Thoughts on Proposition 8

The following is a short response for an in-class quiz we had today in Introduction to Law. Lately, I’ve been thinking about the constitutionality of California’s Proposition 8 and so I was pretty excited to be able to take a stab at determining its validity. Since the following was an in-class quiz, it should not be considered as a thorough argument. I picked a response format similar to a Supreme Court Majority Opinion.

The facts being evaluated are two fold: A) Is Ms. Sykes sill married? and B) Is California’s Proposition 8 allowed under the United States Constitution.

In the matter of Ms. Sykes current marital status, several facts must first be established. We will assume that Ms. Sykes was legally married to another person of the same sex under California State law and such marriage was valid and recognized. Second, we shall assume that Proposition 8 is now a part of the California State Constitution and in full effect. Finally we shall assume that, for the purposes of this question only, Proposition 8 is constitutional.

Article 1, Section 10 of the United States Constitution states, in part, that “No state shall…pass any…ex post factor law, or law impairing the obligation of contracts.” The rule prohibiting ex post fact law is not applicable in this instance because the issue does not deal with anything criminal. That is to say, Proposition 8 does not make same sex relationships illegal, it just does not deem a marriage between people of the same sex as valid or recognized.

The second part of the quited Article 1, Section 10 address the obligation of contracts. Marriage is the joining of two people to become one. Taxes are filled jointly, property is owned jointly, and certain legals privileges exist between spouses because of their joint operation. In fact, for a marriage to be legal, both parties must sign documents that, for all intents and purposes, is a legally binding contract. To allow for the passing of a law which impairs the obligation of that contact is thus unconstitutional. Held: Under Article 1, Section 10 of the United States Constitution, Wanda Sykes is still married and her marriage is valid and recognized in the State of California.

In the matter of the constitutionality of Proposition 8, it would seem that the afore argued point would be significant cause to declare the proposition as unconstitutional as it is written. However, we shall endeavor to further prove this point. The 14th Amendment to the United States Constitution states, in part, that “No state shall…deny to any person within its jurisdiction the equal protect of the laws.” This amendment and the subsequent Brown v. Board of Education (347 US 483, 1954) ruling lay the groundwork. It would seem self-evident that denying the marriage of two people because of their sex would be denying them equal protection under the law. It was not that long ago that a black person was not legally allowed to marry a white person or that black children and white children were to be educated in separate but “equal” schools. We fine this law to be no different in its meaning or intent: to disenfranchise a particular class of individual because one thinks lesser of them.

Ignorance

I recently received an email from someone. I’m not going to say whom; and if this person happens to read my blog: I’m not trying to point you out or pick on you. Promise.

The email essential asked me to sign an online petition to make Obama prove that he’s an American.

The above mentioned website states, in part, that:

There are numerous questions as to Obama’s citizen status raising suspicion and doubt about Obama constitutional qualification to be president. To settle these questions Mr. Obama must produce proof of citizenship!

It is reasonable that these documents should be produced considering that his father is Kenyan, his adoptive father is Indonesian, and his grandmother claims to have been present at his birth in Kenya. If he is a natural born citizen then producing these documents should not be any problem.

I’m not quite where to start on this one. I don’t know if this petition is being passed around because Obama is black or because people were upset John McCain didn’t get elected. Either way, it should not matter. Low-blow tactics like this are lame, ineffective, and divisive.

Just before the election, I heard of cases (and even received a text message) that said that due to the amount of people wanting to vote in this election, people wanting to vote for Barack Obama should vote on Wednesday, November 5th. I also saw a similar tactic used to ask McCain supporters vote the day after the election as well.

Now, I’m not a lawyer (IANAL), but I would suspect that making statements to that effect are illegal. If they’re not illegal now, I bet they soon will be. And in any case, I have incredible disdain for anyone who would post, publish, transmit, etc such a message. Like I said before, low-blow tactics like this are lame, ineffective, and divisive.

So, in my ongoing mission to quash ignorance and I typed up a rather lengthy email and sent it back to this person. I now present to you an edieted version of my response:

I’m concerned by your potential motives and you lack of research. I suspect that you are not in favor of Barack Obama being elected President, which is fine. I’m not here to debate politics. What causes me concern is that you are willing to spread rumors or even lies because you do not favor Obama and without doing any research of the facts.

Now, let me stop for a second. Those are some serious charges that I’ve levied against you and I make them based on indirect evidence. It is easily within the realm of possibility that my allegations against you are false. If they are, it’s important that you let me know so that I can correct the record and apologize.

My request is that the next time you want to forward something, especially something as potentially divisive as claiming Obama may not be an American Citizen, I would strongly urge you to research the facts. Ignorance is a dangerous thing and I would encourage you to always seek the truth. Always.

Now, you would probably not be receiving this email if, in fact, the allegations held truth. However, they don’t. Here are a few links from reputable sources that I believe prove that President-Elect Obama is an American Citizen.

The first place I like to check is Wikipedia. And Wikipedia does confirm that that Obama was born in Hawaii: “Barack Obama was born at the Kapi’olani Medical Center for Women & Children in Honolulu, Hawaii,[1] to Barack Obama, Sr., a Luo from Nyang’oma Kogelo, Nyanza Province, Kenya, and Ann Dunham, a white American from Wichita, Kansas[2] of mainly English, Irish and smaller amounts of German descent.[3][4][5]” (Source: http://en.wikipedia.org/wiki/Barack_Obama#Early_life_and_career)

However, Wikipedia, by itself, should not be considered an authoritative source. That is to say, just because Wikipedia says Obama is an American citizen doesn’t mean that he actually is. Fortunately, Wikipedia provides sources for their information. The [1] link refers to an article in the Washington Post, “Before crossing the overpass above the H1 freeway, where traffic zoomed east to body-surfing beaches or west to the airport and Pearl Harbor, he passed Kapiolani Medical Center, walking below the hospital room where he was born on Aug. 4, 1961.” (Source: http://www.washingtonpost.com/wp-dyn/content/article/2008/08/23/AR2008082301620_pf.html)

More research leads to confirmation of these facts by the LA Times, “Well, the folks at FactCheck.org say they have seen the certificate, touched and vouched it — Obama is as American as baseball, apple pie and, these days, burritos, pasta and kung pao chicken.” (Source: http://latimesblogs.latimes.com/washington/2008/08/mystery-solved.html) and provide an image of the actual birth certificate (Source: http://latimesblogs.latimes.com/washington/2008/06/obama-birth.html)

The aforementioned FactCheck.org writes, “The director of Hawaii’s Department of Health confirmed Oct. 31 that Obama was born in Honolulu.” (Source: http://www.factcheck.org/elections-2008/born_in_the_usa.html)

The Associated Press confirms all of the above:
“State officials say there’s no doubt Barack Obama was born in Hawaii.
Health Department Director Dr. Chiyome Fukino said Friday she and the registrar of vital statistics, Alvin Onaka, have personally verified that the health department holds Obama’s original birth certificate.” (Source: http://ap.google.com/article/ALeqM5iw1At-4G1xuE50oXVFRlBPfR3dqgD945OLU00)

I could probably continue to find proof of Obama’s American citizenship until the cows come home. But I think you get the point.

And lest you think that this entire email is from an overzealous Obama supporter, I did not vote for Barack Obama….although I have no way of proving that to you 😉

–End email–

So, let’s recap. Hawaii became a state in 19591. Barack Obama was born in Hawaii in 1961. Barack Obama is, under Article II, Section 1 of the U.S. Constitution, eligible for Presidency. If you have a problem with this, feel free to make “a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State.”2))3.))

Please tell me I’m not alone in my thoughts.


  1. I didn’t actually state this fact in my argument since I assume it’s an easily confirmable fact that is not subject to interpretation. 

  2. (8 U.S.C. 1481(a)(5 

  3. My point is not that you should renounce your citizenship because you don’t want Barack Obama to be President. My point is that you might consider renouncing your citizenship if you don’t want to play by the rules ((Staples, I’m suspecting you’ll want to argue this point. 

A Man’s House is His Castle: Summary

…continued from A Man’s House is His Castle: Arguments Against Fourth Amendment Limitations.

Summary
It is the recommendation of this author that rights established in the Fourth Amendment be interpreted broadly. While this author recognizes the need for National Security, this author also realizes the dangers of ceding one’s rights to government power.

It seems clear to this author that while the main intent of the Framers was to prevent government from performing abusive searches and seizure of a person’s home and belongs in the name of tax collection, the Framers also intended the Fourth Amendment to prevent all forms of search and seizure, reasonable or not, without a proper warrant.

The warrant system is one of the many checks and balances employed by this great nation to ensure that no one person or organization has all the power. To allow the Government to suspend or eliminate the parts of the Fourth Amendment at will is no different from reinstating general warrants or writs of assistance.

To allow the United States to realize a time of general warrants or writs of assistance would be catastrophic and could lead to civil unrest.

In 1763, during a debate over a cider tax and its enforcement requirements that would have allowed a liberal search provision, William Pitt remarked, “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter; all his force dares not cross the threshold of the ruined tenement!”1

The King is not above the law.

The President is not above the law.

The Constitution shall protect us.

–30–

Special thanks to those who edited it:

  • Kim Russell
  • Corinne Johnson
  • Joyce Raveling
  • Mom

Download: A Man’s House is His Castle: A Discussion on the Fourth Amendment and National Security


  1. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5. p. 775 

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. 

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

…continued from A Man’s House is His Castle: Interpretation of the Fourth Amendment.

Statement of Question
Thus, the stage is set. In light of recent global developments, specifically the terrorist attacks of September 11, 2001, and the ensuing “global war on terrorism,” should the right of unreasonable searches and seizures be limited to protect national security?

Arguments Favoring Fourth Amendment Limitations
Like most issues that deal with constitutional law, there is a battle between the rights of the people and power of the Government. Under very rare and certain circumstances, there is compelling state interest to limit the scope of constitutional protection.
This limitation of constitutional protection is easiest seen in the First Amendment and free speech. In the decision for Schenck v. United States, 249 U.S. 47 (1919), Justice Holmes wrote in the opinion of the Court:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right1.

Justice Holmes made it clear that even within a right as simple as freedom of speech, there is a line that the people cannot cross and still expect constitutional protection. Justice Holmes also noted that the line is subject to move during a time of war.

The Schenck decision sets a precedent that can easily be applied to the Fourth Amendment. While not engaged in a traditional war that consists of nation-on-nation fighting, the United States is engaged in a war with persons, both domestic and foreign, who are attempting to cause undue harm to America and its inhabitants. It would be a dereliction of duty for the United States not to perform its due diligence in attempting to thwart such attacks in the interest of National Security.

In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Court held six-to-three that “[t]he Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country.”2 This decision, in part, laid the groundwork for a memo written by John C. Yoo, Deputy Assistant Attorney General of the U.S. Department of Justice.

On March 14, 2003, Yoo wrote a memorandum for Wiliam J. Haynes II, General Counsel of the Department of Defense. Yoo wrote, “Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court’s treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations.3(Emphasis added)

As such, there appeared to be a compelling state interest to limit the scope of the Fourth Amendment to protect the people of America. By limiting the Fourth Amendment and restoring writs of assistance, the Government is in a better position to more effectively prevent terrorism on home soil. For example, being able to more thoroughly conduct taps of telephones lines could lead to the arrest of suspects trying to cause harm.

Continued tomorrow with Arguments Against Fourth Amendment Limitations


  1. Schenck v. United States. 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470, Washington, D.C. : Supreme Court of the United States, 1919. 

  2. United States v. Verdugo-Urquidez. 494 U.S. 259, Washington, D.C. : Supreme Court of the United States, 1990. 

  3. 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 

A Man’s House is His Castle: Interpretation of the Fourth Amendment

…continued from A Man’s House is His Castle: Historic Development.

Interpretation of the Fourth Amendment
The Fourth Amendment has been in place for over 200 years. In that time, America and the world have changed drastically. Nations have literally come and gone within that time, and yet the United States Constitution and Bill of Rights have remained steadfast. There does, however, remain a question of how one should interpret the text of Fourth Amendment.

With the advent of electricity, telegraphs, telephones, radio communication, and the Internet, the question of what the Framers of the Fourth Amendment intended is more important now than it ever has been before.

Broken into sections, the Fourth Amendment seems straightforward in its meaning: People within America have the right not to be unreasonably searched themselves or in their place of residence. People within America also have the right not to have papers and other items seized unreasonably. These rights shall not be violated unless someone under oath (or affirmation) declares that there is probable cause that describes the places to be searched and/or the persons or items to be seized. Only then shall a warrant be issued for only the above-mentioned places described to be searched and/or the persons or items to be seized.

However, there remains much to interpret. Thomas Davis, an Associate Professor at the University of Tennessee College of Law, explains that “evidence indicates that the Framers understood ‘unreasonable searches and seizures’ simply as a pejorative label for the inherent illegality of any searches or seizures that might be made under general warrant…thus, they never anticipated that ‘unreasonable’ might be read as a standard for warrantless intrusions.”1

The idea that the Framers never considered there might be ‘reasonable’ searches and seizures is shown by the fact that the “ex officio authority of the peace officer [was] still meager in 1789. Warrant authority was the potent source of arrest and search authority. As a result, the Framers expected that warrants would be used. Thus they believed that the only threat to the right to be secure came from the possibility that too-loose warrants might be used.”2

Based on Davis’ research, it then becomes entirely reasonable to assume that the Framers intended warrants to be used significantly more liberally than warrants are used currently. Thus, the only reason warrants are not used as liberally would be due to the expansion of the ex officio authority of peace officers to search and arrest, which is exactly what happened during the 19th century3.

Throughout the 20th century, the Supreme Court often had to clarify ambiguous parts of the Fourth Amendment. In Olmstead v. United States, 27 U.S. 438 (1928), the defendant argued “that the wiretapping of ‘private telephone conversations between the defendant and others…amounted to a violation of the Fourth Amendment.'”4 In a five-to-four ruling, the Court held that the defendants Fourth Amendment rights were not violated because the Court could not “justify the enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight.”5 Moreover, the majority wrote that “[t]he reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house and messages while passing over them are not within the protection of the Fourth Amendment.“6(Emphasis added)

The Court interpreted the Fourth Amendment literally and since the telephone was not listed in the Amendment, it was not covered. The dissent countered that a “sealed letter entrusted to the mail is protected by the Amendments. The mail is a public service furnished by the Government. The telephone is a public service furnished by its authority. There is, in essence, no difference between the sealed letter and the private telephone message.”7

While the Olmstead decision was a blow to the right to be secure, Katz v. United States, 389 U.S. 347 (1967), overturned Olmstead and established a wider scope of protection given by the Fourth Amendment. The Court wrote, “For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”8 The Court also took time to correct the thinking in the Olmstead case, writing, “[the] Amendment was thought to limit only searches and seizures of tangible property. But ‘[t]he premise that property interests control the right of the Government to search and seizure has been discredited.'”9

The major development from Katz was the implementation of the “Katz test – whether the individual has an expectation of privacy that society is prepared to recognize as reasonable.”10

Kyllo v. United States, 533 U.S. 27 (2001), furthered the protection offered by the Fourth Amendment and affirmed the decision set forth by the Katz decision. However, Kyllo is not as straight forward as Katz. In Kyllo, an Agent of the United States Department of the Interior performed a thermal imaging scan of the petitioner’s home from the passenger seat of the Agent’s car and from the street behind the petitioner’s home. Performing the scan allowed the agent to “[conclude that the] petitioner was using halide lights to grow marijuana in his house.”11

The Court had already ruled that “[visual] surveillance [is] unquestionably lawful because “‘the eye cannot by the laws of England be guilty of trespass.'” Boyd v. United States, 116 U.S. 616, 628 (1886) (quoting Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K.B. 1765)).”12 Thus, one might think there is little thought required to assume that the passive surveillance conducted by the Department of the Interior Agent is “unquestionably lawful.” The Agent simply shifted the frequencies of the emitted energy rays into ones that could be perceived by humans. However, the Court took a more philosophical approach.

Referring back to the Katz decision, the Court writes, “We held that the Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he ‘justifiably relied’ upon the privacy of the phone booth. Id., at 353. As Justice Harlan’s oft-quoted concurrence described it, a Fourth Amendment search occurs when the Government violates a subjective expectation of privacy that society recognizes as reasonable.”13

When the Katz test is applied, is becomes apparent that Kyllo‘s right to privacy as provided by the Fourth Amendment was, in fact, violated.

The Court concluded in its opinion:

While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no “significant” compromise of the homeowner’s privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward.

“The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.” Carroll v. United States, 267 U.S. 132, 149 (1925).

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant14.

Continued tomorrow with Statement of Question and Arguments Favoring Fourth Amendment Limitations


  1. Davies, Thomas Y. Recovering the Original Fourth Amendment. Michigan Law Review. 1999, Vol. 98, 547. p. 551 

  2. Davies, Thomas Y. Recovering the Original Fourth Amendment. Michigan Law Review. 1999, Vol. 98, 547. p. 552 

  3. Davies, Thomas Y. Recovering the Original Fourth Amendment. Michigan Law Review. 1999, Vol. 98, 547. p. 552 

  4. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5. p. 781 

  5. Olmstead v. United States. 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, Washington, D.C. : Supreme Court of the United States, 1928. 

  6. Olmstead v. United States. 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, Washington, D.C. : Supreme Court of the United States, 1928. 

  7. Olmstead v. United States. 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, Washington, D.C. : Supreme Court of the United States, 1928. 

  8. Katz v. United States. 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, Washington, D.C. : Supreme Court of the United States, 1967. 

  9. Katz v. United States. 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, Washington, D.C. : Supreme Court of the United States, 1967. 

  10. Kyllo v. United States. 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94, Washington, D.C. : Supreme Court of the United States, 2001. 

  11. Kyllo v. United States. 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94, Washington, D.C. : Supreme Court of the United States, 2001. 

  12. Kyllo v. United States. 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94, Washington, D.C. : Supreme Court of the United States, 2001. 

  13. Kyllo v. United States. 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94, Washington, D.C. : Supreme Court of the United States, 2001. 

  14. Kyllo v. United States. 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94, Washington, D.C. : Supreme Court of the United States, 2001. 

A Man’s House is His Castle: Historic Development

…continued from A Man’s House is His Castle: Introduction.

Historic Development
After the United States Constitution was ratified in 1788, a series of amendments were proposed and passed. The fourth of these amendments 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 seized1.

The Framers wrote the Fourth Amendment in response to both “English and American experiences of virtually unrestrained and judicially unsupervised searches”2 carried out by the British government. Indeed, the British government had not always had such a liberal display of search and seizure. The movement toward expanded powers began with the Tudor dynasty.

During the Tudor dynasty, which lasted from 1485 until 16033, the state licensed the production of printed matter to control the “seditious and nonconformist publications [that] had become a matter of intense state concern.”4 In order to suppress the undesirable publications, the Worshipful Company of Stationers and Newspaper Makers (more commonly called the Stationers’ Company)5 was “instructed ‘to make search wherever it shall please them in any place…within our kingdom of England…and to seize, take hold, burn…those books and things which are or shall be printed contrary to the form of any statute, act, or proclamation…’.”6 In exchange for performing this duty, the Stationers’ Company was granted a monopoly over the production of all printed material. However, the British government’s search and seizure power was not done expanding.

During the reign of James II, the Townshend Acts of 1767 were passed which “placed a tax on common products imported into the American Colonies, such as lead, paper, paint, glass, and tea.”7 It was not the tax that was most problematic, but rather the fact that the Act legalized writs of assistance – generally issued and open-ended search warrants that required all parties to help in its execution8. The writs of assistance, which only expired six months after the death of the issuing king, were issued to government officials and allowed them to search anyone or anywhere they pleased. Ergo, the desire and need for limits on search and seizures was born.

On October 26, 1774 “the Continental Congress petitioned the King…for a redress of grievances, and among those listed was the abuse of the search power: ‘The officers of the customs are empowered to break open and enter houses, without the authority of any civil magistrate, founded on legal information.'”9 This grievance is similarly alluded to in the Declaration of Independence, “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”1011

Around the same time that the Declaration of Independence was adopted, Virginia was already moving to ensure that unencumbered search and seizure powers would never be brought forth again. Article X of Virginia’s Declaration of Rights:

That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted12.

Virginia’s Article was the first “provision in any American constitution” that sought to limit the power of searches and seizures13. However, unscrupulous officials could easily take advantage of several gaping holes in Virginia’s Article, primarily, the clause that states warrants “ought not to be granted” but does not outright prohibit them14. In short, Virginia’s search and seizure Article is merely a suggestion.

Virginia diligently campaigned for inclusion of a similar article in the United States Constitution; however, Virginia eventually ratified the United States Constitution without such an article and instead pushed to have an even broader provision included in the Bill of Rights15.

Continued tomorrow with Interpretation of the Fourth Amendment


  1. Constitution of the United States, Fourth Amendment. 

  2. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5. p. 774 

  3. Tudor dynasty. Wikipedia, the free encyclopedia. [Online] Wikimedia Foundation, Inc., April 14, 2008. [Cited: April 17, 2008.] http://en.wikipedia.org/wiki/Tudor_dynasty

  4. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5. p. 774 

  5. Worshipful Company of Stationers and Newspaper Makers. Wikipedia, the free encyclopedia. [Online] Wikimedia Foundation, Inc., March 39, 2008. [Cited: April 2008, 17.] http://en.wikipedia.org/wiki/Worshipful_Company_of_Stationers_and_Newspaper_Makers

  6. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5. p. 774 

  7. Townshend Acts. Wikipedia, the free encyclopedia. [Online] Wikimedia Foundation, Inc., April 17, 2008. [Cited: April 17, 2008.] http://en.wikipedia.org/wiki/Townshend_Act

  8. Writ of Assistance. Wikipedia, the free encyclopedia. [Online] Wikimedia Foundation, Inc., April 10, 2008. [Cited: April 17, 2008.] http://en.wikipedia.org/wiki/Writs_of_Assistance

  9. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5. p. 778 

  10. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5. p. 778 

  11. United States Declaration of Independence. 

  12. Virginia Declaration of Rights. Wikipedia, the free encyclopedia. [Online] Wikimedia Foundation, Inc., April 2, 2008. [Cited: April 17, 2008.] http://en.wikipedia.org/wiki/Virginia_Declaration_of_Rights

  13. Levy, Leonard W. Seasoned Judgments: The American Constitution, Rights, and History. New
    Brunswick : Transaction Publishers, 1995. 1-56000-170-4. p. 162 

  14. Levy, Leonard W. Seasoned Judgments: The American Constitution, Rights, and History. New Brunswick : Transaction Publishers, 1995. 1-56000-170-4. p. 161 

  15. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5. p. 778 

A Man’s House is His Castle: Introduction

I’ve spent the last several weeks working a paper for my Constitutional Law and Civil Rights class. I now present you with the fruits of my labor, presented as multipart serial. Today will be the title page, abstract, introduction, and works cited.

A Man’s House is His Castle
A Discussion on the Fourth Amendment and National Security
by Andrew Ferguson
4/21/2008

Abstract: The Fourth Amendment is designed to protect the people of the United States “against unreasonable searches and seizures.”1 However, the degree of that protection is a careful balance of the people’s right and the Government’s protection, especially when national security is involved.

Introduction
The Fourth Amendment is designed to protect the people of the United States “against unreasonable searches and seizures.”2 However, the degree of that protection is a careful balance of the people’s right and the Government’s protection.

Recent global developments, specifically the terrorist attacks of September 11, 2001, and the ensuing “global war on terrorism,” have caused the Government to exercise power over the Fourth Amendment. However, doing so may be unconstitutional. This poses the question: Should the right of unreasonable searches and seizures be limited to protect national security?

The author will show that despite the Court’s varied interpretations over the years, national security is not a compelling enough interest to overturn the people’s right granted to them in the Fourth Amendment.

Also, note that this paper will deliberately not deal with the exclusionary rule or the concept surrounding “fruit of the poisonous tree.” This paper is strictly limited to warrants and the Fourth Amendment. Any instances of illegally performed searches and seizures fall outside the purview of this paper.

Works Cited
1. Constitution of the United States, Fourth Amendment.
2. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5.
3. Tudor dynasty. Wikipedia, the free encyclopedia. [Online] Wikimedia Foundation, Inc., April 14, 2008. [Cited: April 17, 2008.] http://en.wikipedia.org/wiki/Tudor_dynasty.
4. Worshipful Company of Stationers and Newspaper Makers. Wikipedia, the free encyclopedia. [Online] Wikimedia Foundation, Inc., March 39, 2008. [Cited: April 2008, 17.] http://en.wikipedia.org/wiki/Worshipful_Company_of_Stationers_and_Newspaper_Makers.
5. Townshend Acts. Wikipedia, the free encyclopedia. [Online] Wikimedia Foundation, Inc., April 17, 2008. [Cited: April 17, 2008.] http://en.wikipedia.org/wiki/Townshend_Act.
6. Writ of Assistance. Wikipedia, the free encyclopedia. [Online] Wikimedia Foundation, Inc., April 10, 2008. [Cited: April 17, 2008.] http://en.wikipedia.org/wiki/Writs_of_Assistance.
7. United States Declaration of Independence.
8. Virginia Declaration of Rights. Wikipedia, the free encyclopedia. [Online] Wikimedia Foundation, Inc., April 2, 2008. [Cited: April 17, 2008.] http://en.wikipedia.org/wiki/Virginia_Declaration_of_Rights.
9. Levy, Leonard W. Seasoned Judgments: The American Constitution, Rights, and History. New Brunswick : Transaction Publishers, 1995. 1-56000-170-4.
10. Davies, Thomas Y. Recovering the Original Fourth Amendment. Michigan Law Review. 1999, Vol. 98, 547.
11. Olmstead v. United States. 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, Washington, D.C. : Supreme Court of the United States, 1928.
12. Katz v. United States. 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, Washington, D.C. : Supreme Court of the United States, 1967.
13. Kyllo v. United States. 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94, Washington, D.C. : Supreme Court of the United States, 2001.
14. Schenck v. United States. 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470, Washington, D.C. : Supreme Court of the United States, 1919.
15. United States v. Verdugo-Urquidez. 494 U.S. 259, Washington, D.C. : Supreme Court of the United States, 1990.
16. Yoo, C. John. Memorandum for William J. Haynes II, General Counsel of the Department of Defense. Department of Justice, United States. 2003. Memorandum.
17. Brandenburg v. Ohio. 395 U.S. 444, Washington, D.C. : Supreme Court of the United States, 1969.
18. United States v. U.S. District Court. 407 U.S. 297, Washington, D.C. : Supreme Court of the United States, 1972.
19. 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-SivATjok-utYBdh9wDwD8VQ5HFO4.

Continued tomorrow with Historic Development


  1. Constitution of the United States, Fourth Amendment. 

  2. Constitution of the United States, Fourth Amendment.