There have been times when the U.S. Constitution protected Americans. Functionally today, those days are gone. We have seen in Minneapolis why the U.S. needs to have a Fourth Amendment, writes Judge Andrew Napolitano.
Immigrant women and children detained in US Border Patrol station in Weslaco, Texas, June 2019. (DHS Office of Inspector General, Wikimedia Commons)
Legal scholars have many lenses through which to examine the U.S. Constitution. Lawyers need to master about 150 Supreme Court decisions in order to have a sufficient understanding of the government.
But most of what lawyers have studied is theory — how the Constitution is supposed to work, as opposed to how it actually does work. This “supposed to” versus “actually does” conundrum is often called the formal versus the functional.
Formally, the United States still has a Constitution. We still have the three branches of government. Congress still has the House of Representatives and the Senate.
The president is still elected by the Electoral College. The courts still function to resolve disputes and to define what the laws mean and what the Constitution means.
Yet, thanks in large measure to the public fear and mania in the war on drugs in the 1980s and 1990s, the war on terror in the 2000s and 2010s, and now the war on immigrants, functionally, Congress found it easy to cut constitutional corners and to look the other way as one crisis after another has led to the expansion of executive powers and the erosion of personal freedoms.
Fourth Amendment sign at a demonstration in New York City against the police racial profiling practice known as Stop and Frisk, June 2012. (Terence McCormack, Flickr, CC BY-NC-ND 2.0)
The principal victim in all these wars has been the quintessentially American right to be left alone, which is expressly protected in the Fourth Amendment, which reads:
“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 or the persons or things to be seized.”
The courts have held that all searches and seizures, except for a few exigent circumstances, undertaken without warrants are by definition unreasonable, and thus in contravention of the amendment.
In 1947, when overstaying an immigrant’s visa was a civil wrong — like filing your taxes late or failing to shovel the snow from your sidewalk — Congress crafted the concept of administrative warrants in which one federal agent authorized another to look for these civil wrongs. The theory was these were not crimes and no one could go to jail, so a judicial warrant wasn’t needed.
The war on drugs began the slow erosion of the right to privacy by a law enforcement belief that the mere possession of controlled dangerous substances was so harmful to the social order that its eradication was a greater good than preserving constitutional norms.
Unfortunately, this attitude permeated into the judiciary, which soon became loath to allow — using Justice Benjamin Cardozo’s phrase — the criminal to go free because the constable has erred.
But, in the war on drugs, just like in the war on terror, the constable did not err, he intentionally violated constitutional norms because of a belief that he could get away with it.
.George W. Bush is joined by House and Senate members as he signs ‘Patriot Improvement and Reauthorization Act of 2005’. (White House photo by Eric Draper)
Then in 2001, the Patriot Act permitted one federal agent to authorize another to conduct searches of personal private records in the custody of one’s physician, lawyer, banker, telephone and computer service provider, even the mailman.
The theory was that you gave up your privacy when you allowed these custodians to house your records. And, in a strike at the First Amendment, it prohibited the recipient of an agent-written warrant from telling anyone of its receipt.
“The British use of general warrants was a principal impetus to the American Revolution. The whole purpose of the Fourth Amendment was to eliminate and forbid general warrants.”
Then, after the drumbeat of anti-immigrant hysteria and paranoia infected government at nearly all its levels and Congress converted immigration violations from civil wrongs to criminal acts, the feds told their agents to use administrative warrants to arrest people.
This was done in blatant violation of the Fourth Amendment, and is being done somewhere in the United States even as this essay is being read.
Administrative warrants are general warrants that authorize the bearer to look where he wishes and seize what he finds. The British use of general warrants was a principal impetus to the American Revolution.
The whole purpose of the Fourth Amendment was to eliminate and forbid general warrants.
Today in Minneapolis and elsewhere, searches and seizures of persons, houses, papers and effects are being conducted without judicial warrants.
Administrative warrants often don’t even name the person seized. They permit appearance, occupation and location as the descriptive authorization for group stops and arrests.
Free Our Future. Families Belong Together. Abolish ICE. March and Day of Action. Some 10,000 protestors march in Minnesota, 2018. (Fibonacci Blue, Flickr, CC 2.0)
This has resulted in regular, consistent, systematic and massive violations of Fourth Amendment rights of citizens and immigrants.
Throughout this sordid history of government indifference to the Constitution, the attitude of the feds who did the violations, and often the jurists and jurors who validated them, and the legislators who enabled them, has been us versus them.
We don’t use drugs, they do. We aren’t terrorists, they are. We were born here, they weren’t.
Until now.
Now, we have seen on the streets and in the homes of the hapless residents of Minneapolis the reason we have a Fourth Amendment.
The government cannot be trusted to evaluate or restrain itself when it comes to compliance with the Constitution. Hence the solemn requirement of the interference by the judiciary between the government and its targets.
Hence the absolute requirement of probable cause of crime. Hence the mandatory requirement of specificity.
Now, the Trump administration — beating the bushes against all immigrants, even longtime law-abiding residents with American children and grandchildren — has used administrative warrants, which have never been authorized by the Supreme Court, to break down the doors of the homes of immigrants and American citizens and drag them in their underwear in subzero weather to awaiting government vehicles.
Now, the same feds who trample freedoms kill innocent Americans in the streets.
Paraphrasing Justice Louis Brandeis, when the government becomes the lawbreaker, it breeds contempt for the law and due process; it invites anyone to become a law unto himself; it propagates the anarchy it produces.
There have been times when the Constitution protected us.
Functionally today, those days are gone.
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 https://JudgeNap.com.
Published by permission of the author.
COPYRIGHT 2024 ANDREW P. NAPOLITANO
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The direction this is heading is …that if law enforcement doesn’t respect the original concepts of US Law and present lawmakers devise imaginative clauses to skirt Constitutional protections (like the patriot act ect…) then there is basically no reason to respect any of them . They certainly can’t be trusted.
And Their claim of jurisdiction over any free man or woman is akin to masked armed men telling you they OWN you and your family …
Perhaps level heads will eventually prevail ?
I knew America no longer “had a Constitution” when I went to protest at a national political convention and Democrat led police forces, under Democrat mayors and governors, forcibly directed me to a “free speech zone”. This of course made the point very clear, that Free Speech did not exist outside of this cage where one could speak under the observation and weapons of the local Democrat-led police force.
Technically, the “Constitution” does still exist as the Presidency, the Congress, and the Supreme Court, and the “multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.” (see Declaration of Independence) all still exist, are empowered, and are fully funded. If the Constitution did not exist, then these would not exist.
What no longer exists is the Bill of Rights, which was supposed to limit this central government and restrain its powers. So, Americans no get openly punished for speaking freely, and have no protections or due process to defend against those “swarms of officers to harrass our people and eat out their substance..”
Only parts of the Constitution have been effectively abolished. The parts that power this powerful central government and this insanely powerful chief executive have been fully maintained. Its the limits that were placed on this government and executive that have been abolished on a bi-partisan basis for my entire lifetime.
No.
The Amendments need to be amended!
Any government document is only as strong as the ability of those living under said government to enforce it. Was it not George W. Bush who referred to the Constitution as “just a GD piece of paper?” The ruling class only believes in laws that keep their criminal enterprise safe from prosecution. Refer to George Carlin for further instruction. “It’s a big club and you ain’t in it.”
“The government cannot be trusted to evaluate or restrain itself when it comes to compliance with the Constitution. Hence the solemn requirement of the interference by the judiciary between the government and its targets.”
*
Solemn means very serious or formal in manner, behavior, or expression. It can also refer to something done sincerely or with a sense of gravity, such as a solemn vow or ceremony.
The United States has been ignoring the requirement for congressional declaration of wars contained in Article I, Section 8, Clause 11 of the US Constitution all but five times in its history (War of 1812, Mexican-American War, Spanish-American War, WWI, and WWII) ever since its “Quasi-War” with France in 1798-1800 under the administration of the United States’s second president John Adams (authoritarian proponent of the Alien and Sedition Acts), merely eleven years after every delegate at the 1787 Philadelphia Convention unanimously agreed upon this definition of “war powers” (with the lone exception of Pierce Butler from South Carolina, whose views on executive power to declare war have somehow become the de facto interpretation even though he lost that debate). Likewise, the United States government has also ignored myriad treaties that it signed and ratified, thereby constituting the law of the land under the “Supremacy Clause” of the US Constitution, including but certainly not limited to the 1928 Kellogg-Briand Pact, the 1945 United Nations Charter, and the 1948 Organization of American States Charter that contain prohibitions on warfare as an instrument of statecraft and other casual violations of nation-state sovereignty.
“Does the US Still Have a Constitution?” It’s used to wipe themselves with?
“Does Israel Have a Constitution” They use their hands?
“Do birds have a constitution” They drop it on your windshield.
Sadly, although Orange Judas’ poll numbers are down, these lawless policies are still supported by millions of dumbed-down, conditioned and misinformed people who think that he is “getting rid of the illegals” and that this is a positive thing.
Decades of misinformation by government and mass media (oligarchy) has resulted in a population largely ignorant of the Bill of Rights and many see the “libruls” and the “illegals” as enemies who don’t deserve legal protections. (until it happens to them, but too late) . They don’t care about genocide, raping children, murdering women and children, bombing countries into the Stone Age etc. lawlessness abroad and lawlessness at home. (and we dare criticize other countries?)
Of course, the Feds don’t have the resources to detain and deport millions of undocumented, that is clearly not their intention. The lawlessness and abuse of power is designed to intimidate, terrorize, and polarize the population. They make high-profile examples of people being illegally detained, mistreated, and even murdered. Do as you are told, or get illegally detained, mistreated, abused and/or shot.
The law and taxes are only for the “little people”.
I’ve shared another important article written by Andrew P. Napolitano which, because Facebook refuses to permit links to articles published in the extremely credible Consortium News, I’ve had to copy and reformat.
The article is important but a better question might be, “has the US ever really had a constitution”.
During my career in academia, “constitutional theory” was among the courses I taught and it led me to realize that in the United States, as far as I could discern, courses on constitutional law did not touch constitutional concepts but rather, merely the history of Supreme Court decisions, way too many of which were utterly politicized and frequently incoherent, and usually totally ignored the real constitutional concepts dealt with in the 9th and 10th amendments.
Informative and awfully true. So please tell us how we can hold our officials accountable in our legal system!!!
Asking officials to comply is likely to be useless. Protesting is just another form of asking for compliance. Voting them out is pointless as we just get more of the same. Ultimately it may come to remembering that political power flows from the barrel of a gun.
In truth, the fact has always been: what has it actually constituted throughout its history?
The question, contemporaneously, only now being more assertively broached, by the entire population at large!.