Andrew P. Napolitano on returning to the dark days of pre-revolutionary law enforcement due to the Constitution’s failure to protect the quintessentially American right to be left alone.
F.B.I. SWAT team training at Watervliet Arsenal, N.Y., in 2012. (F.B.I. /Wikimedia Commons/ CC BY 2.0)
A recent Supreme Court oral argument about the liability of the F.B.I. for invading and terrorizing the wrong home has brought to mind the dark and dangerous history of law enforcement.
The practice of British agents rummaging through the private possessions on the private property of anyone against that person’s will was a significant contributing factor to the American Revolution.
Their most notorious invasion of private property was a subterfuge, perpetrated by the British Parliament, which sought to remind colonists that the king could enter their homes through his agents whenever he wished.
In 1765, Parliament enacted the Stamp Act, which required government stamps — they were actually inked images of government seals, more akin to what is seen when a postage stamp is canceled — on all papers in the possession of the colonists. This included letters, financial and legal documents, newspapers, pamphlets, even posters intended to be nailed to trees. To facilitate the enforcement of the Stamp Act, Parliament enacted the Writs of Assistance Act.
Much like America’s Foreign Intelligence Surveillance Act, the Writs of Assistance Act permitted British agents to obtain search warrants from a secret court for the homes of colonists based on governmental need and without identifying the name or address of the homeowner or even the object sought by the search.
These were general warrants. They were limitless in scope, as they authorized the bearer to search wherever he wished and seize whatever he found. Some students at the College of New Jersey — now called Princeton University — calculated that it cost more for the British government to enforce the Stamp Act than was generated in revenue from the sale of the stamps. We now know that power, not revenue, was the true goal of this dreaded law.
The violent colonial reaction to the enforcement of the Stamp Act led to its repeal by Parliament after just one year. But the Writs of Assistance Act — allowing the London issuance and colonial execution of general warrants — stayed in force until the British left in 1783. And general warrants were not outlawed here until the ratification of the Fourth Amendment in 1791.
The Constitution & Probable Cause
A commemorative vintage postcard depicting the burning of the Stamp Act in Boston. (U.S. Library of Congress/Wikimedia Commons/ Public Domain)
The Fourth Amendment was written to protect the quintessentially American right to be left alone. The violation of the right to be left alone usually implicates two fundamental liberties — the right to privacy and the right to own and possess property.
Privacy is a natural right because there are aspects of human existence and personal behavior that are not subject to the government. Natural rights come from our humanity. The natural right to own property has three aspects — the right to use the property, the right to alienate (lease, pledge or sell) it, and the right to exclude whomever the owner wishes — including the government.
As natural rights stem from our humanity, they may only be violated when we give them up or waive them by our violation of someone else’s natural rights. When James Madison wrote the Fourth Amendment, he rejected the waiver standard and instead chose the easier-for-the-government probable-cause standard as the sole element justifying a government invasion of property rights.
Today, to get physically — or even digitally — onto your property in defiance of your will, the government theoretically must meet Madison’s probable-cause standard.
Printed copy of the Stamp Act 1765. (British Parliment 1765 /Library of Congress / Gwillhickers/ Wikimedia Commons/ Public Domain)
That standard requires a showing to a neutral judge that it is more likely than not that a crime has been committed and that it is more likely than not that evidence of that same crime can be found in the place to be searched or the person or thing to be seized. These standards come directly from the language of the amendment itself.
Does the probable cause standard adequately protect property rights? It does not; just ask the folks whose home the F.B.I. destroyed.
The probable cause standard involves a weighing and balancing test pitting the nature of property ownership against the government’s claimed need for evidence. It weighs the harm to property rights caused by a government invasion as against the harm to the government by denying it the fruits of its planned invasion.
But the very concept of weighing a natural right against a government need is totalitarian. The government needs whatever it wants, whereas our rights are inalienable unless we waive them. A natural human right always supersedes a government wish. Thus, the only standard that morally justifies a government invasion of private property is waiver by the violation of another’s natural rights.
For example, if a bank robber runs into his house with stolen loot, he has waived his property rights in the house until he has been arrested and the loot retrieved, as he has violated the natural rights of the depositors in the bank and the bank’s right to exclude him from its property. If the government cannot demonstrate waiver by a violation of another’s natural right, then the property owner — even if he is the sought-after bank robber — can morally exclude the government from his property.
Because privacy and property ownership are inalienable rights and the government is an artificial creation based on a monopoly of force, when the government wants to enter upon private property against the will of the owner, and it seeks a warrant from a judge, the owner’s natural rights and the government’s needs can never be in equipoise.
Even when the government seeks to demonstrate waiver, the government should be presumed to be wrong, and every inference and bias should be drawn against it because the essence of government is the negation of liberty. We were born with natural rights. The government’s only source of wealth and power is what has been taken from us.
Regrettably, none of this is the law today as the Constitution is a demonstrable failure. Today we are back to search wherever you wish and seize whatever you find.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit here.
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Napolitano forgets that the Licencing Act was passed in 1679, placing a duty on paper, vellum, and other materials paid by stamps. The American colonies were granted an exemption from this and many other taxes paid by Britons on the “trickledown” theory, to encourage their growth. By 1765 they had become prosperous enough that Parliament chose to end its “salutary neglect” and require Americans to contribute to the cost of their own military defense. The catchphrase about “taxation without representation” is beguiling but meaningless: there were precious few in England or anywhere on earth in the 1700’s whose interests were represented in government. The great Samuel Johnson authored a work well worth modern notice, “Taxation No Tyranny,” deflating the disingenuous complaints of leading colonists, many of whom made their fortunes by smuggling.
Incidentally the Trump Supreme Court finally abrogated this supposedly sacrosanct principle, in its 2018 decision in “South Dakota v. Wayfair Inc.”, ruling that mail order customers must now be forced to pay sales tax to state governments outside the state in which they reside and vote.
I’m a fan of the Constitution and skeptical about some proposed amendments, but I think it’s worthwhile to consider how the document might be improved. It may be too late for us, but not for some future society. (In that vein, I’ve wondered about an amendment that would prohibit the ownership or control of any outlet purporting to offer news journalism by any person or entity that owns or controls any other kind of business.)
I’m not sure there’s such a thing as a “natural right,” but there is such a thing as human nature, and some ways of governing work with rather than against it. E.g., it seems to be human nature to want power over the fruits of one’s labor – we may choose to share it, but we object to its theft; and the Constitution takes advantage of both “the wisdom of the crowd” and the natural tendency for human consituencies to be most aware of and most effective in defense of their own interests by dividing and balancing power between state and federal governments and among the three federal branches.
Another natural fact is that knowledge is power, and a balance of power requires a balance of knowledge. When we have no privacy, when the state intrudes into our private lives and knows far more about us than we know about those running the state or about what the state is actually up to, we’ve given up too much power, and abuse of that power will surely follow.
Every scrap of land on earth that is inhabited by humans has been ‘colonized’ at one point or another through history, usually multiple times. Indigenous Britons were colonized and largely wiped out by the Romans, then the Angles, then the Saxons, then the Danes/Vikings, and finally by the Normans. Yet no one who complains about colonization of indigenous peoples ever sheds any tears for them.
Nor do they shed any tears for the indigenous tribes whose territory was seized/colonized by other indigenous tribes. The Lakota Sioux claim the Black Hills as their sacred land and have even weaved it into their creation myth. But they didn’t set foot in the Black Hills until the 18th century. They took it through violent colonization, murdering and raping and pillaging the territory until the Cheyenne were forced to flee. And the Cheyenne did the same thing decades earlier to the Kiowa, who had done the same thing to the Pawnee, who had done the same thing to the Crow, who did the same thing to the Ankara. The Black Hills had a 500 year history of violent colonization before the first white man ever set foot in them and forced out the Sioux.
The same thing happened south of the border, where the Aztecs terrorized, enslaved and and subjugated neighboring tribes for centuries before the Conquistadors showed up and did the same thing to them.
And in Eurasia, Genghis Khan built the largest land empire in the pre-industrial world using the same violent methods.
My point being, violent conquest and colonization is and always has been part of the human condition. Like it or not, for 99.9% of human history, might made right, and the right of conquest was how the world worked. I have a hard time getting worked up over the sins of European colonizers when the whole of human history is chock full of every ethnic group on earth doing the same thing to their neighbors. The only thing that sets Age of Discovery Europeans apart is their ability to traverse great distances over oceans and conquer the New World.
Excellent points, though the continued political consequences of the European conquests and Israel’s ongoing conquest of Palestine is still extremely relevant today and thus people are indeed getting worked up over it despite earlier episodes of the same.
Law and rights are human conventions. There is no natural right.
When my french ancestors stated “Les hommes naissent libres et égaux en droit” they thought it was obviously true. It was not. It was their decision, that we all support indeed, but it was a decision, not an obsevation
Alain (Tours France)
What about the natural rights of indigenous populations holding no deed to property? Is the government justified in stealing it? That has been the legacy of colonial powers and the trick used in the global south to steal property and resources from those who have lived on ancestral lands for thousands of years. Capitalism justifies theft. When will libertarians like the judge stop evading this crucial question?
How Indigenous people are treated – regardless of country, boils down to this: RACISM. We, the white race, the supreme executors of whatever it is, we want to steal.
When you haggle about legal issues while the other side doesn’t care, you have already lost.
By now, it should be obvious that legal norms don’t mean much.
Today’s reality is that ‘might makes right’.
When faced with a bully, you either submit or resist as best you can.
You live in a dictatorship. Get used to it.
Today’s reality?
That’s all of human history’s reality. Do you think those lines drawn on a map in Europe and Asia were drawn based on the consent of the governed? Heck no. They were drawn and redrawn for centuries through bloody wars. That’s how the world has ALWAYS worked, since the first caveman beat down his neighbor to lay claim to the better cave and more fertile hunting grounds.
“…Constitution is a demonstrable failure. Today we are back to search wherever you wish and seize whatever you find.”
In 1985, when I took criminal procedure (due process, etc.) in law school, the professor predicted “someday this will be called the history of criminal procedure.” I think it came sooner than he thought.