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Apr 17 2013

Washington’s Bizarre Argument on the 4th Amendment

When Ellis Washington gets going, reason goes right out the window. In his latest Worldnutdaily column he argues that the 4th Amendment is a crucial bulwark of freedom (which is true) and, simultaneously, that the states should be able to violate it at will without any constitutional limits.

While the Fourth Amendment is often mentioned in connection with the Fifth, Sixth and Eighth Amendments – the other primary provisions of the Bill of Rights regarding the criminal due process guarantees of citizens – and is historically connected to the adoption of the Third Amendment to abolish the hated practice of British officers using the general writ of assistance to enter private homes, conduct searches and seize personal property of the American colonists. Under the tyranny of King George III, the British officers wantonly abused the private property of the colonists and were not required to put forward a single, specific reason to justify a search warrant or give a good reason for the taking of people’s personal property. In the majority cases, the writ of assistance was used to confiscate items thought to have violated the severe British customs laws of the colonial era.

The twin foundations of the Fourth Amendment, the probable cause and warrant requirements, are an expressed historical indictment against the hatred the framers had for the Revolutionary-era practices of English rule.

Yes, the 4th Amendment is necessary to safeguard against tyranny! And then the very next sentences:

However, similar to the First Amendment, the guarantees of the Fourth Amendment did not pertain to state and local law enforcement practices until well after the ratification of the 14th Amendment (1868). It wasn’t until almost 80 years later when FDR’s handpicked progressive activists on the Supreme Court in Wolf v. Colorado (1949) arrogantly ignored 160 years of judicial precedent (stare decisis) and marginalized the original intent of the constitutional framers, ruling that the 14th Amendment due process clause made the Fourth Amendment binding on the states (e.g., “Incorporation Doctrine”), whereby evidence seized in violation of the probable cause or warrant requirements could not be used against a criminal suspect.

The Incorporation doctrine is the most reactionary of judicial legislation commonly invoked by modern judges, which has essentially turned the U.S. Constitution into an activist document of progressive, socialist change over the past 70 years since FDR’s “New Deal Court” systematically devastated Natural Law, the Rule of Law, fundamental constitutional jurisprudence and the original intent of the constitutional framers…

This is the warped argument of the anti-14th Amendment types like Washington. They praise the Bill of Rights as vital safeguards to our liberty and our privacy, then say that those safeguards should not prevent state and local governments from violating those rights. And to reference the original intent of the founding fathers on this one fails one of the most basic premises of Constitutional interpretation — amendments change things. It’s certainly true that the Bill of Rights did not initially apply to the states, but the 14th Amendment changed that.

Even from a conservative originalist standpoint, what matters is the intent and public meaning of the 14th Amendment that matters here. And the framers of that amendment made quite clear that the goal was to apply the Bill of Rights to the states. Rep. John Bingham, one of the primary authors of the 14th Amendment, said so clearly in a speech introducing it to the House:

Is the Bill of Rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced…’Mr. Speaker, it appears to me that this very provision of the bill of rights brought in question this day, upon this trial before the House, more than any other provision of the Constitution, makes that unity of government which constitutes us one people, by which and through which American nationality came to be, and only by the enforcement of which can American nationality continue to be…’What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day?…Gentlemen who oppose this amendment oppose the grant of power to enforce the bill of rights.

He went on to say:

“I have advocated here an amendment which would arm Congress with the power to compel obedience to the oath, and punish all violations by State officers of the bill of rights, but leaving those officers to discharge the duties enjoined upon them as citizens of the United States by that oath and by that Constitution.”

And further:

“That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment.”

Sen. Jacob Howard, also on the subcommittee that wrote the 14th Amendment, argued for its passage on the same grounds:

‘Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States any compel them at all times to respect these great fundamental guarantees.

This was the intent of the framers and it was the original public meaning — the way it was explained to the public at the time — as well. If one is to apply originalism consistently, there simply is no other conclusion than that the 14th Amendment applies the Bill of Rights to the states. But since Washington (and his hero, Clarence Thomas) don’t like that result, they jettison their originalism when it is inconvenient for them — while pretending not to, of course.

17 comments

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  1. 1
    arakasi

    I wonder if Washington will ever make the argument that the 2nd Amendment is only binding on the federal government so states can ban any firearms that they choose

  2. 2
    Modusoperandi

    “They praise the Bill of Rights as vital safeguards to our liberty and our privacy, then say that those safeguards should not prevent state and local governments from violating those rights.”

    They’re only rights when the tyrannical Feds come in with their Big Government noses and start sniffing around. State and local government has only your best interests at heart.*
     
    * Unless they think they can tell you how many bullets you can have in your gun or how many ounces in your soda.

  3. 3
    Dalillama, Schmott Guy

    Is there actually a reason, beyond authoritarian ancestor worship, to actually give half a fuck what the writers of the Constitution originally intended when we make our laws? Things that they absolutely intended: Black people to be slaves, women to be chattel, poor whites not to have the vote, etc. etc. etc. Given these facts, I’m really not anymore inclined to base jurisprudence on their opinions anymore than I am the people who wrote the bible.

  4. 4
    gshelley

    It’s kinf of amusing that these people (and I speak in general, though it wouldn’t surprise me if this applies directly to Washington) will state with one breath that the rights in the Bill of rights are innate and given by God, and the constitution is just emphasizing that the government can’t take them away, and with the next breath, claim that the states aren’t bound by them and they aren’t innate rights on a state level.

  5. 5
    Phillip IV

    If one is to apply originalism consistently, there simply is no other conclusion than that the 14th Amendment applies the Bill of Rights to the states.

    Has there actually ever been a SCOTUS Justice who applied originalism consistently, or has it always been just a convenient excuse for conservatism or misanthropy?

  6. 6
    Ace of Sevens

    Ron Paul, cotnrary to what so many of hsi fans assume, is one of these anti-incorporation types.

  7. 7
    pacal

    It is my understanding that one of the reasons for the 14th amendment was precisely because previous court decisions, including at least 1 SCOTUS, had declared that the 4th amendment did not apply top the states. I’ve always been puzzled by that sort of reasoning it just doesn’t make sense that the framers of the Bill of Rights would think that states weren’t covered by the 4th amendment.

    As for Clarence Thomas his reasoning in this matter is beneath contempt; but then he thinks states can establish their own state official religions.

  8. 8
    Dalillama, Schmott Guy

    Has there actually ever been a SCOTUS Justice who applied originalism consistently, or has it always been just a convenient excuse for conservatism or misanthropy?

    There’s a difference?

  9. 9
    Avo, also nigelTheBold

    It’s funny to me that these ultra-right-wing jerks totally distrust the federal government (for unstated reasons — it’s just not trustworthy!), but are totes OK with state government.

    It’s almost as if they think they can enforce their ideology on the states easier than the feds.

  10. 10
    naturalcynic

    @3:

    I’m really not anymore inclined to base jurisprudence on their opinions anymore than I am the people who wrote the bible.

    I think that the Founding Fathers had a lot more good ideas than Paul or the mythical Moses. The FF’s got mostly A’s and B’s and ultimately got a inc. There were a lot of failing grades in Leviticus.

  11. 11
    Dalillama, Schmott Guy

    Naturalcynic
    Then you grade much more leniently than I do. Genocidal slaveholders get very low grades from me no matter what they said about how people in their ingroup should be treated.

  12. 12
    Ben P

    Is there actually a reason, beyond authoritarian ancestor worship, to actually give half a fuck what the writers of the Constitution originally intended when we make our laws? Things that they absolutely intended: Black people to be slaves, women to be chattel, poor whites not to have the vote, etc. etc. etc. Given these facts, I’m really not anymore inclined to base jurisprudence on their opinions anymore than I am the people who wrote the bible.

    This gets almost metaphysical, but how exactly do you think we should interpret the constitution?

    We have a written document. Its purpose is to set out, at a fundamental level, the powers, duties and limits of government power, as well as set out how the government is to operate.

    The language is inherently ambiguous in many cases, but language still means something. The whole doctrine of law is about attempting to read that language in a systematic and logical way. So how do you go about doing it?

    There are basically four ways you can address this:
    1. Textual interpretation – using the literal meaning of the text to interpret the meaning of the law.
    2. Historical interpretation – looking to the intent of the author when the law was written
    3. Systematic interpretation – Considering the law’s context as a guide to its meaning
    4. Teleological interpretation – considering the law’s purpose as a guide to it’s meaning.

    I’m certainly not a stark originalist like Scalia or a stark textualist like Thomas, but I also can’t imagine why the intent of the authors would be completely excluded from consideration.

  13. 13
    Bulwark Exterminating

    Really? Who cares what the founding fathers thought?

    Arrogance and ignorance seem to be a common thread to destruction.

  14. 14
    Dalillama, Schmott Guy

    This gets almost metaphysical, but how exactly do you think we should interpret the constitution?

    I more or less don’t. It’s a deeply broken document that’s desperately in need of updating. A set of rules for a landowner’s assembly in a (relatively) geographically small preindustrial agrarian society are poorly suited to run a sprawling, highly networked industrial democracy with a vast and highly urbanized population.

  15. 15
    Ben P

    I more or less don’t. It’s a deeply broken document that’s desperately in need of updating. A set of rules for a landowner’s assembly in a (relatively) geographically small preindustrial agrarian society are poorly suited to run a sprawling, highly networked industrial democracy with a vast and highly urbanized population.

    No offense, but that’s about the most useless response ever. Amending the constitution substantially requires super majorities, and for good reason. States where the constitution is easily amended are far messier.

    And the other possibility is that we should just ignore it, and do what we feel like, which is not any better.

  16. 16
    Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    Thanks, Ed.

    I love it when you go off on Con Law. You’ve read a ton that I haven’t, and it’s fun to be exposed to those things.

  17. 17
    Dalillama, Schmott Guy

    nd the other possibility is that we should just ignore it, and do what we feel like, which is not any better.

    Actually that would be considerably better than the current plan of trying to shoehorn any sort of reasonable reform into a form that’s acceptable to the ghosts of centuries-dead slaveholders. Ideally we’d have a new Constitutional Convention, but since I don’t see that happening anytime soon, we’d be better off scrapping damn thing entirely. As for the amendment process, that’s one of the reasons that the Constitution is poorly suited to dealing with the modern world: the difference between ratification by 9 states and ratification by 33 states is significant, especially when a number of those states have influence far out of proportion to their population, and such states are easy targets for electoral corruption.

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