Fourth Amendment

Written by Michael Badnarik

The Real ID Act is already law; a legislative time bomb scheduled to explode upon the political landscape in May of this year, killing any semblance of privacy in this country. In order to defuse this horribly destructive ideology, we have to start with the basics.

It has long been my mantra that all of our political problems exist because Americans do not know the difference between RIGHTS and PRIVILEGES. A “right” is something you can do without asking permission, such as think, look around, or walk back and forth across your own property. A “privilege” is something you may only do after being granted permission, such as using someone else’s music in a commercial, reprinting copyrighted material, or walking back and forth across someone else’s property. (See for a more detailed explanation.)

WE THE PEOPLE have rights; a fact so often quoted, and so well documented in the Declaration of Independence, that it has become THE political axiom of every free country in the world. “We hold these truths to be self-evident, that all men… are endowed by their creator, with certain un-a-lien-able rights.” [emphasis, mine] Self-evident suggests that these truths are SO OBVIOUS, that it would be pointless continuing a discussion with anyone who attempts to refute the idea. Such a person would not have sufficient understanding of the world around us to be credited with the basic consciousness. To use street slang, they are “brain dead”.

“Endowed by their creator” is a phrase that places the source of our rights so far outside the purview of all levels of government, that any argument to the contrary is frivolous and indefensible. The only way government officials can justify an abrogation of our “divine rights” is to openly declare that God does not exist. Unfortunately, I wouldn’t put it past them to try.

When someone places a lien on your property, it is still your property, but you cannot sell your property before you satisfy the lien. A lien is a condition or limitation that is placed against your property. Our rights are “un-a-LIEN-able”, which means they cannot have conditions or limitations placed on them. Freedom of religion is not limited to those who are Jewish, Catholic, or Protestant. “Congress shall make NO law respecting the establishment of religion, or abridging the free exercise thereof…” [emphasis added]

Hopefully this will nullify any arguments suggesting that our rights are “granted” by the government, or conferred upon us by the Bill of Rights. Only privileges are granted – which brings us to the first five words of the Constitution (Art 1, Sec 1, clause 1). The supreme law of the land begins, “All legislative Powers herein granted…”. Let me emphasize that ALL legislative powers are privileges, which means that ALL legislative powers can be rescinded. This is what is meant by having the power “to alter or abolish” our form of government.

The Bill of Rights is not a comprehensive document. Our rights are so numerous that it would be physically impossible to list them all. That is why the Founding Fathers included the Ninth Amendment, which effectively conveys this very idea. However the right to privacy is one of the many rights that IS explicitly protected – in this case, by the Fourth Amendment.

“The right of the people to be secure in their persons, houses, papers, and effects, from unreasonable searches and seizures shall not be violated…” Under British rule, government agents were authorized to write “general warrants” or “Writs of Assistance” which gave them the presumed power to search anywhere for anything. Soldiers could literally write these warrants while standing outside your door, to be exercised as valid authority a moment later. The Fourth Amendment explicitly forbids this type of search as “unreasonable”.

This “leaves the door open” (pun intended) for defining what a reasonable search would consist of. The Fourth Amendment declares: “… 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.” Probable cause is the first requirement of any reasonable search. Authorities must have evidence in their possession that clearly implies the existence of additional evidence of a crime.

A reasonable warrant must also be “supported by [the] Oath or affirmation” of the agent requesting the search. The purpose of the oath is to make the government agent personally liable should the search subsequently violate the rights of the person being searched. Most of us have heard stories where police have kicked down the door of a home, holding the occupants at gunpoint while rummaging through their belongings… only to discover, somewhat belatedly, that they have searched the wrong address. In cases like this it must be argued that the innocent’s person’s rights were violated, and civil damages should be sought from the agent whose personal oath justified the warrant in the first place.

We can validate this concept by observing what typically happens in such situations today. Not only has the victim’s right to privacy been violated, their property has often been physically damaged or destroyed during the search, and the “perps” (as the police enjoy calling us whenever we commit a crime) are not even reprimanded by their superiors. Making government agents responsible for the actions they take while on duty is a necessary deterrent if we are to reduce the likelihood of them making similar mistakes in the future. Without this deterrent, officers are free to allege any “improbable cause” to give them the appearance of authority to search anywhere on a whim.

Starting on May 11, 2008, federal agencies cannot accept driver’s licenses or ID cards issued by states that are not in compliance with the REAL ID Act. Being in compliance means that they must have an embedded RFID (radio frequency ID) chip that can be scanned to provide instantaneous information to authorities. Recalcitrant individuals (like me) will no longer be ABLE to refuse to identify themselves to authorities. People can (and will) be scanned without their knowledge, and then action can be taken against them without due process of law. This turns the intrusive phrase, “Papers, please” into a hellish, Orwellian nightmare. Government agents will be able to perform an undetectable search so they can generate the “probable cause” necessary for a search warrant – assuming they feel the need to continue the charade of respecting our rights.

The Fourth Amendment was originally used to disqualify evidence that has been seized during unlawful searches, however the courts are beginning to rule in favor of police authority, and against the right to privacy. In 2005, the Supreme Court ruled in Hudson v Michigan that “suppression of evidence is not required…” “…where its deterrence benefits outweigh its substantial societal costs”. Unfortunately the court is overlooking the purpose of the Fourth Amendment its most important benefit – a population that feels secure in their privacy. On the other hand, when we feel anxiety knowing the government can search us or our property at any time, then our rights have already been violated, even before a physical search has been performed.

If we value our rights and our privacy, we must actively and aggressively resist this encroachment made all too easy by the use of RFID technology. There may come a time in your life when resisting a search is literally impossible. I know, because it has already happened to me.

In October of 1997 I was leaving California because of their draconian (and unconstitutional) gun laws, headed for my new job in Austin, Texas. As I crossed the Arizona border I stopped my car and extracted my pistol from the rear storage area, simply because it was legal to do so. Two nights later as I crossed the border into New Mexico, I was forced to a stop at a rest area where a “multi-jurisdictional task force” (ie. state and federal agents working together) had established a drug interdiction checkpoint. When the officer spotted the pistol in my console, I was ordered out of the car, and my automobile was searched without my permission.

I was certainly capable of reciting the Fourth and Fifth Amendments to the officers word for word, however that didn’t seem to be a prudent course of action when surrounded by humorless federal agents holding automatic rifles at the ready. Fortunately, we all remained calm, and all of my property was returned to me after being detained for more than 90 minutes. The outrage I felt once I returned to the freeway came too late to prevent this unconstitutional search.

We must not wait until highway checkpoints become a common, daily occurrence. If we value our privacy at all, we must refuse to accept any technology that will monitor our lives, and we must eliminate the Department of Homeland Security, which already operates like a modern version of the KGB. If not for ourselves, then for the bona fide security of future generations.

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