Wednesday, February 26, 2025

CREATORS: The Why Behind the Fourth Amendment Makes One Appreciate the Need

Matthew T. Mangino
CREATORS
February 25, 2025

The United Kingdom's greed in the late 17th Century contributed to what we in America have come to know as the Bill of Rights. At the time, the British Empire ruled the world. Britain controlled governments in Africa, Asia and the Americas.

In fact, the British Empire controlled 26 colonies in the Americas. That's right, Britain's domination in the Americas went beyond the 13 colonies in North America that would later become the United States. Britain also controlled settlements in, among other places, Bermuda, Honduras, Antigua, Barbados and Jamaica.

In Britain, the prevailing economic philosophy of the 17th and 18th centuries was to look to colonies to enrich the "mother country." To that end, Britain did not want their colonies trading with other countries. To prevent such trades, the British imposed high "tariffs" on imported goods.

In return, American colonists began smuggling goods from other countries into the colonies. In response, Britain began cracking down on them. The British started utilizing writs of assistance. The writs gave enormous power and discretion to customs officials.

The writs were general search warrants that never expired or required a basis for suspicion. They let officials enter the homes of colonists, at any time for any reason.

The writs, as well as subsequent criminal trials in admiralty court, without juries, led to rebellion, which in no small part turned into the revolution that catalyzed independence for the United States of America.

When it came time to draft a constitution for the new country, the founding fathers had not shaken off the sting of writs of assistance. In fact, the Fourth Amendment to the United States Constitution was written precisely to prevent the new government from running roughshod over its citizens.

In the words of colonial lawyer and activist James Otis, "a man's house is his castle," and the Framers sought to protect those homes and their occupants from unlawful searches and arrests.

The Fourth Amendment 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, and the persons or things to be seized."

This amendment is among the most sacred safeguards of individual liberty embedded in the Constitution.

First, the Framers wanted to make clear that people in this new nation would have a "right" to be secure in their homes and that their personal papers, either on them or in their homes, would remain private.

Secondly, the Framers created a plan for maintaining the security of persons and places. They resolved that a home could not be entered without securing a warrant. The warrant required by the Fourth Amendment would be much more than the writs of assistance. Each warrant first required that it be based on a level of suspicion — not a hunch, but rather probable cause, a term used in every arrest warrant and search warrant to this day.

The official seeking the warrant had to attest to its authenticity and have a neutral magistrate — a judge — sign off.

This is how a burgeoning nation prevented tyranny. The colonists tasted despotism and did not like it. The Fourth Amendment, in just 54 words, packed a lot of power. Interpreting the breadth and scope of those words continues in courtrooms around the country every day - as it should.

The work of protecting the rights and privileges of the U.S. Constitution never ends. America must be vigilant in protecting the fundament rights that we sometimes take for granted. Imagine an America where the police, military or government agency could come into your home any time, day or night, to see what you are doing or who and what you support.

What if the government could scan your phone or examine your computer in the name of efficiency, or any other reason or ... no reason at all?

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

To visit Creators CLICK HERE

No comments:

Post a Comment