Fourth Amendment

The Fourth Amendment Is Supposed to Work for the People, Not the Government

The FBI thinks the constitutional right to privacy is a pain in the neck and they'd prefer to do without it.

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Fourth Amendment Blues
NSA / Wikipedia Commons

While Hillary Clinton and Bernie Sanders are battling in their final round in the Democratic primaries and Donald Trump is arguing that Clinton should be in prison for failing to safeguard state secrets while she was secretary of state, the same FBI that is diligently investigating her is quietly and perniciously seeking to cut more holes in the Fourth Amendment to the Constitution.

That amendment — which requires the government to obtain a search warrant issued by a judge based upon some evidence of criminal wrongdoing, called probable cause, before the government can search persons, houses, papers or effects — is the linchpin of the right to privacy, famously referred to by Justice Louis Brandeis as the right to be let alone.

The Fourth Amendment has a painful yet unambiguous history. The essence of that history is the well-documented and nearly universal Colonial revulsion to the British use of general warrants.

General warrants, which were usually issued in secret in London, permitted British soldiers and agents in America to search wherever they wished and seize whatever they found. General warrants were not based upon any individualized suspicion, much less any probable cause. Their stated purpose was the need to enforce the Stamp Act, a totalitarian measure that cost more to enforce than it generated in revenue.

The Stamp Act required all colonists to purchase and affix stamps to all legal, financial, political, personal and public documents. It was billed as a revenue-gathering measure, but it truly was used as an excuse to humiliate the colonists by permitting soldiers and agents to enter their homes ostensibly looking for the stamps. They were really looking for evidence of revolutionary ideas and plans against the king.

After Americans won the Revolution and wrote the Constitution, they did so with the determination never to permit the new government here to do to Americans what the pre-Revolutionary British government had done to the colonists. Their chosen instrument of that prevention was the Fourth Amendment.

But the feds have been wearing away at the right to privacy for generations. The Right to Financial Privacy Act (which has nothing to do with protecting privacy) permits federal agents to obtain certain bank records with search warrants issued by other federal agents — as opposed to judges — as long as they are looking for mobsters or drug dealers. The Patriot Act (which has nothing to do with patriotism) enables FBI agents to issue search warrants to other FBI agents for certain business records — including doctors' and lawyers' offices, car and jewelry dealers, and the post office — as long as they are looking for threats to national security. And the Electronic Communications Privacy Act (which interferes with the privacy of almost all electronic communications) permits FBI agents to access certain metadata (the who, where and when of emails, but not their contents), as long as one FBI agent issues the warrant to another and as long as the recipient uses it for national security purposes.

Now the FBI wants access to everyone's internet browser history, as long as its agents are looking for spies or terrorists; and again, it proposes that rather than present probable cause to a judge and seek a warrant as the Fourth Amendment requires, one FBI agent be authorized to issue a search warrant to another.

The federal government's antipathy to the Fourth Amendment is palpable and well-known — notwithstanding that everyone who works for the feds has taken an oath to uphold the Constitution, not evade or avoid it. Last week, FBI Director James Comey effectively told the Senate committee that is writing this damnable new legislation that complying with the Fourth Amendment is a pain in the neck and his agents could operate more efficiently without it.

Wake up, America. The Fourth Amendment is supposed to be a pain in the neck for the government.

The Fourth Amendment was expressly written to protect our individual right to privacy from the voracious and insatiable appetite of government to assault it. It was also written to ensure that government can seek evidence against bad guys, but it was meant to force the government to target them based on real evidence, not to let it sweep them up in a suspicionless net along with the innocent.

When Edward Snowden revealed the nature and extent of domestic spying on everyone in America three years ago, he revealed a secret that somehow 60,000 federal agents and contractors were able to keep. That secret was a novel and perverse interpretation of certain federal statutes so as to use them to justify spying on innocents.

But what we have here with this FBI request to access our browsing history — which reveals deeply personal, political, medical, legal and intimate data about us — is coming about openly through our elected representatives. It is not only the FBI that secretly wants this but also members of Congress who are on the verge of openly approving it.

And don't expect your internet service provider to tell you that the FBI has come calling, as this legislation would prohibit the service provider from telling you that your records have been accessed. This provision violates the First Amendment to the Constitution, which states that "Congress shall make no law … abridging the freedom of speech."

Wake up, America. How many congressional assaults on the Constitution will we tolerate?

Since the government obviously does not take its obligation to uphold the Constitution seriously, why bother with requiring one FBI agent to authorize another? Why not let any FBI agent search wherever he or she wants, break down any door, seize any records and invade anyone's privacy, lest compliance with the Constitution be a pain in the neck?

Wake up, America. The Constitution has become a pain in the neck to our personal liberties, because as a safeguard of them, it obviously no longer works.

COPYRIGHT 2016 ANDREW P. NAPOLITANO | DISTRIBUTED BY CREATORS.COM

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60 responses to “The Fourth Amendment Is Supposed to Work for the People, Not the Government

  1. Comey is also the person responsible for “Chasing the Dragon” drug addiction propaganda, and he is responsible for “Don’t be a Puppet” de-radicalization program (which only serves to sell ISIS to rebellious/mischievous kids). So yes, this is part of a systematic agenda to take away our rights and thanks for ringing the alarm. (What’s the goal? A perpetual jobs program for law enforcement. I kinda feel sorry for them actually – what will they do with themselves when the drug war winds down?)

    1. I kinda feel sorry for them actually – what will they do with themselves when the drug war winds down?

      I’m not worried. They’ll find some other unwinnable “war.”

      1. They’ll find some other unwinnable “war.”

        The War on “Human Trafficking”

        The War on Smuggled Cigarettes

        The War on Climate Change Deniers

        I’m sure there’s many more, but those should give them a good start.

        1. War on Domestic Extremism — self-perpetuating, because the more people object to it, the more proof that, hey, obviously, these people are extremists who need to be watched! Why would they mind being watched if they don’t have anything to hide?

      2. I’m sure the War On Idleness will be coming once the fiscal reality can no longer be denied.

    2. Hey,they have it covered with the ‘war on carbon’.

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  2. It’s cute Judge Nap thinks 4a hasn’t already been rendered meaningless.

    1. Wait until Hillary gets to make a SCOTUS pick. The First and Second will be gone by the end of her first term.

      1. Constitutional rights are subject to reasonable regulations. The Crown Princess has said so.

        1. Except abortion. She didn’t say that, but if pressed she would (albeit in a weaselly plausible denial politician kind of way).

        2. Constitutional rights are subject to reasonable regulations.

          The term of art these days is “common-sense.”

      2. If not for that damn SCOTUS I would want a Democratic president and Republican congress every time, no hesitation, given the choice between the two parties.

        But I almost think the Trump-apologist “libertarians” have a point, if they are simply saying, “We trust him on the one thing about nominating from the standard list of ‘conservative’ judges.” I think it’s unwise to believe him on even that, but if I didn’t I think I could see some merit in backing the first presidential candidate to make tyranny a central campaign promise over a half-again-worse version of Obama. The judicial branch is where it’s at really at, now as much as ever, and the next few years will determine our country’s direction for decades if not centuries.

        1. Couple things there.

          1. We have seen over these last few years the rep congress isn’t checking any abuses the diem prez may be involved in. In fact, it seems they are rubber stamping whatever he wants. The comment, after they begged the electorate to give them both houses, that they really can’t do anything without the WH is very telling that they have no backbone for a real fight.

          2. It may be unwise to trust him on judicial appointments but one cannot know for sure what he will do. We do know for a fact what mrs. clinton will do. Trump will have to go against the will of the voters that voted for him and have to deal with that mess, or mrs clinton thinking she has a mandate to change the court for the next 20 years.

          Whatever a president wants to do the congress needs to check anything that does not benefit the american people. There are supposed to be checks and balances, that is why we have the form of gov’t we have, on paper at least. Unless he gets a type of congress that obama has and knows he can do almost anything he wants with just a few whining about it but not really doing their jobs to check it, he will not be able to do all that he says he wants. Besides, if you read the basic points of the art of the deal he never meant to get all that he is saying. You don’t start a negotiation by holding out the minimum what you want.

        2. So you’re an optimist!

          I have doubts that there will even be an “America” in decades. And centuries? What have YOU been smoking?

      3. Or Trump.

  3. Did Judge Napalitino manage to write an article without an excessive amount of question marks?

    1. ??????????? ,Better?

      1. Not Quite. Where did that picture come from? Was it Final Fantasy XIII?

        1. Napolitano should have called this article “Final Fantasy IV.”

    1. Thanks, Slammer. That was really good.

  4. The F.B.I has disregarded the 4th since it’s founding.J. Edgar Hoover set the standard and several Presidents complicit. Comey is just the latest.

    1. “The F.B.I has disregarded the 4th since it’s founding”

      It’s not just the FBI. It’s far worse than that.

      Every cop in the country, from places like NYC to tiny, insidious bergs like Piperton, Tennessee, are trained and encouraged to get around that 4th amendment thing anytime they can. The 4th is nothing but an impediment to them doing their jobs.

      Sadly, getting around the 4th is quite easy for them as few people have any idea it exists or when they should use it. But, even using it legitimately is a dangerous act. You invoke the 4th at a simple traffic stop, and you’ve just enraged the beast. You’ve exhibited “contempt of cop” and they’ll now show you which end is up. The very act of you invoking the 4th creates reasonable suspicion to them.

      Cops, at any level, are liars if they ever insinuate the least bit of respect for the 4th.

      1. That’s because the job of law enforcement officers is not to enforce the law. They don’t know the law, nor do they care about it. Their job is to make you obey. Doesn’t matter if the command is unlawful or illegal, once they give a command then they will use all means necessary to make you obey. Failure to obey will ultimately be punishable by death. So if they ask you to submit to an illegal search, and you assert your rights, their job is to kill you.

        1. They don’t know the law because they are not required to know it.

        2. Doesn’t matter if the command is unlawful or illegal

          Any command they give is, ipso facto, a lawful legal command. Because “I AM THE LAW!”

          1. Sly? Izat you?

      2. Andy Griffith didn’t take shortcuts.

        Holy shit, think we’d ever see something like this on a TV cop show today?

        1. That kind of makes me want to cry. Once upon of time that sort of idealism was common-place.

        2. These days, Mayberry probably has an armored vehicle and a SWAT team that serves no-knock warrants every week on hillybillies doing meth.

        3. I used to see it quite regularly on “COPS”.

          I think one of the reasons that show went away is, as much as it tried to show cops in a positive light, it repeatedly showed them behaving unconstitutionally over, and over, and over and…

          Why do you think police unions raise a big stink over officer cameras? Catch a cop doing someone illegal? Why, we can’t let THAT happen!

  5. How many congressional assaults on the Constitution will we tolerate?

    How many ya got?

  6. How many congressional assaults on the Constitution will we tolerate?

    Aleph null.

  7. Judge Nap for SCOTUS. Or should this be in the form of a question?

    1. Why isn’t Judge Napolitano on the Supreme Court already?

      1. Only in your dreams (and mine).

  8. Individual ritghs trump the government. Anything less is treason against our country. She must be stopped, eliminated from any discourse. . . Democratically.

  9. But really, what is Kloey Kardashian doing today? That seems to be all that most people are interested in. And apparently most who aren’t focused on that are wetting their pants that bin Laden’s ghost and an army of wetbacks are going to forcefeed their children drugs or evil religions, so ‘please, keep us safe, we’ll do anything……’

    This isn’t going to get better until the response to every snooping “request for compliance” results in a firm “go to hell”.

    I’m not holding my breath.

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  11. Fiscal reality denier- Burn them!

  12. yknow what else costs more to enforce than the revenue it generates?

  13. The natural evolution of government is to accrue more power to itself. Where does it get the power? From the people. People have rights and powers. Governments only have powers. If the people do not stop the power-grab by the government then the fault lies with the people. When life was hard–the colonial and pioneering days–the people were vigilant regarding theirs rights and powers. Now, life is relatively easy and, as long as the people have their six-packs and flat screen TV’s to watch sports on (bread and circuses anyone?), then the people are happy and complacent, which is what the government wants them to be. It is easier to take away the legitimate rights of happy and complacent people and accrue more power to the government than it is to take away the rights of people who know that their lives are better when there is less government intervention.

    All hail the imperial government. (Dissenters will be shot.)

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  15. The Fourth Amendment Is Supposed to Work for the People, Not the Government
    The FBI thinks the constitutional right to privacy is a pain in the neck and they’d prefer to do without it.

    1. I apologize for the tardiness of this comment.
    2. This pretty much sums up the attitude of the socialist filth who are enslaving us.
    3. But they will be the first to tell you and anyone who will listen.
    The people of this country is here for the convenience of the government.
    4. That should be obvious if you have paying attention to our country’s history for the past 100 years.

  16. Strikes me that We, ThePeople might well benefit from a very short leash and a choke collar on The FBI

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  26. Interesting.

    The FIRST American Revolutionary War started over insults to liberty like this – and kicked off with an attempt at gun control.

    Wouldn’t it be delicious irony if the SECOND time the government was overthrown started out the same way?

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