Saturday, November 6, 2010

Fourth Amendment

"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 main legal gripe we have against the Border Patrol's highway, bus and ferry check points is, we say they are violating the Fourth Amendment right against unreasonable searches and seizures without probable cause. We know the Supreme 
Court has made an exception to this right at our borders but the 100 mile extension of our borders that effectively abridges the Fourth Amendment for two thirds of the American population seems overreaching.

Law abiding Americans seem to have trouble understanding any need for the Fourth Amendment. "I'm an American, I'm not breaking any laws, the search only takes a few minutes and maybe it helps protect us from terrorists. What's wrong with these random searches?" Well it certainly irritates and scares a lot of minority Americans who think they are being racially or ethnically profiled when they are pulled over and searched thoroughly while white Americans are waved through. Actually to some white Americans it is reminiscent of police state tactics in Nazi Germany or the Soviet Union.

But let's look a little deeper. What is the history and the purpose of the Fourth Amendment? Who is it supposed to protect? What's wrong with police state tactics if we are all law-abiding citizens?

Interestingly the protection against unreasonable search and seizure dates back at least to 1603 in England. ''Every man's house is his castle'' was a maxim much celebrated in England when in the 18th century the courts restrained the King's officers from raiding homes looking for John Wilkes' polemical pamphlets without due process. 
So maybe John Wilkes was exercising his right of free speech but in 17th century England the King thought he was guilty of "seditious libel".

In the American colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures.

So the Fourth Amendment really protects those who criticize the government, evade taxes, smuggle or maybe are guilty of other illegal or unpopular activity. We are back to "What's wrong with these searches if I am not breaking any laws?"

Are you sure you are not breaking any laws? Do you pay all your taxes - even on stuff purchased on the Internet? You wouldn't mind those nice Boarder Patrol officers - or maybe the police or IRS agents coming into your house to check your records would you? And, if you were suspected of not paying a tax on the book you just bought from Amazon or couldn't prove your innocence you wouldn't mind being incarcerated in that private prison in Tacoma with the concertina wire on the fence, would you?

Of course I'm exaggerating. It could never come to that. But there is that flap over the 1099s that the government wants to require to close an estimated $300 billion gap between taxes paid versus what is owed. There was that court case in which the state of North Carolina wanted Amazon to divulge all their customers so that NC could go after them for state sales taxes not paid.

Maybe it's more about draconian and disproportional enforcement. We don't mind so much getting a speeding ticket. And there is always the right to appeal in court if you really are not guilty. But being locked up in a prison for not paying a few dollars in state tax? It'll never happen. Yet a Mexican teenager in Forks who has been in this country nearly all of his life and doesn't even speak Spanish or a Guatemalan woman who has lost her Green Card or let it lapse can be imprisoned, charged with a felony and deported with no recourse short of paying many thousands of dollars in legal fees.

First they came for the Mexicans but I wasn't a Mexican ...

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