From the Right



Killing the Constitution

Judge Andrew P. Napolitano on

In the last days of East Germany, when government officials detected that their power was unraveling, they ratcheted up enforcement of the nation's reporting laws. The reporting laws made it a felony to know of a crime and fail to report it. It was also a crime to tell the person of whose crime you learned that you had done so. There was no right to privacy and there was no freedom of speech.

This Orwellian tangle resulted, of course, in many false reports of crimes. It also resulted in many prosecutions for failing to report crimes or for warning others that they were being spied upon. As of this past weekend, we in America are headed to the same authoritarian place. Thanks to legislation that fell one vote short of demise in each house of Congress last weekend, America in 2024 will soon resemble East Germany in the late 1980s, where nearly everyone was a spy and no one could talk about it.

Here is the backstory.

The quintessential American right is the right to be left alone. Justice Louis Brandeis called it the most comprehensive of rights and the right most valued by civilized persons. It presumes that you can think as you wish and say what you think and read what you want and publish what you say, that you can exclude whomever you wish -- including the government -- from your property and from your thoughts; and that you can do all this without a government permission slip or fear of government reprisal.

This natural right is also protected in the Fourth Amendment to the Constitution, which requires a warrant issued by a judge based upon probable cause of crime before the government can invade your property or spy on you.

The warrant requirement serves three purposes.


The first is to force the government to stay in the lane of crime solving, rather than crime predicting.

This concern was initially manifest in 1765 when the British government entered colonial homes with warrants issued by secret courts in London based on governmental need, not probable cause, ostensibly looking to see if the colonists had purchased government stamps as the Stamp Act required. The true goal of these forced entries was to search for revolutionary materials in order to help the government predict who might be planning the revolution that came in 11 years.

The second purpose of the warrant requirement is to prevent fishing expeditions, hence the Fourth Amendment also requires that the warrants specifically describe the place to be searched and the person or thing to be seized.

The third and most fundamental purpose of the warrant requirement is to reduce to writing the right to privacy. All persons -- even the federal spies themselves, now about 100,000 in number -- want privacy. The Framers knew this and believed they had guaranteed it in the Fourth Amendment.


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Copyright 2024 Creators Syndicate, Inc.




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