The Fourth Amendment - What price Privacy?
©Mark Pitrone - June 1, 2004

Article the sixth [Amendment IV]

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.

How much expectation of privacy does an American Citizen (see my article on United States citizenship) have? This is a hotly debated subject in courtrooms all over America. Why do the police and prosecutors have to jump through so many hoops to convict a person who is so obviously guilty of an heinous act? The quick answer is that we should expect our governments to be cognizant of their lawful constraints in their desire to enforce the laws that we have entrusted them with, and we should be especially certain that it scrupulously follows that law which it seeks to enforce on our behalf, and sometimes on our persons, lest it break the very law it is sworn to uphold. To this end, the founders of this experiment in self-government crafted an amazing piece of work called the fourth Amendment.

As we have done with other Amendments, let us look at this one word-by-word, phrase-by-phrase and clause-by-clause to ascertain the founder's intent. To see the context of the Amendment we need to look at the Declaration of Independence. After stating the blaringly unusual (to government) statement that we are endowed by our Creator with 'unalienable' rights - rights that governments can not violate in any way - Jefferson went on to say

That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.

Our government was instituted for the express purpose of securing the unalienable rights with which the Creator endowed us. Among the Founders of this country was a Patriot named Noah Webster, who compiled An American Dictionary of the English Language in 1828 (hereinafter Webster's 1828 or W1828). This work standardized usage and spelling for the American language. He had this to say about

SECU'RE, v . t .
1. To guard effectually from danger; to make safe. Fortifications may secure a city; ships of war may secure a harbor.
I spread a cloud before the victor's sight,
Sustain'd the vanquish'd, and secur'd his flight. Dryden .
2. To make certain; to put beyond hazard. Liberty and fixed laws secure to every citizen due protection of person and property. The first duty of the highest interest of men is to secure the favor of God by repentance and faith, and thus secure to themselves future felicity (emphasis added).

So, our government was instituted to guard and make our rights safe from danger, to make them certain and put them beyond hazard. A draconian 'king' from 3500 miles away was tyrannizing our Founders, and they wanted to ensure that this would not be their posterity's fate. So they developed this Constitution and Bill of Rights to set very definite boundaries on the power of the general government. The Declaration enumerates some of the tyranny perpetrated by George III.

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world…

He has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people…

And having to do directly with the fourth Amendment

He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance…
He has plundered our seas, ravaged our coasts, burned our towns, and destroyed the lives of our people.
He has constrained our fellow citizens taken captive on the high seas to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.

I would say they were not secure in their persons, houses, papers, or effects. They were no after all secure in their travels on the seas, in their homes on the coasts or the wilderness, nor in their other property. The reason for this is that the king was used to the feudal system that still underlies the British Empire (they still refer to us as 'the colonies', only half in jest) today. In the feudal system of government, the king owns everything, including the animals in the forests (license to hunt for necessary food), the land the people work, and even the air his subjects breathe. In that system, the king grants land patents to the lords of the manor, but even the lord is not the owner for what the king grants, the king can recall to himself. W1828:

PAT'ENT, n. A writing given by the proper authority and duly authenticated, granting a privilege to some person or persons. By patent, or letters patent, that is, open letters, the king of Great Britain grants lands, honors and franchises.

In the British Empire, there is no freehold property, no fee-simple land for any subject (It is becoming such in America). W1828 says this:

In the United States, an estate in fee or fee simple is what is called in English law an allodial estate, an estate held by a person in his own right and descendible to the heirs in general… In England, there is no allodial land; all land being held of the king…

You can see how radical the Declaration and the ensuing Constitution were to the political world that was. They recognized allodial title to lands held in fee-simple by the people. Nowhere else in the world could the people in general own land beholden to no man. And the fourth Amendment secured this right to the people by force of the highest law of the land, a law that none, not even the government, could abridge. That was the reason so many came here from their homes in Europe - the hope of owning their own land 'free and clear' of government interference.

'The right of the people to be secure'… W1828 says:

SECU'RE, a . [L. securus .]
1. Free from danger of being taken by an enemy; that may resist assault or attack. The place is well fortified and very secure. Gibraltar is a secure fortress. In this sense, secure is followed by against or from; as secure against attack, or from an enemy.
2. Free from danger; safe; applied to persons; with from.
3. Free from fear or apprehension of danger; not alarmed; not disturbed by fear; confident of safety; hence, careless of the means of defense. Men are often most in danger when they feel most secure.

This is the sense of security our founders envisioned for us in our homes, to be so secure that we would not have to even think about defending our homes and property from our government. And that is what we had here until 40 years ago or so, thanks in large part to the people knowing their rights and the police not generally overstepping their authority. Our schools 40 years ago still taught the Constitution in civics classes.

'…To be secure in their persons, houses, papers and effects' means the people we entrust to enforce our laws are not to treat us as serfs. We have allodial title to our property; we are the kings of our homes. As such, there is no authority higher than the father (or other head) of a family, as long as he is not in violation of any Constitutional law, for it is within the general government's authority to enforce laws that stand the test of Constitutionality. There is a reason this phrase comes first in the Amendment; it was to be the norm that NO government official would even consider violating the realm of a sovereign Citizen.

To be sure, provisions were made to lawfully override the sovereignty of the Citizen, but they were strictly proscribed in the second phrase, which is amplified in the second clause. The second phrase is 'against unreasonable searches and seizures'. Webster's 1828 says;

UNRE'ASONABLE, a. s as z.
1. Not agreeable to reason.
2. Exceeding the bounds of reason; claiming or insisting on more than is fit; as an unreasonable demand.
3. Immoderate; exorbitant; as an unreasonable love of life or of money.
4. Irrational. [In this sense, see Irrational.] (emphases added)

IRRA'TIONAL, a. [L. irrationalis; in and rationalis, from ratio.]
1. Not rational; void of reason or understanding. Brutes are irrational animals.

The emphasized portions above are the ones meant here. For the government to demand and usurp the authority to enter anyone's home is unreasonable. That usurpation is a violation of sovereignty. Sovereignty can only be violated in accordance with the second clause of this Amendment.

'…and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation'. Notice that it does not say merely 'probable cause' but 'probable cause supported by oath or affirmation.' It says that any warrant must be supported by the sworn testimony of the accuser, not just the whim of a government agent. If the evidence sought is found and the accused is brought to trial, he has the right to examine the accuser who swore out the affidavit or warrant to the end of impeaching his testimony.

It also says that the warrant must 'distinctly' and 'singly' (W1828 synonyms of 'particularly') name the place to be searched and the person or property to be seized. There is no wiggle room left to the prosecutors or police, modern judicial interpretations and precedents notwithstanding. The accused is innocent until proven guilty, so the government agents must assume that the evidence sought will not be found. If it is not in the specific place named in the warrant, no amount of additional search may be made. For instance, if the warrant specifies that a certain room in a building be searched and the evidence is not found there, but is subsequently stumbled over by the government agents in another part of the building, the evidence is as if it did not exist until another warrant is issued. For the warrant to name a large building could be construed as too vague or broad a search parameter.

Remember, our founders assumed that our people would govern themselves by the 10 Commandments (see the top of the Constitution page), that our people were children of Israel after the spirit if not after the flesh. They also knew that people often act in their perceived self-interest to the detriment of the people as a whole, as did the children of Israel after the flesh, and that they must be punished if that act of self-interest harms another individual or the community, as were the Israelites. In specific instances and areas where the sovereign Citizen violates the Commandments, he abrogates his sovereignty and it is the government's place to punish the sinner (criminal) according to the same objective standard, i.e.; the Judeo-Christian Scriptures. If no harm comes to another sovereign or the only harm done is to the offender, then no crime has been committed and the government has no Constitutional jurisdiction. Restitution of loss is the first resort, and should be sought by a righteous judge.

Our general government and, taking its lead, the State and local governments have usurped power that is not granted them in the Constitution. The reason the people have tolerated this is that we have become wicked before YHWH. We have lost our privacy because we've abrogated our promise to observe his Torah. We have perverted and twisted (wicked describes a candle wick, strands of flax twisted and coated with wax to hold its shape) the Word of YHWH in our hearts and minds to the point that we call good evil and evil good. As a punishment from the Almighty we have been subjected to over 2.5 million laws that reside in 84 shelf MILES in the Library of Congress. YHWH gave us 10 general Commandments and specified action in 603 other instructions. This is the "Law of God", 613 Commands of scripture by which if we would live we would have no need of the other 2.5 million man made 'laws'. Since we have violated the Almighty's instructions (the real meaning of the Hebrew word 'torah'), he is punishing us with the intent that we understand our sin and turn to him in repentance and trust.

Abba (Avinu, our Father, YHWH) wants us to live with him in peace for all eternity. We can do so by turning our backs on our own way and our faces his way. He came in the flesh of Yeshua of Nazareth to give us an example of how to walk in his ways. Then he personally paid the price of our sins on the tree of Golgotha, as he had provided himself a lamb on Zion 2000 years before in Yitzhak's stead, as he had provided himself the lamb yet 2000 years before in Adam's stead. By trusting Yeshua as Adam and Abraham trusted Avinu, we can have the peace of God, YHWH's Shalom. Trust him whose very name means YHWH is salvation and deliverance. He can deliver the shalom that passes understanding. Do it now.

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