Easter, Marriage, and Other Things

NB: I really appreciate the discussion that has occurred over the last week. Instead of addressing each reply individually, I am trying to collectively address some of larger issues I saw as I read through all the comments.

I was discussing with some friends that the Supreme Court taking up constitutionality of same-sex marriage this last week has been challenging because it has been a distraction from Holy Week and Easter. However, my opinion is that there may be no better time than now to proclaim what Christ died for on the cross, all of our sins.

Intent of Marriage

One of the more challenging issues, in my opinion, is addressing what God’s intent of marriage is versus what actually happens in the world (i.e. “the social construct”). As the LCMS resolution affirms and which I affirm as well, “marriage as the lifelong union of one man and one woman (Gen. 2:2–24; Matt. 19:5–6)”. I think it is important to note that in this affirmation there is no mention of being Christian to be married. Just a man and a woman, together, forever.

If we look around though, that is unfortunately not what happens most of the time. For example, the world is filled with divorce, and indeed even people who identify themselves as Christians divorce at disturbingly high rates. Society may be okay with that, but I am not. I don’t condone it, I’m not in favor of it.

From www.lcms.org:

Divorce, destructive of what God has joined together, is always contrary to God’s intention for marriage … A person who divorces his/her spouse for any other cause than sexual unfaithfulness and marries another commits adultery. Anyone who marries a person so discarding his or her spouse commits adultery.1

The Bible is also rife with examples of people engaging in unholy things, including polygamy, but that does not make that okay:

From witness.lcms.org:

Polygamy certainly was not part of God’s original design. After the Fall it was an innovation by Lamech (Gen. 4:19), a descendant of Cain, the first fratricide (Gen. 4:8). Lamech, the first bigamist, bragged to his wives about his prowess at murder (Gen. 4:23–24). The Old Testament recognized the existence of polygyny among some of God’s chosen people. It could be the result of a lack of faith that God would fulfill His promises (Abraham and Hagar in Genesis 16). In the case of Jacob (Genesis 29–30), it was the result of trickery and a human solution for infertility. Although it caused family conflicts, God used it to multiply His people, including the family line of the promised Messiah. However, no Old Testament passage requires it or commends it as God-pleasing. Many passages advocate monogamy as the normal and ideal form of marriage.

(emphasis added)

I’m not sure if same-sex marriage is a greater or lessor sin than adultery; at the very least they are both sinful and I’m not okay with either. I don’t condone them, I’m not in favor of them.

The Law

Reading and understanding Old Testament books is a tricky thing because they have to be read with context. It’s inappropriate to cherry pick a passage and use it to justify anything without understanding it. For example, Leviticus 19:28 says, “You shall not make any cuts on your body for the dead or tattoo yourselves: I am the Lord.”

Prima facie, it appears that Christians should not get a tattoo.

From www.worldvieweverlasting.com:

Leviticus is wrongly used to argue many things. …[T]he prohibition of tattoos as well as other prohibitions and admonitions in Leviticus were due to cultic practices. The whole point of the Levitical law was to make a way for the people of Israel to be set apart from the nations and made holy so that Yahweh might make his dwelling among them. In order to set them apart, certain laws were given to keep them from falling prey to the pagan religions of their neighbors. Also in Leviticus we see the sacrificial system established via the Tabernacle. All of this was provided for the purpose of cleansing Israel of their iniquity and making them holy before God that He could dwell with them. But today, Jesus has come! And in his coming into our flesh, and taking on our sin, and dying on the Cross, he has fulfilled the law in full. Therefore, it is no longer adherence to Levitical law that sets God’s people apart. It is no longer the blood of tabernacle/temple sacrifices that makes them Holy. We are set apart and made holy before God by the blood of Jesus poured out for us on the cross. We are set apart in Him.

It’s at this point where I get in a bit in over my head since I don’t know the specific contexts for the Old Testament, so I’m relegated to using examples from sources that I trust. Regardless, I think we can get hung up too much on the law.

From www.worldvieweverlasting.com:

Indeed, it is precisely our inability to keep the law for which Christ died. He kept the law perfectly for us and he died for us thus taking the penalty for breaking the law upon himself. However, it is true that the law still does exist. Jesus Christ said, “Do not think that I have come to abolish the law or the prophets; I have not come to abolish them but to fulfill them.” Christ’s death did not take the law away; it satisfied it for us. Now for us in Christ, the law serves a number of purposes; chief among them being to show us our sinfulness that we would turn to God in repentance and receive forgiveness in Christ. The law also serves to curb us from sin and to guide us in living the Christian life. We should indeed strive to keep the law, for in so doing we generally live better lives and are better able to love and serve others. However, the law cannot save us; it only condemns us. Our salvation is found only in the Gospel which delivers Christ crucified for our sins.

Biblical Infallibility

From www.lcms.org:

The teaching of Luther and the reformers can be summarized in three phrases: Grace alone, Faith alone, Scripture alone.

Grace Alone (Sola Gratia):
God loves the people of the world, even though they are sinful, rebel against Him and do not deserve His love. He sent Jesus, His Son, to love the unlovable and save the ungodly.

Faith Alone (Sola Fide):
By His suffering and death as the substitute for all people of all time, Jesus purchased and won forgiveness and eternal life for them. Those who hear this Good News and believe it have the eternal life that it offers. God creates faith in Christ and gives people forgiveness through Him.

Scripture Alone (Sola Scriptura):
The Bible is God’s inerrant and infallible Word, in which He reveals His Law and His Gospel of salvation in Jesus Christ. It is the sole rule and norm for Christian doctrine.”

The Lutheran Church expanded on this in “The Inspiration of Scripture, A Report of the Commission on Theology and Church Relations of the Lutheran Church-Missouri Synod, March 1975″:

From www.lcms.org:

Even though there are differences and variety in the Sacred Writings which sometimes perplex us because we can find no harmonization for them that satisfies human reason, faith confesses the Bible to be the inerrant Word of God. Since the inerrancy of the Scriptures is a matter of faith, it is by definition a doctrine which is believed solely on the basis of the witness of the Scriptures concerning themselves and not on the basis of empirical verification.

  1. This is nor to say that in no case is the inerrancy of the Scriptures demonstrable by extra-Biblical evidence. The Scriptures, for instance, report historical events through which God worked out His saving purposes. Since these events occurred on the plane of human history, they are to that extent susceptible of investigation and even of verification by historical research. The Christian faith does not relegate the acts of God for man’s redemption to the arena of super-history so as to detach them from the realm of reality open to examination by the historian. While the Biblical witness to what God was doing in history is not verifiable or unverifiable by the techniques of historical research, Christians gladly submit the Scriptures to investigation with the full confidence that whenever the extra-Biblical evidence is correctly read and understood it will vindicate the complete reliability of the Biblical records relative to that dimension of the events which is subject to human examination.
  2. This is to say that faith in the inerrancy of the Scriptures does not rely on corroboration of Biblical truth by empirical evidence — faith holds to the inerrancy of the Scriptures even when there is no extra-Biblical substantiation and even when other sources appear to be in conflict with the Scriptures. Luther explained that he used writers of history in such a way that while he did not disregard them, he did not permit them to induce him to contradict the Scriptures. In the Scriptures God speaks. Historians make mistakes.2
    Faith affirms that God could speak His Word of Truth even through men whose knowledge of nature and history apart from direct revelation was partial and limited. Faith affirms that even in the presence of difficulties which human reason may regard as deficiencies, we have, nevertheless, in the Scriptures God’s totally reliable Word which cannot mislead and deceive us.
    “None of the natural limitations which belong to the human mind even when under the inspiration of the Holy Ghost can impair the authority of the Bible or the inerrancy of the Word of God; for Holy Scripture is the book of divine truth which
    transcends everything called truth by the wise men of this world (1 Cor. 1:17 ff., 27; Col. 2:8) and is therefore able to make us ‘wise unto salvation’ (2 Tim. 3:15).”3
    Inspiration was not mechanical dictation but rather an operation of the Holy Spirit that allowed a function to each author’s individuality in writing the Scriptures. Therefore the predication of inerrancy to the Bible does not imply that when the New Testament reproduces and applies Old Testament statements this must always occur by means of verbatim quotations, or that there must be verbal correspondence between parallel accounts of the same event wherever they are found either in the Old or the New Testament.
    Each writer inerrantly imparted God’s truth as the Holy Spirit moved him to do so in his own way, from his own perspective, and for his own purposes. Far from impugning the veracity of the Scriptures this multidimensional application of whatsoever was spoken aforetime and this multidimensional view of events reported serves to impart more fully the truth which God reveals for the edification of His people. The Biblical conception of inspiration does not see these differences as errors, but as inspired variety which we should recognize with thanksgiving and study prayerfully imploring the Spirit’s help so that we may receive all the instruction He wishes to imparts.

Love is a Verb

In my opinion, love is not just what we say, but what we do as well. I can say “I love you” to Rachel as much as I want — and it is important to do so. Yet if my actions do not reflect what I say…have I really loved her?

1 Corinthians 13:4-7:”4 Love is patient and kind; love does not envy or boast; it is not arrogant 5 or rude. It does not insist on its own way; it is not irritable or resentful;[b] 6 it does not rejoice at wrongdoing, but rejoices with the truth. 7 Love bears all things, believes all things, hopes all things, endures all things.”

I would argue that as a Christian, I am not loving if I don’t say anything about homosexuality (or adultery, murder, etc). Since I believe that those who do not follow Christ are condemned, I should speak out when I see wrong doings, not because I am judging, but because I care and I do not want anyone to be condemned to Hell.

And honestly, when it comes down to it, we are all sinners.

I rebel against Him, you rebel against him, Pastor rebels against him. None of us deserve His love. But He sent Jesus, His Son, to love the unlovable and save the ungodly. That’s you, me, and everyone else on this planet.

Secular Legal Implications

Where the United States is now, legally speaking, with regard to marriage is what I would call an “undefined state” in engineering, and a state that should not have been allowed to occur but for some reason has.

Legally speaking, I would suspect all marriage laws enacted by the state that provide benefits run afoul of Section 1 of the 14th Amendment to the Constitution of the United States:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (emphasis added)

However, this argument against state laws providing equal protection immediately breaks down at the Federal level (i.e. Defense of Marriage Act (DOMA)) since it only applies to the states, and not the Federal government. The question of the validity of DOMA will be likely one of federalism. I am not a huge fan of federalism to begin with, but I’m honestly not sure on what legal grounds DOMA could be overturned.

My opinion is the best thing to do would be to remove the concept of marriage from the law completely. No tax benefits, no legal entitlements, nothing. I think one could make a good case that such benefits (when the combined collective benefits outweigh the individual component of such benefits) for any two people, regardless of sexual orientation, would also be a violation of the equal protection clause for those that are single. I won’t hide the fact this also plays into my libertarian ideals, but I think that this is also a legally cohesive stance.

Render unto Caesar

Let’s get one thing clear, in the United States Constitution: there is no separation of church and state.

There is the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

From a legal perspective, I do not read this to mean my theological views cannot or should not inform my political decisions (i.e. how I voting).

However, there is no denying that a “culture war” does exist, as address in Render unto Caesar…and unto God: A Lutheran View of Church and State, A Report of the Commission on Theology and Church Relations of The Lutheran Church–Missouri Synod, September 1995:

From www.lcms.org:

The evidence of serious problems in the relationship between Americans and their government is all around us. In fact, sociologist James Davison Hunter has argued that these problems reflect an underlying “culture war”:

America is in the midst of a culture war that has had and will continue to have reverberations not only within public policy but within the lives of ordinary Americans everywhere.
I define cultural conflict very simply as political and social hostility rooted in different systems of moral understanding. The end to which these hostilities tend is the domination of one cultural and moral ethos over all others. Let it be clear, the principles and ideals that mark these competing systems of moral understanding are by no means trifling but always have a character of ultimacy to them. They are not merely attitudes that can change on a whim but basic commitments and beliefs that provide a source of identity, purpose, and togetherness for the people who live by them. It is for precisely this reason that political action rooted in these principles and ideals tends to be so passionate.4

What is new about this, argues Hunter, is that in the past American politics took place within a generally biblical framework while today that framework is selfconsciously secular. As a result, according to Hunter, “the older agreements have unraveled. The divisions of political consequence today are … the result of differing worldviews.” What is at stake, he concludes, are “our most fundamental and cherished assumptions about how to order our lives–our own lives and our lives together in this society. Our most fundamental ideas about who we are as Americans are now at odds.” (James Davison Hunter, Culture Wars: The Struggle to Define America (New York: Basic Books, 1991), 34; 42.))5

What The Bible Says

The problems of church and state are relatively recent. Through most of recorded history they were problems of church and empire or kingdom. In contrast to modern states, where power is quite abstract and bureaucratic, the governments of ancient empires were personal and often authoritarian. The emperor (such as the Roman Caesar) or king was in direct personal control of the government and, as the absolute authority in many societies, the royal word was law. Indeed, the kings and queens frequently exercised such tremendous powers of life and death that they often were considered gods.6
It is important to begin our study, therefore, by observing that the Bible makes a fundamental distinction between divine and human authority. While from the beginning humans have wanted to be like God and to play god, the Bible persistently proclaims only one God who is sovereign over everything and everyone:
Remember this and consider, recall it to mind, you transgressors … for I am God, and there is no other; I am God, and there is none like me, declaring the end from the beginning and from ancient times things not done, saying, “My counsel shall stand, and I will accomplish all my purpose.” (Is. 46:8–10)

For although there may be so-called gods in heaven or on earth–as indeed there are many “gods” and many “lords”–yet for us there is one God, the Father, from whom are all things and for whom we exist, and one Lord, Jesus Christ, through whom are all things and through whom we exist. (1 Cor. 8:5–6)
Above the empires and states of history stands one everlasting divine authority to whom all are accountable–even kings and queens, presidents and dictators. And so, while kings and empires pass from the scene, the church continues to proclaim God’s divine authority. As Arthur Cleveland Coxe once penned it:
O where are kings and empires now Of old that went and came?
But, Lord, thy Church is praying yet, A thousand years the same.7

Is There Really a Lutheran Perspective?

The Lutheran perspective is grounded finally in that radical distinction between Law and Gospel that both establishes and affirms the distinction between church and state. While there is unity in the Lutheran view — since God rules in both kingdoms, both church and state — it is also true that this unity is and always will be visible only to the eyes of faith. Christians cannot, and must not attempt to, force this world to become what it can never be, since force will only create the appearance of Christ’s kingdom and never the substance.
The Lutheran model is, admittedly, complex. Thus, even Lutherans have often succumbed to the simplicity of other models–models that resolve the tension either by pursuing a more this-worldly kingdom of Christ or by ignoring this world’s problems. Yet, the difficulty with which Lutherans hold to their perspective does not invalidate it. Indeed, the Scripture provides ample support for the contention that authentic Christianity is a hard teaching, difficult to bear (John 6:60). The issue is not whether Lutheran teaching is easy to understand; the issue is whether it properly reflects what the Bible says.
The Lutheran perspective is also, admittedly, difficult to apply. Even when agreeing, for instance, that the church does not have a Gospel-based responsibility to promote the transformation of the civil realm, Lutheran theologians and church bodies have disagreed about whether the corporate church (and not just the individual Christian) has a Law-based duty to teach the state ethical principles. Theologians and church bodies have also disagreed about the most prudent and effective means by which the church might actually teach those ethical principles in a pluralistic and democratic society. The paradoxical tensions of the Lutheran perspective, therefore, make its practical application in diverse cultural and political systems a challenging task.

I will admit I have not had the chance to read all 96 pages of the report, however I am in the middle of it. The take away I have as of now and subject to change is that how my faith informs my political actions will never be a simple matter that can be distilled down to a list of policies that should or should not have Biblical influences.

Coda

Whether I’ve actually been able to satisfactorily address the prominent and important issues will remain to be seen (in the comments). Part of the problem of social media, including blogging, is the lack of ability to gauge in real-time if I’m addressing the issue appropriately or not.

Regardless of my abilities to communicate, the important fact still remains:

From witness.lcms.org:

The Gospel declares that Jesus Christ is the atoning sacrifice for the sins of the world8, and that Christ, who knew no sin, was made to be our sin so that in Him we might become the righteousness of God9. It is the church’s proper evangelical work to proclaim the reconciliation of the sinner to God in the death of Jesus Christ10 in a spirit of compassion and humility, recognizing that all have sinned and fall short of the glory of God, and are justified freely by His grace, through the redemption that came by Christ Jesus11.

And that is what Easter is about.


  1. Divorce and Remarriage: An Exegetical Study, A Report of the Commission on Theology and Church Relations of the Lutheran Church-Missouri Synod, November 1987 

  2. St. Louis Edition, XIV, 491. 

  3. Theses of agreement, “Theses on Scripture and Inspiration,” adopted by the conventions of the merging churches of the Evangelical Lutheran Church of Australia in 1956 and 1959. The “Theses on Scripture and Inspiration” were reprinted and distributed by the Commission on Theology and Church Relations in “Statements From The Lutheran Church of Australia,” 1973, pp. 6-7. 

  4. James Davison Hunter, Culture Wars: The Struggle to Define America (New York: Basic Books, 1991), 34; 42. 

  5. Richard John Neuhaus agrees: “Our present moment and the decades ahead, it is reasonable to think, may best be described as a Kulturkampf over the defining of the American experiment.” “From Providence to Privacy: Religion and the Redefinition of America,” in Unsecular America, ed. Richard John Neuhaus (Grand Rapids: Eerdmans, 1986), 60. 

  6. See, e.g., Ethelbert Stauffer, Christ and the Caesars, trans. K. and R. Gregor Smith (London: SCM Press LTD, 1955); Edward Gibbon, The Decline and Fall of the Roman Empire (New York: The Modern Library, n.d.), 1:61. 

  7. In Excelsis: Hymns with Tunes for Christian Worship (New York: The Century Co., 1897), hymn 637:1. 

  8. 1 John 2:2 

  9. 2 Cor. 5:21 

  10. 2 Cor. 5:18–19 

  11. Rom. 3:23–24 

Marriage As The Lifelong Union Of One Man And One Woman

The events up to now:

red_equal_sign There has been a large contingent of people whom I am friends with on Facebook who have changed their profile picture to an image of an equals sign. Based on the context of my friend’s status updates and in light of the Supreme Court hearing oral arguments this week regarding same-sex marriage, I surmised that displaying such an image implies such friends endorsement of same-sex marriage.

lcms_logo Partly because I was feeling a bit antagonistic1, but mostly because it’s what I believe, and I’ve found it important to speak up for what I believe. I changed my profile to an image of the Lutheran Church – Missouri Synod logo…a cross. I didn’t pick it because of the color, I literally just did a Google Image search for LCMS and picked the first one. It was later pointed out that I had used the older version of the LCMS logo, the new one is nice shade of blue. I used the LCMS logo because I am confirmed in the LCMS.

Now what:

Several people have left some very pointed questions and comments, and at least one person has unfriended me. To be honest, it does cause a bit of a gut wrench because I’m selfish want to be thought of as a “good guy” and if people are unfriending me…well, it’s easy to for me not to feel like a “good guy” if I’m going against the tide. But I am also steadfast in what I believe, which in turn gives me peace in my actions.

You will just have to believe me when I say that I have talked with many people and pastors over many years about the issue of same-sex marriage, always seeking to understand more. Even still I seek to understand more so that I can get to the point of being able to teach effectively.

The challenge I have in attempting to answer questions surrounding same-sex marriage is that A) these are not easy questions to answer; and B) I am not a teacher of theology, I am an engineer2. I have internalized many elements of my belief system (just as I internalize many elements of my engineering knowledge), but I have not yet gotten to the point where I can adequately explain them. Some may point to this as an “Aha!” and claim that perhaps by faith is flawed. I disagree.

At this point in time, my opinion is that my inability to effectively teach, combined with arguments having generally become too polarizing, cause this to be an issue not worth arguing about. The arguments quickly devolve into shouting matches and escalate in intensity with no real or meaning outcome. So, I typically just make my stance clear and leave it at that.

However, there have been some requests for clarification on Facebook, and I feel like that is a worthwhile endeavor. I’m not going to address every issue point by point, but give a general summary of where I stand:

I believe “on the basis of Scripture, marriage [is] the lifelong union of one man and one woman (Gen. 2:2–24; Matt. 19:5–6).” That is the relevant-to-this-conversation conclusion from the 2004 LCMS Convention Proceedings, RESOLUTION 3-05A, “To Affirm Marriage as Union of One Man and One Woman”, which I also agree with:
From www.lcms.org:

WHEREAS, The LCMS, in convention, in 1973, stated in Res. 2-04 (Proceedings, p. 110): “That the Synod recognize homophile behavior as intrinsically sinful” (Lev. 18:22; 20:13; Rom.1:24– 27); and
WHEREAS, The Gospel declares that Jesus Christ is the atoning sacrifice for the sins of the world (1 John 2:2) and that Christ, who knew no sin, was made to be our sin so that in Him we might become the righteousness of God (2 Cor. 5:21); and
WHEREAS, The church’s proper evangelical work is to proclaim the reconciliation of the sinner to God in the death of Jesus Christ (2 Cor. 5:18–19); and
WHEREAS, The Synod, in convention (2001 Res. 2-08A), encouraged its congregations “to minister to homosexuals and their families in a spirit of compassion and humility, recognizing that all have sinned and fall short of the glory of God, and are justified freely by His grace, through the redemption that came by Christ Jesus (Rom. 3:23–24)”; and
WHEREAS, Many in American society are demanding legal recognition of same-sex unions as “marriages” by appeals to “equality under the law” (e.g., the Supreme Court of the State of Massachusetts, Feb. 4, 2004); and
WHEREAS, God gave marriage as a picture of the relationship between Christ and His bride the Church (Eph. 5:32); and
WHEREAS, Homosexual behavior is prohibited in the Old and New Testaments (Lev. 18:22, 24; 20:13; 1 Cor. 6:9–20; 1 Tim. 1:10) as contrary to the Creator’s design (Rom. 1:26–27); and WHEREAS, For our Synod to be silent, especially in the present context, could be viewed as acceptance of the homosexual lifestyle; therefore be it
Resolved, That the Synod urge its members to give a public witness from Scripture against the social acceptance and legal recognition of homosexual “marriage”; and be it further
Resolved, That in ministering to homosexuals, “A Plan for Ministry to Homosexuals and Their Families,” prepared by the President’s Task Force, be commended as a resource for study and a guide for pastoral care; and be it further
Resolved, That the members of the Synod deal with sexual sins with the same love and concern as all other sins, calling for repentance and offering forgiveness in the Good News of Jesus Christ when there is repentance; and be it further
Resolved, That husbands and wives give thanks to God for the blessings of marriage, lead a chaste and decent life, and each love and honor one’s spouse; and be it finally
Resolved, That the LCMS, in convention, affirm, on the basis of Scripture, marriage as the lifelong union of one man and one woman (Gen. 2:2–24; Matt. 19:5–6).

To be perfectly clear about this, mostly because I feel like this point is missed and then people end up calling me a bigot: I do not hate, have contempt for, or am intolerant of people who identify as homosexual. If you catch me doing this, call me out on it.

As Tad pointed out, “There’s a difference between affirming one’s behavior and affirming one’s dignity as a human being … A good and reasonable person can disapprove strongly of what another does and still strongly affirm the person as a human being.”

I absolutely agree with and do affirm one’s dignity as a human being.

I do not affirm homosexual behavior.

I do not believe this is an issue of equality, or “loving your neighbor as yourself” as some have put it. Matthew 22:35-39 (NIV) is very clear:
From www.biblegateway.com:

35 One of them [a Pharisee], an expert in the law, tested him with this question: 36 “Teacher, which is the greatest commandment in the Law?”

37 Jesus replied: “‘Love the Lord your God with all your heart and with all your soul and with all your mind.’3 38 This is the first and greatest commandment. 39 And the second is like it: ‘Love your neighbor as yourself.’4

Love the Lord your God first. Then your neighbor.

I will say I think there are some other interesting constitutional arguments to be made, both for and against, if I was to ignore the theological implications. Maybe I’ll write about them another day.

—-
Edit: I added the original thread here to help keep the context. I have obfuscated the names because it provides little relevance and the comments were not originally posted here.

The Thread that Started it All:

O.Q.: Is this to “boycott” the ridiculous red equal sign going around?! …because it should be…
March 26, 2013 at 2:25pm (Like: 1)

E.S.: I’m so changing mine. Genius!
March 26, 2013 at 2:31pm

Andrew Ferguson: @O.Q. yes it is.
March 26, 2013 at 3:50pm (Like: 2)

O.Q.: You are a good man. lol
March 26, 2013 at 4:28pm

C.F.: Really? Why is it ridiculous? I think it’s pretty great.
March 26, 2013 at 5:00pm (Like: 1)

G.F.: Did you pick this particular pic because it’s red or because it’s the MO Synod emblem?
March 26, 2013 at 5:01pm

Y.Z.: Andrew, you’re no stranger to posting your opinions on facebook, and that’s a good thing; it encourages hearty debate on important issues. Frankly, I probably post more than my fair share of political opinions.

But the thing is, when you make a political post on facebook, what you’re really doing is tacitly agreeing to engage with anyone who might want to discuss/challenge your opinion. This is a standard I try to live by when posting, because otherwise there’s no point in broadcasting your opinion to the public.

Why do I bring this up? During the November elections, you posted a link to your blog in which you argue against approving Referendum 74. I applauded you for making your opinion known and inviting debate on the issue. If you remember, I posted a challenge to your argument. I wish I could reproduce the argument I made, but I can’t find the original post or my response anymore. However, I remember that the only response I got from you is that you had to put my argument through your “mental matrix” or something of that sort. That was the end of the debate.

Now here we are, I with a marriage equality profile photo, and you with a rebuttal to the argument implicit in my photo. Once again, there’s nothing wrong with making political posts on facebook, but you should realize, when you make an argument, but don’t address its critiques, and then continue to make the same argument, the integrity of your argument invariably suffers.

Maybe this doesn’t matter to you; I have my argument and you have yours. What I do know is that I presented you with an argument that you were either unable, unwilling or simply forgot to respond to. If the first is the case, I can respect that; maybe we have value systems which are simply incompatible, in which case we can leave it at that. If the second is the case, I would suggest you think twice before posting political opinions to facebook if you don’t care to engage with critics. If the third is the case, I’ll remind you:

If your conception of marriage is a man and a woman united in matrimony within Christ, as stated in the New Testament, it would seem that, not even considering same sex marriage, a non-Christian heterosexual couple would be unable to get married. If this is an outcome you are comfortable with, well, I think you’d be hard pressed to justify how such a conception fits within a liberal democracy. If this not an outcome you are comfortable with, I urge you to think whether there is any better solution than to allow you to have your definition and religious meaning of marriage, non-Christians to have their definition and religious meaning of marriage (including same sex marriages), and accommodating these diverse viewpoints by legislating simply that marriage is the legal union between two people.

One of these days, I may get married. What being married means to me might not be what it means to you, but I certainly hope my future marriage will be valid in your eyes despite the fact that I don’t subscribe to the same religion as you. I can assure you, this will be my opinion when you marry.
March 26, 2013 at 5:06pm (Like: 6)

D.Z.: Yeah, I want to know the reason behind the choice of that cross in particular..
March 26, 2013 at 6:31pm

D.Z.: Also, I don’t think the New Testament teaches that marriages between non-Christians are invalid. The Bible presents marriage as a union between a man and a woman, regardless of their religion..people are married before the call of Abraham.
March 26, 2013 at 6:41pm (Like: 2)

O.O.:
Sorry but I don’t see what equality has to do as an attack on Christian values. Jesus said love thy neighbor without asterisks. I really have zero reason to be friend with bigots and those who will be on the wrong side of history. In 20 years when you look back I hope you and those sharig your virw realize how homophobic and bigoted this statement you made was. Until then I wish you the best and will be unfriending you. Once you reach the point where you realize God is love and Jesus’ teachings extend to EVERYONE feel free to send me a friend request.
March 26, 2013 at 6:56pm (Like: 1)

G.F.: I’m not a fan of the Missouri Synod, as they don’t support women in ministry. I’m using this cross instead.
March 26, 2013 at 6:57pm

D.Z.: This is why people have a hard time successfully marshalling Jesus to their side in arguments. Jesus was far more conservative with regard to what counts as ethical living than any “tolerant” person would want. He was also far more accepting of those who failed to live up to those standards than any hard-hearted conservative would want.
March 26, 2013 at 7:07pm (Like: 2)

E.S.: Division, everywhere!
March 26, 2013 at 7:25pm

E.S.: Quinn- I feel an important part of the acceptance statement was that the sinner recognized their depraved state, repented and turned to Christ, they didn’t flaunt their sin as if it was something to have pride in.
March 26, 2013 at 7:29pm (Like: 1)

G.F.: There’s a difference between affirming one’s behavior and affirming one’s dignity as a human being. Unfortunately, people on both sides have equated behavior with identity. It’s not so black and white. A good and reasonable person can disapprove strong…See More
March 26, 2013 at 7:29pm (Like: 4)

N.Z.: Personally, the pride I take in celebrating the LGBTQ community is in who God created them to be–not their sin. They don’t have to repent of who they are. They’re children of God, just like me.
March 26, 2013 at 8:15pm

E.S.: Annie, I feel your point is biblically uninformed as God (via his word=bible) states that homosexuality is a sin just like premarital sex is a sin, adultery is a sin, idolatry is a sin, etc, etc. Love the sinner, not the sin
March 26, 2013 at 8:23pm (Like: 1)

N.Z.: Rachel, we all choose to interpret the Bible in different ways. There are two basic camps on this issue–you and I fall into these two camps. I’ve chosen the one that fits with my understanding of God’s character and who God calls me to be in my church, my family, and my community. It’s a view that’s held by many, many, many churches and dedicated followers of Christ like myself.
March 26, 2013 at 8:28pm

Andrew Ferguson: @Everyone: Here are my thoughts: https://andrewferguson.net/…/marriage-as-the-lifelong…/
March 26, 2013 at 11:20pm (Like: 1)


  1. Nitpickers Corner: I’m not saying it’s right for me to be antagonistic, I’m just owning it 

  2. This is not an excuse, but rather a statement of fact 

  3. Deut. 6:5 

  4. Lev. 19:18 

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.