Amendments 1 – 10: The Bill of Rights
Part Two: 3rd, 4th, & 5th Amendments
Amendments 3, 4, & 5 of the US Constitution form a natural set. These amendments form a very clear joint statement of the importance the Framers set on the protection and sanctity of private property. Lord Camden said, in Entick v. Carrington1, "The great end for which men entered in society was to secure their property." This principle imbues the entire Constitution, and finds specific expression here in these three Amendments. Please recall that the federal government is most emphatically NOT a "national" government; it is a creation of the states and the people, the Constitution is the contract, and the areas given to federal jurisdiction are FEW and DEFINED. Furthermore, the federal government itself is NOT a party to the contract, and has NO legal "standing" to change the rules regarding its own areas of jurisdiction! The Bill of Rights, in its entirety, is a set of further restrictions upon the lawful actions the federal government may take, and the areas in which it may lawfully operate.
Let's start with an overview of how they work together, then look at each amendment and see how they apply individually. (The 5th Amendment serves double duty and its other purposes will be discussed next time.)
Third Amendment: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Fourth Amendment: 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 probably cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fifth Amendment: 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, on in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence 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 three amendments, taken together, demonstrate the depths of the States' concerns that the newly-created federal government be properly constrained, and forbidden to act against the interests of the people in a number of ways. If, as Lord Camden stated, people enter into societies to protect their property, the very first obligation is to defend against encroachment upon peoples' rights to their property by that selfsame government!
We see, in these three amendments, specific restraints against the federal government. There are restraints against allowing the army to take/confiscate/use the homes and possessions of citizens. There are restrictions on the government's going on "fishing expeditions" for evidence of crime and for summarily removing a person's property unless someone is willing to swear before a judge that there is reasonable suspicion of a crime. There is the outright statement that no one may be deprived of their life, liberty, or any of their property without "due process" of law. ["Due process" is a term that goes back to the Magna Carta, and has a very specific meaning. It means judgment of one's peers pursuant to a fair trial where one can appear and defend oneself, plus question witnesses testifying against their case, and know exactly what they were being accused of and what laws the purported act violated.]
Private property is shown by these amendments to take precedence over the government's wants (which are always presented as "needs" or "requirements"). In creating this federal government, we are promised liberty, not security. Benjamin Franklin said, "They who give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." For those who make that bargain, that is exactly what is received, in the end: neither liberty nor safety -- but precarious and fear-filled bondage to the government. As we saw way back in the very first of this series of articles, all our rights derive from property. Therefore, protection of your property -- your person, the expressions of your thought, the efforts of your work, the accumulated chattels of a lifetime -- is the only legitimate purpose of government. What the government claims it "needs" is not.
The seeds of the 3rd Amendment were sown in the experience of pre-Revolutionary War America. Their experiences also give us a greater understanding of the Framers' deep distrust of standing armies and their preference for relying on militias of local men, armed as well as the standing army. It was long-standing British practice to send the militia (not the "Regulars," aka "Redcoats" or the "regular army," but the militia) to various locations within Britain, and some of those men were quartered with families rather than in inns or tents. The regular army had barracks and posts of their own and were not quartered upon the populace. Upon passage of the Townshend Acts and, later, the Quartering Acts (this latter was part of what were termed the "Intolerable Acts"), soldiers of the regular army were housed with the citizenry - by force. As the Revolutionary War progressed, soldiers (to be fair, there were abuses on both sides) were not only housed and fed by unwilling families - but those families were sent to one room or even turned out of their homes (sometimes to the barn; sometimes just out), had wives and daughters seduced, assaulted, and/or forcibly taken away, saw their clothes and other possessions stolen, their stored food confiscated, their livestock killed -- once the soldiers finally left, many families had almost nothing left from a lifetime of hard work. By the British, quartering could be - and was - used as a tool to harass or to ruin colonial families considered "troublemakers" (our side called them "patriots"). Just recently, we can see the possibility of the IRS having been used for much the same purpose in its harassment of Tea Party and other conservative groups who had applied for tax-exempt status for their organizations. The need for the principles of the 3rd Amendment lives on.
The 4th Amendment addresses our personal protection against government seizure of our property (self, home, chattels, and the products of our work), intrusion into our privacy, and prohibits searches and seizures based on hearsay, rumor -- or nothing. This amendment was a direct consequence of the abuse of "writs of assistance" by British officers in Colonial America. Originally a court document requesting a specific task of a law officer, they were widely mis-used as non-expiring, general-purpose search warrants allowing officers of the Crown to come barging in at any time, any where, searching for any thing that looked suspicious to them (possibly smuggled, appealingly tasty, or simply nicer than their own), and removing it without receipt, without specific warrant, without charges ever being filed, and without ever getting the item back or receiving compensation for its loss. In this country, a specific, named, person must go before a judge and convince that judge to issue a warrant to search for a specific item or category of item, in a specific place, based on potentially provable suspicion of a crime. That person must be sure enough of their position to take a chance on having legal action taken against themselves (1st Amendment, "redress of grievances" clause) should their assertions be proven wrong, or if the searched-person's rights are violated during or after the search (seized property not returned, property not listed on warrant is seized, other property damaged, the person is injured, etc.).
Note that the 4th Amendment serves as yet another protection of the right of the people to keep and bear arms: the federal government has NO Constitutional authority to authorize any gun confiscation laws against the citizenry.
To anyone with eyes open, it is patently clear that the Patriot Act, the TSA, the use of drones in the skies of the USA, the proposed victim creation (incorrectly termed "gun control") statutes, the NDAA, the confiscation of property for "drug offenses" (including houses owned by people who unknowingly rented apartments to dealers), and a number of other recent acts by this administration as well as previous administrations, are all completely and utterly unConstitutional and illegal. They are usurpations of powers not only not granted, but specifically prohibited! -- and therefore null and void. Every state should nullify each of these acts within its borders, immediately and fully.
The 5th Amendment deals in part with the rights of someone accused of a crime. That part of the 5th Amendment will be addressed in the next article. In this article, we will examine the last parts: "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." Here the Constitution reverts back from the Declaration's "life, liberty, and the pursuit of happiness" to the more specific phrase, "life, liberty, and property." "Due process of law" is, as noted above, an ancient legal term with "precise technical import," and which requires a public trial (no back-room, closed-door proceedings), where charges are clearly stated, witnesses are called, questioned, and cross-questioned, and a final verdict is rendered by a jury of one's peers.
Trial by jury is yet another level of protection from tyranny in government, and the government does not want you to know about the extent of that protection. Despite judges' orders to the contrary, juries are empowered to determine both fact and law! The jury can find that the law in question (a) does not apply to the case, (b) is not Constitutional and therefore null and void, or (c) is unjust and therefore unenforceable. These powers are based in old English common law and date back many centuries. The jury, in any of the cases above, must find the person on trial "not guilty" (at least - there is far more they can do). For more information, see extensive resources from the Fully Informed Jury Association2.
The last clause of the 5th Amendment addresses "eminent domain," a concept incorrectly termed in Black's Law Dictionary as a "right of the state." We know that states have no rights; rather, they have privileges granted them in order that they may carry out their duties. Claiming that a government has a "right" would negate the premises our country is founded upon, and entirety of our Constitution! We rejected that premise, which hearkens to the days when all lands were part of a king's domain, with our Declaration of Independence made in 1776.
The government in this country has no right to eminent domain, yet there is a long tradition of the exercise of eminent domain (therefore, we give limited privilege to the government in this area). In this phrase is an implied acceptance that, in rare instance, the general welfare of the public might conflict sufficiently with the rights of a property owner that the government might have a strong position to take possession of property. The clause forbids a simple "taking," however, and seeks to assure any affected property owner that they will be properly compensated for their loss.
"For public use" should be considered in the same terms as the proper meaning of the "general welfare" clause -- that which benefits all people, and not any one person or government district. This privilege has been wildly abused, and "for public use" has been stretched past the breaking point to imply "we can get more tax money out of it if it's used for other purposes or by other people." This abuse was upheld, in error, by the US Supreme Court in at least one recent case (Kelo v. City of New London) - with a predictable result: tax-generating privately-held land was taken, and after the machinations of government had improved the "public good," what was left was an abandoned lot. There is a manipulation of terms here, as well: "public use" (such as expansion of dock-yards for general commerce, or building a post road to serve a new town) has morphed into "public good" - a much more abstract term, and one in keeping with collectivist aims to negate the rights of individuals in favor of the power of the state. This is a very dangerous change, which needs to be reversed.
This overview finishes our examination of the amendments specifically protecting property; next time we will look at a set of amendments specifically protecting people.
© by the author, 2013
1. 19 Howell's State Trials 1029, 1035, 95 Eng. Reg. 807, 817-18 (1765)
2. Fully Informed Jury Association, http://fija.org/
3. Text of US Constitution, with annotations, at law.justia.com
4. Michael Badnarik, "Good To Be King," The Writers Collective, 2004 available only at www.constitutionpreservation.org
8. 1828 Webster's Dictionary at http://1828.mshaffer.com
9. US Constitution and Declaration of Independence
10. W. Cleon Skousen, "The 5,000 Year Leap," National Center for Constitutional Studies, 1981