Guest Editorial Graphic Schilling Show Blog

By Tutis Libertas

Guest Editorial Graphic Schilling Show BlogHJ 578 introduced in the Virginia General Assembly on January 9  by Delegate Richard L. “Rich” Anderson proposes an amendment to Virginia’s Constitution to prohibit unreasonable searches and seizures by government.

It is a “Fourth Amendment” for the 21st century.

This article provides a general explanation of why this proposed amendment to the Virginia Constitution is needed, and why the original Fourth Amendment is so important to our security and liberty.

The Bill of Rights to the United States Constitution was written by Virginian James Madison after Virginia had adopted its own ”Declaration of Rights” authored by George Mason.  Article I of the Virginia Constitution is where the Commonwealth’s Bill of Rights is found.

The Fourth Amendment to the U.S. Constitution is the law that protects people’s rights to their security from unreasonable searches or seizures of their “persons, houses, papers and effects.”  Virginia’s constitutional provision for searches and seizures at Section 10 of Article I is not as comprehensive as the Fourth Amendment.

The Fourth Amendment protects Americans’ right against abuse and arbitrary acts by government against ourselves and our most personal, private and even intimate property.  In other words, it is designed to prevent totalitarianism, or a “police state.”

The Fourth Amendment is therefore the rule of law — indeed the very foundation — for good law enforcement.  Its scope includes prohibiting unlawful searches and seizures conducted by our vast, unelected government bureaucracies.  One could call it law enforcement on rogue law enforcement itself.

The concept of the Fourth Amendment isn’t all that difficult for us Americans to understand, although we may take these rights for granted since we are more secure from totalitarian government than most other countries.  Frankly, we can thank the Fourth Amendment for that.

People have a right to be free from trespass, prowling and burglary — legally unjustified invasion or removal — of themselves and their property no matter who the trespasser or transgressor may be.

The saying “every man’s house is his castle” comes from the English common law preceding and shaping the Fourth Amendment.  The Fourth Amendment was written to confirm and forever clarify that government may not unreasonably or unlawfully trespass on our property and privacy.

Government and its employees and agents may search and seize our protected property only when, as a foundational premise, there is a strong and objectively verifiable reason to believe that a law was or is about to be broken.  This is what we call “probable cause.”

Reasonable searches and seizures often require a warrant, which is an official document or “writ” signed by a neutral judge or magistrate.  The warrant may not be signed by the person who is to make the search or seizure.  This ensures legal objectivity.

This neutral and detached process for issuing warrants helps prevent abuses, arbitrary invasions, unreasonable trespasses, or misuses of government power to bully or silence us.  It ensures that searches or seizures are justified on the basis that valid law was or is about to be broken, i.e., there is probable cause.

For a warrant to be issued, there must be a witness who swears to facts supporting that some law appears to have been broken.  Sworn facts and valid law to be enforced help prevent abuses and totalitarianism, even at the state and local government levels.

These Fourth Amendment processes are for our security.  They are designed to prevent government from being a legally unjustified or lawless trespasser against our property or rights.

Sometimes emergencies exist under which obtaining a warrant is impractical, so the Fourth Amendment contemplates “reasonable” action for the safety and security of people and their property.

Government exists for our personal security as well as the protection of our property and rights.  Good, sound law enforcement therefore is supported by faithful and informed adherence to the Fourth Amendment.

In countries without protections like the Fourth Amendment, government may invade people’s rights and security as trespassers, prowlers and burglars do, but with the vast resources of government behind those invasions.  Innocent Americans have the right to live free from fear of middle-of-the-night invasions by government, or unreasonable takings of our property.

We can say it this way:  The Fourth Amendment is designed to protect innocent Americans by prohibiting lawless abuses by government employees and agents.

Supreme Court Justice Louis Brandeis wrote in a 1928 case dealing with government searches, “If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

HJ 578 proposes an amendment to Virginia Constitution Article I, Section 10, which is currently titled “General warrants of search and seizure prohibited.”  The original provision in the Virginia Constitution is not as comprehensive as the United States Fourth Amendment, and so this proposed constitutional amendment is fit and wise.

With advances in technology, today we have types of property that the Framers did not have such as intangible data.  These new forms of property are often every bit as private, personal and intimate as the “papers and effects” protected by the original Fourth Amendment — even though their owners may publish or publicly disseminate them with a push of a button if he or she wishes.

But owners may wish to keep some or all of their intangible property private, share it selectively only with family, friends and associates, or otherwise store it confidentially with third parties.

The principles of protecting the security of our most personal data from unlawful government invasion are the same as protecting our “papers and effects.”   Just as hacking is illegal, our data needs to be protected from unreasonable searches and seizures.  Storing our data on personal devices, servers or in the cloud is not an invitation for government to trespass on or invade that property.

Also, with over 225 years of experience and hindsight dealing with the Fourth Amendment, we can better see where the courts and law enforcement officials would benefit from slightly more clarity to ensure our security and liberty.

The proposed amendment therefore more clearly defines “probable cause,” clarifies the need for neutral issuance of warrants, and guarantees reasonable remedies for when government’s lawlessness harms our rights.

Another Virginian, Founder and America’s fourth Supreme Court Chief Justice John Marshall, referred to the Constitution as “fundamental and paramount law.”

Only the people have the right and power to amend that law.  However, the Virginia General Assembly must first adopt HJ 578 before the amendment is put to the voters.

It is time for the people of Virginia to be allowed to vote to amend their Constitution to bring protections for themselves and their property against unreasonable search and seizures — rights protected by fundamental and paramount law — into the 21st century.

The proposed amendment may be read here.

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