A Man’s House is His Castle: Arguments Against Fourth Amendment Limitations

…continued from A Man’s House is His Castle: Statement of Question and Arguments Favoring Fourth Amendment Limitations.

Arguments Against Fourth Amendment Limitations
The necessities for Fourth Amendment protection extend over half a millennia. History has shown repeatedly that when presented with the chance, government cannot and should not be trusted with voluntarily protecting the best interests of its people. Originally, the Fourth Amendment was designed to offer protection against the search of physical property in the name of collecting taxes. At the time, abusive use of writs of assistance helped propel a call to arms that ended with the birth of a new nation. America was formed because “[t]he history of the present King of Great Britain is a history of repeated injuries and usurpations.”1

However, with the advent of the Internet and other forms of non-tangible communication, it seems as if history is doomed to repeat itself. While the Framers designed the Fourth Amendment with a particular set of circumstances in mind, it should not be construed that this was the sole objective of the Amendment.

Like all Amendments, the intent of the Fourth Amendment was to limit the Government in all its forms – executive, judiciary, legislative, and, by extension, militarily as well, from causing intrusion into the lives of the people.

In the battle between the right of the people and the power of the Government, the Court has often shown that it favors the right of the people.

The “clear and present danger” test used in Schenck and referenced as cause to expand government powers in the previous argument was later overturned in Brandenburg v. Ohio, 395 U.S. 444 (1969). In its opinion, the Court wrote, “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”2

This narrower limit on government power restored rights to the people and forced the Government to provide critical evidence to support its claims before it can suppress the rights of the Amendment.

In United States v. U.S. District Court, 407 U.S. 297 (1972), the Court ruled on the case involving a warrantless wiretap used for the purpose of “’gather[ing] intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.’”3 The United States argued that “wiretaps involving domestic security should be exempt from the warrant requirement of the Fourth Amendment because of the secrecy necessary for successful intelligence gathering, the importance of domestic security, and the complexity and continuous nature of intelligence gathering.”4 This case, which was argued in 1972, is similar in scope to what the United States Government is currently attempting to do in the name of National Security. In United States v. U.S. District Court, the Court held eight-to-zero (Justice Rehnquist did not take part in the consideration or decision of the case) that a warrant was needed for a wiretap, writing:

But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment5.

To see the Court vote unanimously on such the issue should only reaffirm the need to be ever vigilant in protecting the freedoms the Fourth Amendment offers.

Recently, the United States Justice Department rescinded its belief that “the Fourth Amendment had no application to domestic military operations.”6 In response to the Yoo memo, Justice Department spokesman Brian Roehrkasse said, “We disagree with the proposition that the Fourth Amendment has no application to domestic military operations. Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search7.”

Continued tomorrow with the Summary


  1. United States Declaration of Independence. 

  2. Brandenburg v. Ohio. 395 U.S. 444, Washington, D.C. : Supreme Court of the United States, 1969. 

  3. United States v. U.S. District Court. 407 U.S. 297, Washington, D.C. : Supreme Court of the United States, 1972. 

  4. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5. p. 805 

  5. United States v. U.S. District Court. 407 U.S. 297, Washington, D.C. : Supreme Court of the United States, 1972. 

  6. Yoo, C. John. Memorandum for William J. Haynes II, General Counsel of the Department of Defense. Department of Justice, United States. 2003. Memorandum. p. 8 

  7. Hess, Pamela and Jordan, Lara Jakes. Memo Linked to Warrantless Surveillance. [Online] April 2,
    2008. [Cited: April 14, 2008.] http://ap.google.com/article/ALeqM5hJKgeE0Z-SivATjokutYBdh9wDwD8VQ5HFO4. 

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