Greetings & Salutations my fellow South Dakotans'! Recently, my wife and I attended the GOP Freedom Rally held in the Exhibition Center at the Ramkota Motel in Sioux Falls, South Dakota. The guest speaker was David Horowitz, a best selling author for the last several weeks! We had a marvelous time and met David Horowitz and had our picture taken with David, and we had a chance to meet several South Dakota State House of Representatives and Senators. We were there with several members of the Prairie Patriots organization, of which I have recently become a member.
After the Freedom Rally, some Prairie Patriot members decided to grab a bite at a local restaurant. This is not as important as the debate that took place during our late dinner.
One of the discussions was about the 4th Amendment! Because my passion for the Constitution sometimes overshadows my judgment and clarity, I feel it necessary to set the record strait.
We had a good debate about the 4th Amendment, and an individuals right to privacy vs. the right of the State! We agreed to disagree and remain friends.
However, upon reflection, I could have done a better job and feel I failed to sufficiently explain my true reasons for my position in our debate.
So, here we go! One has to look at the original intent, the intent our Forefathers implicitly intended to reflect in the First Ten Amendments of the Federal Constitution, the Bill of Rights!
The 4th Amendment reads, "The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" . . . ! (Cite Omitted). Basically, so not to put to fine a spin on it, what this means to me is, unless you are committing a crime, you have a Constitutionally protected right to be let alone!
The 4th Amendment further reads, ". . . , and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation . . . !" Here, our founders clearly state that a search and seizure by the federal authorities would only be allowed if such an act on the part of law enforcement shall be by warrant, if not, the search and seizure would be invalid unless this all to important detail was attended to!
The latter statement here is commonly referred to by scholars of law, as "The Slippery Slope!" Because the founders' of the Bill Of Rights believed it was wrong that King George's minions could knock down our door in the early morning hours was wrong (i.e. illegal) they made sure the federal authorities sought a federal warrant before doing so. This requirement was huge in the analysis of every judge entertaining whether or not to issue a warrant.
Moreover, the 4th Amendment reads, ". . . [the warrant shall be] particularly describing the place to be searched, and the persons or things to be seized." Basically, this part was necessary so as to limit over reaching (e.g. the warrant is to Broad), thus encroaching upon someone other then the target of the search and seizure rights!
In a nut shell, our Founding Fathers absolutely did not want the Federal Government, all three branches, from violating our right to privacy, unless they have Probable Cause that a crime had been committed and that the person believed to have committed the crime was identified with a high degree of specificity. Now Probable Cause is a fine line concept. It's somewhere between "Clear and Convincing Evidence" and "Beyond a Reasonable Doubt!"
Inasmuch, once Probable Cause is established and a Warrant is issued by a sitting judge, then and only then can a legal search and seizure be conducted of the person named within the Warrant. Failure to obtain a warrant can and should lead to exclusion of any evidence acquired in the search, absent a warrant! Exclusion of such evidence is allowed under the "Fruit of the Poisonous Tree Doctrine", a ruling in a Supreme Court case. There have been many exceptions to this requirement, but not addressed herein!
All of the above rests perilously on the scale of justice! On one side you have the Individual's Right to Privacy vs. the Government's Right to Know! When a court adds the slightest amount of weight to either side it causes the "slippery slope" enumerated above. The inherent problem with the "slippery slope" is that once you're on it (i.e. have taken that step) it cannot be stopped or reversed! That's why judges should not legislate from the bench, which a topic for another day!
Bottom line, it is stated by our Forefathers', including, but not limited to Jefferson, that the Constitution should not be changed for "Transient Causes." Here, they were talking about revision of the Bill of Rights by members of the three branches of Government. The Founders' intended that such alterations would require an action on the part of the Congress to Amend the "Bill of Rights", not the President, and certainly not the Supreme Court! Although the Supreme Court has overstepped its jurisdiction numerous times, Congress has the power to reign in the Supreme Court in Article III. section 2. Unfortunately, Congress has been less then ambitious in their duties!
As an after thought, Congress created the 14th Amendment, which made the "Bill of Rights" applicable to the States. However, I believe Federal law trumps (i.e. no pun intended) State law and the 14th Amendment was not necessary. Here again is that "slippery slope" enumerated above coming into play, fortunately Congress did act appropriately.
At the end of the day, all that is necessary for our Federal Government to work efficiently is for each branch of government to simply do their job as authorized by the Federal Constitution. Stop the partisan politics, the separatism, the obstructionism and get the job done! Apparently this is easier said then done!