblom[22], yet the question still lacks a definitive answer.

Though it is sometimes ridiculed and is rarely discussed, the Third Amendment enshrines a right with a common law history as rich as any. Quartering abuses committed against the colonists propelled America into the Revolutionary War. After victory, the Founders worked to protect the public against any future abuses. The onset of the modern military tactics has seemingly thrown the usefulness of the Third Amendment into doubt, yet the Amendment still provides interesting and unanswered questions about federalism and the interaction of overlapping constitutional protections.


[1] This sentence paraphrases a metaphor from Grounding for the Metaphysics of Morals in which Immanuel Kant describes a good will as “a jewel … which has its full value in itself. Its usefulness or fruitlessness can neither augment nor diminish this value.”

[2] Bell, Tom W.. “The Third Amendment: Forgotten but not Gone.” William and Mary Bill of Right’s Journal 1, no. (1993): 117-118.

[3] Fields, William S., Hardy, David T., “The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History .” American Journal of Legal History 35, no. (1991): 395-397.

[4] English Historical Documents: 1042-1189, at 945 (David C. Douglas & George W. Greenway eds., 1953) (“Let no one be billeted within the walls of the city, either [a soldier of the King’s household] or by the force of anyone else.”)

[5] Fields & Hardy supra note 3 at 403

[6] The late Tudors had a bit of success expanding and improving the traditional militia system, but this system collapsed under James I, a pacifist who favored the repeal of militia statutes.

[7] Hardy, B. Camron. “A Free People’s Intolerable Grievance: The Quartering of Troops and the Third Amendment.” Virginia Calvacade 33, no. 3 (1984): 127

[8] Fields & Hardy supra note 3 at 403 – 405

[9] Great Britain. Statutes of Great Britain. London: , 1950. Print.

[10] Bell supra note 2 at 123

[11] Schwartz,Bernard. Roots of the Bill of Rights. Bernard Schwartz. 1980

[12] Fields & Hardy supra note 3 at 417

[13] Id at 417-18

[14] The Founder’s Constitution. 1 ed. 5, Amendments I-XII. Philip B. Kurland and Ralph Lerner. Indianapolis: Liberty Fund, Inc., 217

[15] Id

[16] Fields & Hardy supra note 2 at 424

[17] Kurland & Lerner supra note 14 at 217-18

[18] Id at 218

[19] Bell supra note 2 at 136

[20] Little, Charles. “Statues at Large Vol. 3.” A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875 . Available from http://memory.loc.gov/ammem/amlaw/lwsllink.html. Internet; accessed 22 May 2011.

[21] Bell supra note 2 at 137

[22] Id at 141-142

 

Robert Chapman-Smith is the Instructional Design Associate at the Bill of Rights Institute, an education non-profit based in Arlington, Virginia. He holds a Bachelor of Arts in Philosophy from Hampden-Sydney College.