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The Fourth Amendment

Thu, 11/18/2010 - 21:00 — cmoth

Thought I forgot didn't you?

The Fourth Amendment to "the United States Constitution" as issued in "the Bill of Rights".

"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".

One of my favorites (I'm kind of a big fan of the Bill of Rights if you can't tell). Most would probably think that the Second amendment is my favorite because of my firearm related hobbies. They would be wrong. The Second Amendment is the one more publicly maligned and conspired against by those who openly seek authority over us but it is NOT the most important front in the battle. Think of it as more of a distracting side-show to the real damage being done to our freedoms and libertys. So, get a snack and some free time, this is going to take a while.

The struggle to maintain the integrity of individual and personal freedom is won and lost every time the Supreme Courts of any jurisdiction hold a hearing. Most of the cases in criminal court generally involve the Fourth Amendment in one way or another because it's the one most critical to an arrest. Unless performed in view of law enforcement most other forms of arrest for commiting a crime result from a complaint by some other person. They provide information, law enforcement takes the information and tries to either establish it as fact or fiction. Once established as fact in some way then you want to find evidence in some form or another that proves the information as fact. It has to be tangible evidence that the judge / jury can see or relevant information that would lead a reasonable person to believe the accusation to be true. In order to find this evidence we sometimes need to intrude upon privacy.

A lot of people don't appreciate how reluctant most of us in law enforcement are to arrest someone for something we didn't see ourselves. There is something called exculpatory evidence. It's the opposite of the inculpatory evidence used to find a person guilty. Exculpatory is crucial,and in my opinion more important than looking for the damning stuff. In order to build a good prosecutable case you have to be aware of the excuses the defendant or his attorney will try to present. Besides, if you find good solid evidence proving the suspect DIDN'T do what they are accused of you save yourself a lot of time and the tax-payers a lot of money.

If you haven't figured out by now I'm not the biggest fan of attorneys, on either side of the aisle. The biggest reason is because they view a trial, criminal or civil, as a game. Guilt or innocence is only relevant if it means they win. Justice seems to be an abstract topic to them so it's only spoken of in public to shore up their image. Nope, an attorney's bread and butter is a good win to loss ratio. Think of it as a K/D in gaming terms. You wouldn't want a person on your team who sucked and you wouldn't hire an attorney who lost more cases than they won. Makes sense in purely intellectual terms. But, the American Justice System is NOT supposed to be about technical terms. A sterile interpretation of law leads to a miscarriage of justice. If you take the humanity and discretion out of Law then all you have is code. Black and white establishment of raw fact may seem fair on the outside, but failing to take into account the mitigating circumstances which may have given cause to the suspects actions is unjust.

The Fourth Amendment was a way of trying to undue certain practices that were common under English rule. Since the primary concern of the Founding Fathers was individual liberty and freedom, then the abilities to be free in expression and in the ownership and control of property was paramount. It was disturbing to most that were reading over the original Constitution that circulated that these issues were not addressed and that is what lead to the inclusion of the first ten amendments in the first place.

I've already pointed out in previous articles on the subject that the Colonists were considered subjects of the King. There is a big difference between a subject and a citizen. A citizen has rights and self-determination. A subject has only those priveleges which serve the purpose and pleasure of the ruling class. It doesn't mean that royal subjects didn't have rights that were considered it's just that they weren't as important as the needs of "society" as a whole or the will of the crown.

I previously and somewhat briefly discussed the importance of the Third Amendment as it protects the rights of homeowners to be secure from their property being seized for use as a barracks. This unreasonable seizure of property is a primary ingredient to the fourth Amendment but isn't the only element. Now, let's break it down into segments and figure this out.

"The right of the people...". Sounds familiar doesn't it? That's because it is the beginning of the second structure of the Second Amendment. This is the line that establishes BOTH as being individual rights.  A lot of hooey has been hashed on the intent of the Founders by using capitalization in different versions of the Amendments. Since capitalization is used to provide emphasis I think they were just trying to draw attention to how important the subject capitalized was, NOT to try and redefine WHAT the subject was. That's something that only revisionist do to try and reinterpret intent to support their own agendas. Nope, "The right of the people..." is an individual right.

"... to be secure in their persons, houses, papers, and effects...". To be secure is to be confident and safe. To be secure in the listed topics, your own body, your own personal space, your documents and finances and your property, is defining the extent of the personal control and responsibility you have over yourself. Nobody can just take those from you without first overcoming the restrictions placed upon them by the remainder of the amendment. You are the master of your ship and the destiny that you steer it.

Note that the Founders used the word "their" instead of "its". If they had meant "the people" to only mean the body of the public instead of an individual then why use a word which focuses upon a specific instead of a generality? Just thought I'd point that out.

"...against unreasonable searches and siezures,...". This just shows that the Founders weren't going for anarchy. There are times when a persons privacy and security will have to be intruded upon if there is to be the rule of law and justice. But, those intrusions should be "reasonable". But, what is "reasonable"?

According to dictionary rea-son-a-ble is an adjective,

1. agreeable to reason or sound judgment; logical: a reasonable choice for chairman.

2. not exceeding the limit prescribed by reason; not excessive: reasonable terms.
3. moderate, esp. in price; not expensive: The coat was reasonable but not cheap.
4. endowed with reason.
5. capable of rational behavior, decision, etc.

Here is where everbody starts getting into trouble. Reason is getting harder and harder to come by. We have a society overwhelmed by rationalities (a term often confused with reason btw, that's also according to the dictionary. They meant in a literary and conceptual sense but it's ironic how much it is true). People are looking for more and more excusses for their behaviour in spite of the consequences and in fact a way to avoid those consequences. So, as a symptom, reasonable is now being rationalized to death. A reason is not an interpretation it;s an establishment. My reason is an absolute, my rationale is subject to interpretation. My reason for entering your home uninvited should be based on an establishment of fact and trust, it shouldn't be a rationality of coincedence to meet an objective. A search warrant shouldn't be granted based on what we want it should be granted based on what is necessary. Back in a bit, I'm having computer issues.


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