Last week, the U.S. Circuit Court of Appeals for the Fifth Circuit, which covers Louisiana, Mississippi and Texas, ruled that the problem of undocumented immigrants in the U.S. is so acute and vast, and the Fourth Amendment so burdensome and time-consuming, that it should cut some constitutional corners.
The federal judiciary is supposed to be in the business of protecting the rights of individuals from infringement by Congress or the president or the states. In this case, the court saw fit to allow Immigration and Customs Enforcement, or ICE, to trample the sacred American right to be left alone.
How sacred? Well, James Madison, who was largely responsible for crafting the new Constitution and stewarding it through the states, realized a few years later — after Congress created the First National Bank — that the government would need some restraints.
The restraints were cataloged in the Bill of Rights. The Fourth Amendment, which protects privacy, has some of the most precise Madisonian language in the Constitution in order to enshrine privacy and protect it from the government.
To prevent the new government from doing what British soldiers and agents had done to the colonists, the Fourth Amendment prohibits general warrants which had authorized the bearer to search wherever he wished and seize whatever he found.
The amendment recognizes that our rights come from our humanity — not from the government — and they are inalienable unless and until we give them up by violating someone else’s natural rights.
This concept of rights as integral to humanity was articulated by Aristotle, refined by Augustine, codified by Aquinas, modernized by John Locke, embraced by the Continental Congress and Thomas Jefferson in the Declaration of Independence, and made part of the Constitution in the Ninth Amendment by Madison and the ratifiers.
The Fourth Amendment requires that if the government wants to search or seize any “persons, houses, papers, (or) effects,” it needs to be investigating a crime and it must have probable cause to believe that in those papers, houses or effects or on those persons is evidence of criminal behavior.
Then the government must present its probable cause to a judge under oath. If the judge agrees that the presentation does constitute probable cause of crime, the judge can sign either a search or an arrest warrant; and the warrant must particularly describe the places to be searched and the persons or things to be seized.
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