Yes, the numbering of this series is a bit confusing. This is chapter four of “Know your Constitution”. When I finish with the Bill of Rights and move into the other amendments, I’ll try to work out the titles so they make more sense.
Despite the current state of affairs I will do my best to remain dispassionate on this subject.
“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”
As with the other amendments, this was intended to limit the power of government, protecting the citizens against tyranny. You should see from the current administration of this amendment the importance of defending our Constitution.
This amendment has been stretched to support the “Right to Privacy”, although it only protects against governmental searches and seizures. The question we face in America today is “What constitutes a Warrant?”. Presently, a secret (unaccountable) government agency may apply to a secret (unaccountable) court for a secret warrant. How is this possible? Somehow, the Foreign Intelligence Surveillance Act (FISA) is being used to circumvent the warrant procedure for domestic surveillance. Perhaps this will be pursued as an investigation someday, well after 2016.
In the meantime, remember this is an amendment to the constitution, and as such does not apply to third parties, as held in United States v Jacobsen, so if you wonder why the government agencies involved in surveillance so often use third party contractors, wonder no more. As long as our leaders are lawyers, expect case law to be argued using every imaginable interpretation as they attempt to find loopholes in their limitations.
Seizures are not necessarily of property, so the fourth amendment also applies to seizures of people. An arrest is a seizure, and must be warranted (see “secrets” above). People being spirited away in the night is not supposed be possible in this country. Despite this administrations promises to uphold the Constitution as long as it’s convenient, this document was never intended to be convenient for tyrants.
While the fourth amendment protects what you may have said or written in the past from being seized, the fifth amendment protects the government from seizing our very person.
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”.
These clauses are designed to limit over zealous prosecution. It begins with a way to slow down the arrest process with Grand Juries. A “secret grand jury” is a perfect example of the letter of the law being met while the spirit is being consciously averted. The double jeopardy clause prevents the government from repeatedly charging an individual with the same crime, forcing the government to have a complete case before prosecution. Were this not in place the government could use successive prosecutions to slowly build a case, and the individual would not rest, knowing that he had never been found “Not Guilty”, just “Not Guilty so far”.
The next is the clause most are familiar with, protection from being compelled to self incriminate. This is where the protection from forced confessions comes from. Each of the clauses so far in this amendment are misused by criminals, but were they not in place, the innocent would suffer from false prosecutions, and the actual criminals would still escape prosecution. We often say it is better that criminals go free than innocents be punished.
The final clause reiterates the third and fourth amendment protections with due process provisions.
The rights of the accused continue to receive protection in the sixth amendment;
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence”
A speedy trial is largely protection against indefinite detainment. Pre-trial detention is punishment for a crime that has yet to be proven, and without limitations, well, there’s a reason we use Guantanamo Bay as a prison for those without constitutional rights.
Without a charge, there can be no preparation of a defense, so the prescriptions for a proper trial (impartial jury of peers, ability to confront accusing witnesses, assistance of counsel), are laid out here. The Fifth and sixth amendments make up the criminal rights made famous by Miranda v. Arizona, in which a confession was made without the suspect being informed he had the right to not self incriminate. It should be noted that after Miranda‘s initial conviction was set aside by the supreme court, he was retried without benefit of the confession, and was still convicted. Eventually he was stabbed to death, and the only suspect the police had exercised his “Miranda Rights” and remained silent. No arrest was made.
In the next chapter, I should finish with the Bill of Rights, and summarize the significance of these first ten amendments to the Constitution. From there I’ll go over the subsequent amendments.