Congress and the 4th Amendment


Radley Balko has a story I’d never heard before that will make your eyes roll. In 1995, after Newt Gingrich led the Republican takeover of the House of Representatives, a bill was submitted to water down the exclusionary rule. Rep. Mel Watt (D-NC) submitted the following amendment to that bill:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

You may recognize that as the text of the 4th Amendment. The amendment was voted down by a 3-1 margin. Balko also has this depressing news:

There have been a number of public opinion polls over the years showing majorities of American opposed to the Bill of Rights when they aren’t told the language they’re being polled about is actually from the Bill of Rights. Probably the most famous example came in an April 1969 segment of 60 Minutes focusing on a poll commissioned by the show which asked respondents questions like should the government be able to ban peaceful demonstrations?, and should the government be allowed to censor news stories?, and should the government be able to try someone again after they’ve been acquitted were already prohibited by the Constitution?. In each case, a majority sided in opposition to the Bill of Rights.

Ten years later, a Gallup poll found that 80 percent of Americans couldn’t identify the freedoms protected by the First Amendment, and nearly 40 percent thought the press had too much freedom.

The great jurist Learned Hand famously said, “I often wonder whether we do not rest our hopes too much upon constitutions, upon law and upon courts. These are false hopes, believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no courts to save it.” And this is never more true when demagogues use fear to justify the loss of liberty.

Comments

  1. chilidog99 says

    Actually, I might have voted against the Mell Watt amendment simply because it was redundant (and a cheap political stunt)

  2. blf says

    My own story along these lines: When I was a student in a USAlienstan high school (a few years after that 1969 60 Minutes report), a friend of mine came up to me one day and said he had a class assignment to do a simple survey, and would I agree to answering a few questions?

    Sure.

    He hands me a short bit of text, which as I read it, it keeps ringing bells. The question at the end was something like “Do you agree or disagree with the above?”

    Pause in thought. Ah! Isn’t this part of the preamble to the DoI? (I now vaguely recall it was “Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.“)

    Um, yes.

    Why are you asking if I agree?

    Well, the teacher said most people won’t recognize it, and most people think calling for a revolution is wrong. (Or something like that, I don’t recall the precise explanation now.)

    And oh, you are the first person to recognize it.

  3. marcus says

    A similar survey was conducted regarding the First Amendment’s guarantee of freedom of speech. IIRC the upshot was that a big majority thought that their own personal freedom of expression should be protected but they had no qualms about the government limiting that right for other, obviously irresponsible (snark) people,

  4. Ben P says

    Attempts to roll back the exclusionary rule are old hat.

    It’s a difficult solution to a bad problem. This is one of may variations of the hard cases make bad law concept.

    The issue is that the 4th amendment says People have a right to be free from “Unreasonable searches and seizures” and “no warrants shall issue except upon probable cause.” There’s nothing regarding the exclusionary rule in the amendment, nor was there any truly clear exclusionary rule like the one we have today in English Common law. The idea that if the police violate your rights in gathering evidence, that evidence can’t be used against you is not really that old.

    There was no exclusionary rule in the US until 1897, when the SUpreme Court held that an “involuntary confession” was inadmissible in court. (In that case involuntary meant literally beaten out of someone). The current version of the exclusionary rule wasn’t adopted until 1914, and even then was not binding on the states. It was not until 1961 that the Supreme Court ruled that the exclusionary rule was incorporated as to the states by the 14th amendment. (Mapp v Ohio).

    It’s still very disputed, particularly in the “tough cases” where the illegal search is something most non-lawyers would deem a “technicality.”

    If you ask people the “hard case” i.e. “the police got a warrant, but it said only the house, not the shed, the police found the body and murder weapon in the shed, but a judge excluded the evidence because the search was illegal, is this right?” I fully expect that large majorities of people will say that they don’t believe this should be the law.

  5. says

    I managed to alienate a friend’s brother in about five minutes when he suggested that people in FL and other places shouldn’t be allowed to vote unless they can SPEAK and READ English. I pointed him in the general direction of the 14th amendment and he said that we din’t need no steenkeen ‘mendments, and cuz, JESUS, SHUT UP, that’s why! When I then asked him if we should get rid of ALL of the amendments he swallowed the hook and set it deeply in his own gutz.

  6. says

    “There was no exclusionary rule in the US until 1897, when the SUpreme Court held that an “involuntary confession” was inadmissible in court. (In that case involuntary meant literally beaten out of someone). ”

    If they weren’t GUILTY you wouldn’t be able to beat a confession out of them! We know that, bekuz of how good torture works!!

    Besides, your body (even if you’re a man) will shut down if you’re being illegitimately waterboarded just like a woman’s Phil&Oprah toobz will if she’s being illegitimately rapodized.

  7. slc1 says

    Re Ben P @ #4

    I quite realize that, at times, the law is an ass, but, absent the exclusionary rule, what is the enforcement of the 4th amendment relative to the requirement for a warrant to conduct a search? The likelihood of a prosecutor prosecuting the police for an illegal search is slim and none and slim is on the bus headed out of town.

  8. Ben P says

    Re Ben P @ #4

    I quite realize that, at times, the law is an ass, but, absent the exclusionary rule, what is the enforcement of the 4th amendment relative to the requirement for a warrant to conduct a search? The likelihood of a prosecutor prosecuting the police for an illegal search is slim and none and slim is on the bus headed out of town.

    Although I didn’t say it explicitly, that’s sort of the point.

    The idea that a criminal should walk free despite evidence to convict, because that evidence was gathered through technically improper means, is a painful idea to swallow. To borrow a quote about democracy, it’s probably the worst way to protect the 4th amendment except all the other ways we’ve tried.

  9. doublereed says

    This does explain why even centrists try to claim that the ACLU is a “far-left organization,” possibly one of the most ridiculous statements out there.

  10. kantalope says

    The real problem is there is no penalty for NOT finding something in a search. You frisk some dark-skinned persons walking down the street: don’t find anything they get to keep on walking. If you do find something, after the facto probable cause is found, and they go to jail.

  11. says

    I actually do think the rpess has too much freedom, mainly because of the impossibility of libel claims and the public figure rule meaning, in practice, it’s OK to peep in people’s windows if they’re famous.

  12. lofgren says

    If you ask people the “hard case” i.e. “the police got a warrant, but it said only the house, not the shed, the police found the body and murder weapon in the shed, but a judge excluded the evidence because the search was illegal, is this right?” I fully expect that large majorities of people will say that they don’t believe this should be the law.

    My beef here would be the “technicality” of the warrant specifying “the house.” Why “the house?” Why not “the property?” If there was a good enough reason to search the house, there was almost certainly a good enough reason to search the shed, and most likely the warrant would have been granted except that the judge didn’t know there was a shed, or the police didn’t think they had to bother going through the process twice for something that is arguably and extension of “the house,” at least in spirit.

    In fact I think it would be reasonable if warrants should apply to people, not to places. So you get a warrant for a person and you can search his car, his house, his gym locker, the hotel room he stayed in last night, etc. That rule is incomplete because it makes fishing expeditions a little too easy, but I think it could be modified in a fair way that would prevent the kind of silliness that you describe above.

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