Before we get started, I feel it is important to restate the reasons I am taking this trip through history and the Constitution. The Federal government has set its sights on passing massive legislation packages that grossly exceed the powers granted to it under the Constitution. If we were to really understand the scope of these violations, we would need to revisit not only the Constitution, but the intent of the people that crafted it and the reasons behind the key provisions that were written into this incredible document so very long ago.
The Constitution has been carefully preserved and readily accessible for all to read but the tendencies of the modern courts are to interpret the inferences behind the articles and amendments to the Constitution rather than read the words that are written upon it. Unfortunately, when interpretations are actually needed, they are not based on the documentary evidence available in the Federalist papers but rather, using the criteria that a modern lawyer would use to interpret any law. “What is permissible without actually breaking the law” and “How can the lines that define this law be blurred to make the impermissible actually possible.”
The Federalist papers are a collection of writings penned by the same men that had written the Constitution. Within those documents are the points that each made as they formed the agreements needed to obtain the legislative consent of the draft of the Constitution. These arguments were not trifle and not without good reason. To ignore the Federalist papers is to ignore the very heart and soul of the Constitution. To ignore the Federalist papers while attempting to interpret the meaning of the laws written into the Constitution is nothing less than dishonest.
The Third Amendment to the United States Constitution.
Quartering of Soldiers. Ratified 12/15/1791.
“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.”
In 1765, Parliament enacted the Quartering Act. This Act stated that British troops stationed in the colonies would be housed in barracks and public houses. If the number of troops stationed in a particular area outnumbered the available military accommodation, the act permitted that the troops would be housed in a variety of structures including inns, stables, outbuildings, taverns, etc. and that the owners of those establishments would be required to provide food, bedding and other necessities without compensation. New York refused to cooperate with this act and the troops that arrived there had to remain quartered on board their ships. For their insolence, Parliament suspended the Province of New York's Governor and legislature in both 1767 and 1769. In 1771, the New York Assembly acquiesced and finally allocated local funds for the quartering of the British troops.
Since there was already a precedent established under Parliamentary rule whereby the King’s soldiers were quartered at the expense of the citizenry, a protection against future abuses of this sort were demanded as the new Constitution was in the process of ratification. While that was fresh in the minds of the people of the newly formed United States, it is hard to imagine that such abuses could occur in modern times. Even though there is only one notable court case on record that challenged the Third Amendment, the foresight of the founding fathers proved invaluable. Ironically, that challenge was brought by striking corrections officers against the State of New York; the very same state that had refused to cooperate with the Quartering Act of 1765.
Engblom v. Carey (677 F.2d 957), was a 1982 court case decided by the United States Court of Appeals for the Second Circuit. The case was centered on a 1979 strike by New York State correction officers. The National Guard had been activated to perform some of duties of the striking officers. At certain prison facilities, including, Mid-Orange Correctional Facility, striking employees were evicted from employee housing which was then used to house some of the National Guard.
Two of the evicted officers at Mid-Orange Correctional Facility, Marianne E. Engblom and Charles E. Palmer, subsequently filed suit against the state of New York and its governor, Hugh L. Carey. The decision, rendered on May 3, 1982, established that the National Guardsmen legally qualify as soldiers under the Third Amendment, that the amendment applies to state as well as federal authorities, and that the protection of this amendment extends beyond home owners. The majority stated that the officer’s occupancy in the rooms was covered under the legal rules of "tenancy" and therefore, was protected under the Third Amendment.
The Fourth Amendment to the United States Constitution.
Amendment 4 - Search and Seizure. Ratified 12/15/1791.
“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.”
This amendment is the cornerstone of our rights under the justice system. Since the premise is that all persons in the United States are considered innocent until proven guilty, there was a need to provide security against the unreasonable search or the confiscation of property without the due process of law. Barring circumstances where appropriate authorities actually witnessed the commission of a crime or have reason to believe that life and limb are in immediate peril, the involved authorities are required to bring evidence before a judge for the purpose of obtaining a warrant before a search can be lawfully executed without consent.
Failure of law enforcement to meet the requirements of the Fourth Amendment has resulted in numerous examples whereby evidence that was unlawfully obtained had been deemed inadmissible in court. While it seems ludicrous to allow someone that is in the possession of damning evidence to go free if that evidence was improperly obtained, to allow the unlawful collection of that evidence without consequence poses a greater danger.
Without lawful restrictions on illegal search and seizure or measureable consequences for violating the process of law, law enforcement agencies would have quickly descended into systematic violations of these principals as it became clear that the ends justified the means. Freeing the obviously guilty if their Constitutional rights have been violated is the only reliable method to insure that the rights of the general public will not be ignored.
We were faced with this question not all that long ago. After the terrorist attacks that leveled the World Trade Center and severely damaged the Pentagon, the natural instinct was to allow the government to pursue anyone that was considered a threat. While I do believe that President Bush had the security and best interest of the nation at heart, I considered the Patriot Act to be as much of a danger as the terrorists themselves.
The Patriot Act gave unprecedented power to the Federal authorities that in fact, truncated our rights under the Fourth Amendment for the purpose of uncovering possible additional terrorist activities within the United States. The law already provides for the pursuit of those individuals but the authorities would have to appear before a judge and produce evidence of just cause to obtain a warrant before they could search and detain any suspects. I wanted those “gentlemen” rounded up and brought to justice as badly as any other American did, but I also remembered the words and warnings of Benjamin Franklin. “Those that would surrender liberty for security deserve neither.”
The Constitution has been carefully preserved and readily accessible for all to read but the tendencies of the modern courts are to interpret the inferences behind the articles and amendments to the Constitution rather than read the words that are written upon it. Unfortunately, when interpretations are actually needed, they are not based on the documentary evidence available in the Federalist papers but rather, using the criteria that a modern lawyer would use to interpret any law. “What is permissible without actually breaking the law” and “How can the lines that define this law be blurred to make the impermissible actually possible.”
The Federalist papers are a collection of writings penned by the same men that had written the Constitution. Within those documents are the points that each made as they formed the agreements needed to obtain the legislative consent of the draft of the Constitution. These arguments were not trifle and not without good reason. To ignore the Federalist papers is to ignore the very heart and soul of the Constitution. To ignore the Federalist papers while attempting to interpret the meaning of the laws written into the Constitution is nothing less than dishonest.
The Third Amendment to the United States Constitution.
Quartering of Soldiers. Ratified 12/15/1791.
“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.”
In 1765, Parliament enacted the Quartering Act. This Act stated that British troops stationed in the colonies would be housed in barracks and public houses. If the number of troops stationed in a particular area outnumbered the available military accommodation, the act permitted that the troops would be housed in a variety of structures including inns, stables, outbuildings, taverns, etc. and that the owners of those establishments would be required to provide food, bedding and other necessities without compensation. New York refused to cooperate with this act and the troops that arrived there had to remain quartered on board their ships. For their insolence, Parliament suspended the Province of New York's Governor and legislature in both 1767 and 1769. In 1771, the New York Assembly acquiesced and finally allocated local funds for the quartering of the British troops.
Since there was already a precedent established under Parliamentary rule whereby the King’s soldiers were quartered at the expense of the citizenry, a protection against future abuses of this sort were demanded as the new Constitution was in the process of ratification. While that was fresh in the minds of the people of the newly formed United States, it is hard to imagine that such abuses could occur in modern times. Even though there is only one notable court case on record that challenged the Third Amendment, the foresight of the founding fathers proved invaluable. Ironically, that challenge was brought by striking corrections officers against the State of New York; the very same state that had refused to cooperate with the Quartering Act of 1765.
Engblom v. Carey (677 F.2d 957), was a 1982 court case decided by the United States Court of Appeals for the Second Circuit. The case was centered on a 1979 strike by New York State correction officers. The National Guard had been activated to perform some of duties of the striking officers. At certain prison facilities, including, Mid-Orange Correctional Facility, striking employees were evicted from employee housing which was then used to house some of the National Guard.
Two of the evicted officers at Mid-Orange Correctional Facility, Marianne E. Engblom and Charles E. Palmer, subsequently filed suit against the state of New York and its governor, Hugh L. Carey. The decision, rendered on May 3, 1982, established that the National Guardsmen legally qualify as soldiers under the Third Amendment, that the amendment applies to state as well as federal authorities, and that the protection of this amendment extends beyond home owners. The majority stated that the officer’s occupancy in the rooms was covered under the legal rules of "tenancy" and therefore, was protected under the Third Amendment.
The Fourth Amendment to the United States Constitution.
Amendment 4 - Search and Seizure. Ratified 12/15/1791.
“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.”
This amendment is the cornerstone of our rights under the justice system. Since the premise is that all persons in the United States are considered innocent until proven guilty, there was a need to provide security against the unreasonable search or the confiscation of property without the due process of law. Barring circumstances where appropriate authorities actually witnessed the commission of a crime or have reason to believe that life and limb are in immediate peril, the involved authorities are required to bring evidence before a judge for the purpose of obtaining a warrant before a search can be lawfully executed without consent.
Failure of law enforcement to meet the requirements of the Fourth Amendment has resulted in numerous examples whereby evidence that was unlawfully obtained had been deemed inadmissible in court. While it seems ludicrous to allow someone that is in the possession of damning evidence to go free if that evidence was improperly obtained, to allow the unlawful collection of that evidence without consequence poses a greater danger.
Without lawful restrictions on illegal search and seizure or measureable consequences for violating the process of law, law enforcement agencies would have quickly descended into systematic violations of these principals as it became clear that the ends justified the means. Freeing the obviously guilty if their Constitutional rights have been violated is the only reliable method to insure that the rights of the general public will not be ignored.
We were faced with this question not all that long ago. After the terrorist attacks that leveled the World Trade Center and severely damaged the Pentagon, the natural instinct was to allow the government to pursue anyone that was considered a threat. While I do believe that President Bush had the security and best interest of the nation at heart, I considered the Patriot Act to be as much of a danger as the terrorists themselves.
The Patriot Act gave unprecedented power to the Federal authorities that in fact, truncated our rights under the Fourth Amendment for the purpose of uncovering possible additional terrorist activities within the United States. The law already provides for the pursuit of those individuals but the authorities would have to appear before a judge and produce evidence of just cause to obtain a warrant before they could search and detain any suspects. I wanted those “gentlemen” rounded up and brought to justice as badly as any other American did, but I also remembered the words and warnings of Benjamin Franklin. “Those that would surrender liberty for security deserve neither.”
Paul
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