The Fourth Amendment takes another blow

  • 8 July 2016
  • NormanL
The Fourth Amendment takes another blow

A reminder, from Mark Fitzgibbons, that we are a nation of laws, and how the supposed guardian of the laws -- our government -- increasingly treats those laws with contempt. This piece references a recent Supreme Court case in which the majority opinion addressed the exclusionary rule, and in doing so, appears to give sanction to illegal government activity:

Through the frequent and growing use of “administrative subpoenas,” which are warrants issued by federal, state and even local government officials without prior approval of judges or magistrates, the government trespasses on papers and effects. Courts and legislatures have eliminated the “probable cause” and other Fourth Amendment standards for these judge-less warrants, giving great deference to government trespasses. Federal bureaucrats, state attorneys general, and even police now may trespass nearly at will on a wider swath of papers and effects even where no outstanding warrants exist as they did for Mr. Strieff.


Justice Thomas also notes that a “warrant is a judicial mandate.” English jurist Sir Matthew Hale, a significant influence on the Founders, was even clearer: They are “judicial acts,” he wrote in his History of Pleas of the Crown. This concept was well known to those who drafted and adopted the Fourth Amendment to the U.S. Constitution and its similar original state versions. Judge-less warrants issued by bureaucrats and other executive branch officials violate the separation of powers inherent in the Fourth Amendment, which is a constitutional check on arbitrary trespasses by government absent exigent circumstances justifying the search.


Many on the left have an animus towards police, which may account for their heightened attention to the Fourth Amendment when police are involved. Administrative subpoenas, though, are used to violate privacy, intimidate the exercise of First Amendment rights (as with subpoenas issued by liberal state attorneys general against climate change skeptics), suppress business innovation, and foster crony government. Administrative subpoenas have become institutionalized violations of the Fourth Amendment. America’s biggest lawbreaker loves administrative subpoenas.


Government violations of the Constitution happen every day across the country. As with the Strieff case, such conduct is properly called “illegal.” Through court opinions and legislative acts, these illegal government acts have supplanted the supreme law over government, and have helped make government America’s biggest lawbreaker.


More for us to consider in the wake of recent events.