By Clinton Gill
Glade Sun editor
The Fourth Amendment reads as follows:
"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."
The origins of the Fourth Amendment, like most others in the Bill of Rights, can be traced back to 17th and 18th century English common law. The Fourth Amendment expounds upon the idea that every human being is a sovereign creature. Sovereignty is supreme authority; for mortal men, there can being no higher cause than that of life and death. Each individual is therefore responsible for their own life, and no one has the right to violate that covenant. The Fourth Amendment is based on the principle that a person's home is their castle; it is their safest refuge, protecting them from the elements and attack. This idea, in the legal sense, first came from Sir Edward Coke (pronounced Cook). In the 1604 Semayne's Case, the judge, Sir Edward Coke, ruled that, "The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose." This definition lends an extension of the vessel of sovereignty to that of property. Property becomes an extension of the body. Within the confines of a home, a person has supreme authority and a reasonable expectation of safety. To invade upon that home then, without invitation, is a hostile act. It denies sovereignty. It is a declaration of dominion, meaning, if I can come into your house anytime I want, against your will, I am more powerful than you. You are at my mercy. If you are at my mercy, then you are not free. Private property rights are inseparable tenets of a free society.
In the 1760s, there were three very important cases that influenced the Founding Fathers. Two of the cases were English and are usually treated as a pair. Both Wilkes v.. Wood and Entick v. Carrington dealt with pamphleteers charged with seditious libel for criticizing the crown.
In the former, John Wilkes (not to be confused with the assassin) was a member of Parliament who had been printing anonymous pamphlets criticizing the king. The king issued general search warrants, allowing Mr. Wood to search for the authors, printers and publishers of seditious and treasonable materials. Under this "roving commission," the authorities arrested 49 people in three days, sometimes taking them from their beds in the middle of the night. The actual printer was caught in the roundup, and he subsequently gave Wilkes' name up. Mr. Wood and his minions forced their way into Wilkes' house, broke his locks and took some of his belongings. This was cause for legal action. In court, Wilkes won the decision. The judge declared the search illegal, noting it was "totally subversive of the liberty of the subject… [and] of the most dangerous consequences."
Entick v. Carrington was virtually identical to the Wilkes case. Lord Camden, the Chief Justice in the case made this famous statement:
"The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc. are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment."
The third case was the Writs of Assistance Case took place in the colonies. The British wanted to stop smuggling in Boston, so customs inspectors were issued blanket search warrants, called writs of assistance. The writs not only allowed them to search anywhere, they also compelled private citizens to help them carry out the searches. A group of local merchants sued but lost the case.
Our nation was founded on the principle of freedom. In order to be free, every citizen must be treated as a sovereign entity. While we all must give up some rights in order to be part of a peaceful society, allowing government agents to come into our homes, at their pleasure, is not consistent with the idea of sovereignty. Moreover, it goes against our framework.