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JohnDoe
02-22-2008, 11:45 AM
I found this great legal site on google, Cornell Law school puts it out, on the Constitution of the United States, when i was looking something up about our constitution and treaties for another thread that I was responding to.

Anyway, in this same other thread, it is being discussed whether our gvt has the right to do general searches on us or invade our castles so to say, without probable cause....can they do sweeps, where innocent people's privacy is invaded, even if never to be released by our gvt?

Soooooooo, being the one with an inquiring mind :), I looked up the fourth amendment on this site and started reviewing it and found this history spot and alot of other information about this amendment, including the background.

I have put in bold, and underligned, and even enlarged parts of this History section that I think are important to note and easy to put in to today's situations of the Nsa surveilences, the phone company/gvt sweeps with their tapping, and a number of other things.

There is much more on this at the link: http://www.law.cornell.edu/anncon/html/amdt4frag1_user.html#amdt4_hd7 going in to all kinds of cases that made it to court, defining the Amendment....


Anyway, i think all of us would benefit from reading each of our Bill of Rights amendments and how they came about...the history of them... and then maybe we could have some hard core discussions on searches without warrant by our gvt, and whether or not they are really constitutional to do on anyone in the united states legally or illegally, from the way it appears to me....it is not constitutional...

jd



FOURTH AMENDMENT
SEARCH AND SEIZURE
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.

SEARCH AND SEIZURE
History and Scope of the Amendment

History.—Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the utilization of the “writs of assistance.” But while the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the Colonies late and as a result of experience,1 there was also a rich English experience to draw on.

“Every man’s house is his castle” was a maxim much celebrated in England, as was demonstrated in Semayne’s Case, decided in 1603.

2 A civil case of execution of process, Semayne’s Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King’s agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King’s process.

Most famous of the English cases was Entick v. Carrington,3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials[p.1200]connected with John Wilkes’ polemical pamphlets attacking not only governmental policies but the King himself.4

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets and the like.

In an opinion, sweeping in terms, the court declared the warrant and the behavior it authorized subversive “of all the comforts of society,” and the issuance of a warrant for the seizure of all of a person’s papers rather than only those alleged to be criminal in nature “contrary to the genius of the law of England.”5 Besides its general character, said the court, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a “great judgment,” “one of the landmarks of English liberty,” “one of the permanent monuments of the British Constitution,” and a guide to an understanding of what the Framers meant in writing the Fourth Amendment.6

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize “prohibited and uncustomed” goods, and commanding all subjects to assist in these endeavors. The writs once issued remained in force throughout the lifetime of the sovereign and six months thereafter.

When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism.7 Otis lost and the writs were issued and utilized, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.


Scope of the Amendment.

—The language of the provision which became the Fourth Amendment underwent some modest[p.1201]changes on its passage through the Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. Madison’s introduced version provided “The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.”

8 As reported from committee, with an inadvertent omission corrected on the floor,9 the section was almost identical to the introduced version, and the House defeated a motion to substitute “and no warrant shall issue” for “by warrants issuing” in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision.10

As noted above, the noteworthy disputes over search and seizure in England and the colonies revolved about the character of warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave rise to no disputes. Thus, the question arises whether the Fourth Amendment’s two clauses must be read together to mean that the only searches and seizures which are “reasonable” are those which meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are “reasonable” searches under the first clause which need not comply with the second clause.11 This issue has divided the Court for some time, has[p.1202]seen several reversals of precedents, and is important for the resolution of many cases. It is a dispute which has run most consistently throughout the cases involving the scope of the right to search incident to arrest.12 While the right to search the person of the arrestee without a warrant is unquestioned, how far afield into areas within and without the control of the arrestee a search may range is an interesting and crucial matter.

CONTINUED HERE:

http://www.law.cornell.edu/anncon/html/amdt4frag1_user.html#amdt4_hd7

Classact
02-22-2008, 12:49 PM
So do you agree with the reasonable government searches or disagree?

What about alcohol checkpoints?

What about Customs checkpoints at airports?

What about the IRS demanding personal information?

JohnDoe
02-22-2008, 02:18 PM
[QUOTE]So do you agree with the reasonable government searches or disagree?

Yes, but i understand reasonable search and seizures to mean while a person is in the act of committing a felony, you can stop the person and take their gun, as example, without a warrant.


What about alcohol checkpoints?

I am not certain how i feel about that....on the one hand, they don't have the right to search your car unless something illegal is visually evident to them, and you do have the right to refuse to take the Breatholizer i believe because of the 5th amendment i think, I do believe the gvt does have to give notice if not an emergency to the public of where and when they will have their roadblocks set up, and driving is considered a privilege not a "right" so to say....so, i end with where i began, i dunno? :laugh2:



What about Customs checkpoints at airports?

Again, i am not certain....maybe I would consider those reasonable i think, because we are made aware of them ahead of time, and because flying is not a right of the people but again a priviledge...but honestly... not certain on the ruling if there was one by the supreme court.

jd



What about the IRS demanding personal information?

It's one of the most invaisive things our gvt does....should never have passed muster with the Constitution.

emmett
02-22-2008, 11:59 PM
A person should be able to live their lives unmolested by government........................................ ................PERIOD!

Government has no right to search my house for any reason......ever. Stay out of my car, my pockets and my life.

I do not want to be detained and routinely questioned.

I do not want to be filmed in public.

I do not want a National ID. Hell, I don't want a SS number.

I want to pay the same tax as EVERYONE else. One person...one tax. Stop making me at the point of a gun support worthless crackheads and lazy bums.

I do not want to pay for the birth of an illegal immigrant, I don't have to, I don't want to, BUT I DO. How does that work?

I do not want government intervening in the raising of my children. I know best what is right for them.

I do not want sex education taught to my children. I don't wish for ANY adult to discuss sex with my children except my parents, if I and only I choose such.

I want government to handle building roads with the tax I pay at the cash register. I want them to build infrastructure, defend my family from foriegn attack and mind THEIR own business, NOT MINE!

VOTE LIBERTARIAN so we can be America again and stop pretending that we can compromise and still have the American dream.

VOTE LIBERTARIAN!

manu1959
02-23-2008, 12:10 AM
the key word in the entire thing is ....

unreasonable......

and that word my friend can mean different things at differnt times to differnet people under different circumstance.....

JohnDoe
02-23-2008, 12:21 AM
the key word in the entire thing is ....

unreasonable......

and that word my friend can mean different things at differnt times to differnet people under different circumstance.....There have been several court cases defining "unreasonable" already and giving it , its precedence....at least from the research i have read on it?

we are not starting from square one here....i believe "reasonable" has already been given its legal definition, and that the 2 clauses in this amendment can NOT be separated when being reviewed.

Only NOW, is that precedence and meaning being challenged again by this administration, even though it has been basically settled in courts previously imo, and i personally don't buy it....we have had rulings on this giving precedence that need to be adhered to imho.

jd

manu1959
02-23-2008, 12:26 AM
There have been several court cases defining "unreasonable" already and giving it , its precedence....at least from the research i have read on it?

we are not starting from square one here....i believe "reasonable" has already been given its legal definition, and that the 2 clauses in this amendment can NOT be separated when being reviewed.

Only NOW, is that precedence and meaning being challenged again by this administration, even though it has been basically settled in courts previously imo, and i personally don't buy it....we have had rulings on this giving precedence that need to be adhered to imho.

jd

which one of those case was decided when terrorist were blowing up buildings.....

JohnDoe
02-23-2008, 12:52 AM
which one of those case was decided when terrorist were blowing up buildings.....
well, you might :) be right and it might :) need another review of it.... but i don't like it, nor the way we are moving the goal posts on damn near every one of our rights in the Bill of rights!

jd

manu1959
02-23-2008, 12:56 AM
well, you might :) be right and it might :) need another review of it.... but i don't like it, nor the way we are moving the goal posts on damn near every one of our rights in the Bill of rights!

jd

well given the state of thing would you prefer we were moving the goal posts right or left.....

think of it this way.....if america was you family and home which way would you be moving them to protect your kids....

JohnDoe
02-23-2008, 01:20 AM
well given the state of thing would you prefer we were moving the goal posts right or left.....

think of it this way.....if america was you family and home which way would you be moving them to protect your kids....I have been sitting here pondering on this, trying to figure out which way they should move...right or left, or forward or backward :eek:, to protect my American children?

and i keep coming back to NOT moving at ALL... the goal posts need to stay where they are and where they began, which will protect my American children the MOST in the long run, imo.

Did i ever confess being a stubborn one? I know I am a liberal at heart, but i am really not one that likes change...keep the goal posts where they were from the beginning!

so, maybe i am a narrow minded conservative and don't know it??? :laugh2::laugh2::laugh2:

jd

diuretic
02-23-2008, 01:25 AM
the key word in the entire thing is ....

unreasonable......

and that word my friend can mean different things at differnt times to differnet people under different circumstance.....

Which is why the courts get to interpret it, using, of course stare decisis.

diuretic
02-23-2008, 01:27 AM
A person should be able to live their lives unmolested by government........................................ ................PERIOD!

Government has no right to search my house for any reason......ever. Stay out of my car, my pockets and my life.

I do not want to be detained and routinely questioned.

I do not want to be filmed in public.

I do not want a National ID. Hell, I don't want a SS number.

I want to pay the same tax as EVERYONE else. One person...one tax. Stop making me at the point of a gun support worthless crackheads and lazy bums.

I do not want to pay for the birth of an illegal immigrant, I don't have to, I don't want to, BUT I DO. How does that work?

I do not want government intervening in the raising of my children. I know best what is right for them.

I do not want sex education taught to my children. I don't wish for ANY adult to discuss sex with my children except my parents, if I and only I choose such.

I want government to handle building roads with the tax I pay at the cash register. I want them to build infrastructure, defend my family from foriegn attack and mind THEIR own business, NOT MINE!

VOTE LIBERTARIAN so we can be America again and stop pretending that we can compromise and still have the American dream.

VOTE LIBERTARIAN!

Vote Libertarian if you're confused about law and government :laugh2:

Yurt
02-23-2008, 06:13 PM
There have been several court cases defining "unreasonable" already and giving it , its precedence....at least from the research i have read on it?

we are not starting from square one here....i believe "reasonable" has already been given its legal definition, and that the 2 clauses in this amendment can NOT be separated when being reviewed.

Only NOW, is that precedence and meaning being challenged again by this administration, even though it has been basically settled in courts previously imo, and i personally don't buy it....we have had rulings on this giving precedence that need to be adhered to imho.

jd

not necessarily. it does seem like it, however, you will notice in your research of cases that the 4th amendment continues to be a prominent issue in many constitutional/criminal cases. it is not a bright line rule. also, in your research look at the phrase "reasonable expectation of privacy." <-- that plays a big role in 4th amendment cases.

Classact
02-24-2008, 07:31 AM
[QUOTE=Classact;205751]

Yes, but i understand reasonable search and seizures to mean while a person is in the act of committing a felony, you can stop the person and take their gun, as example, without a warrant.

Actually, a reasonable search could be for any crime, like J-walking, a police arrests you and you have no ID on your person... the police takes you into custody until you can produce ID and in the process searches your body to assure you have no weapons... your charges are J-walking and vagrant unless you can produce the ID... The weapons and or any other illegal items on your body cannot be used to substantiate another crime because there was not probable cause for the search... the illegal items are no longer "your" stuff when you pay the fine for J-walking and show ID. The search was reasonable to protect the law enforcement officer's person.

I am not certain how i feel about that....on the one hand, they don't have the right to search your car unless something illegal is visually evident to them, and you do have the right to refuse to take the Breatholizer i believe because of the 5th amendment i think, I do believe the gvt does have to give notice if not an emergency to the public of where and when they will have their roadblocks set up, and driving is considered a privilege not a "right" so to say....so, i end with where i began, i dunno? :laugh2:

Your link has an opinion different than yours.


Again, i am not certain....maybe I would consider those reasonable i think, because we are made aware of them ahead of time, and because flying is not a right of the people but again a priviledge...but honestly... not certain on the ruling if there was one by the supreme court.

jd

You are a free person, an "American person", the same court that issues warrants identify "the people" as American person and define American person as any human being physically on US territory... If in fact you are a US citizen and free under the constitution why should you have to speak to a government agent, sign a statement leaving or upon return to American territory if you are in possession of a US Passport? Traveling to another country isn't a privilege "given by the government" it is a privilege given by the other government's nation you desire to visit... you are free to go where you please or aren't you? What does the constitution say about your travel restrictions?


It's one of the most invaisive things our gvt does....should never have passed muster with the Constitution.
The US federal government has the authority to work outside of the US constitution, for example under the gold tasseled (bordered) US Flag the federal government can remove rights granted by the constitution... an example are Armed forces lose constitutional rights... a soldier cannot speak badly of the Commander in Chief... A US citizen, that chooses to accept a Social Security Card accepts losses of constitutional rights and gives up state rights to the federal government requiring that state citizen to directly interact with the federal government outside of the constitutional protections. In the US constitution there is nothing stated about state citizens interaction with the federal government other than voting. The Buck Act placed US citizens outside of US and State Constitutional protections... read about it here: http://www.svpvril.com/OACL.html#Buck_Act Accepting the SS number makes you federal property similar to a member of the armed forces, government issue or GI.

The whole debate about the governments ability to search an American citizen is rather silly since the courts have defined the protections of the forth Amendment to apply to every human being physically located on US land. An illegal Mexican or terrorists has more protections against search than American citizens if you examine all current law since they don't have SS numbers. Should the government be able to listen to an American persons conversation with a known terrorists? Why would the American government be interested in any information of one of its GI's when all they have to do is mandate it?