The Third and Fourth Amendments to the Constitution

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.”

Paul

A Constitutional Government? What a Concept!

Let’s play a game! I’d like to pretend for a moment that the Progressive movement doesn’t exist; that the subsequent Liberals never discovered Karl Marx or Friedrich Nietzsche. Let’s imagine an America where we had the foresight and courage to block Soviet Russia’s attempts to demoralize America by infiltrating the American press, film industries and educational systems. Let’s ponder the future as if our past had followed a course that more closely resembled the government our founding fathers had meant for us to have. Before we can actually play that game, we must start at the beginning with a review of what that government was supposed to look like. Only then can we remap the last two hundred years and perhaps, speculate on the next two hundred.

The people that founded the American colonies were for the most part, British émigrés, people that sought to escape religious persecution or leave the crowded streets of England’s urban centers and seek new fortunes by settling a vast, new and relatively uninhabited land. There were spacious tracts of land and seemingly limitless resources to be exploited by adventurous men that were fit and industrious. Living in a pre-industrial, agrarian world, uses for many of the “new world’s” resources were still largely unknown but they would certainly come into play later. By the time the British colonies were firmly established in America, the Spanish myths about cities of gold had been disproven and fur trade, fertile lands and natural ports were considered to be America’s greatest assets.

While many still traveled back and forth to England, the American born descendants of the original settlers had mostly taken their father’s places by the turn of the 18th Century. They were beginning to create an identity separate from their British heritage mainly because the British Crown treated them as second class citizens. England had fought several skirmishes with Spain since the inception of the colonies and was actively sparring with France on the borders of the American colonies by the time the mid 1700’s had arrived. England had stationed a number of troops to guard the colonies against French incursion but the British Treasury was under pressure and the cost to maintain a protective force in numbers was becoming prohibitive. The English population was already overtaxed and on the verge of revolt so England turned to her second class citizens in America to carry the financial burden of her own protection.

For many, it may seem proper that the beneficiaries of that protection should pay for it but this story could not be written if Britain had not taken that principal too far. Strict limits were placed on the manufacture of American goods so that British made goods would still be in demand. While one new tax after another was levied on colonial trade, the colonies were continually denied the representation in Parliament that British citizens had enjoyed for centuries. The troops sent by England to guard the colonies were slowly assuming the duties of suppressing the anger that was slowly brewing against the unfair restrictions and tariffs. The troops themselves became the center of the controversy as colonists were forced to house and feed the soldiers at their own expense.

All of this would boil over into open insurrection and finally result in a bloody revolt against British rule. The Declaration of Independence would have had no more historical significance than an advertising poster for fertilizing manure had the colonies not defied all odds and emerged victorious. With their independence from England, the colonies would use their proclamation of natural rights and the list of grievances in that declaration to create an entirely new form of government.

The new government would be founded on the principal that man’s fundamental rights descended directly from God and were irrevocable; that these rights had always existed and were not an act of kindness granted by a beneficent government. The basic structure of the government they created borrowed the most historically successful parts from a variety of cultures. It would contain a body of civilian representatives as found in the British Parliament; a Senate as found in the Roman Empire and a democratically elected leader as part of the experiment. All of these would be restrained by law and for the first time in the history of the planet, the word of law shackled the reach government and the citizens retained supreme rule over all of it.

Central to the formation of the new government was the principal that the States remained sovereign and self governing. The Constitution created a governing body that would unify the States while each retained autonomy and that would not be an easy trick. They achieved this through a “bottom up” strategy. The people retained direct control over State government through the electoral process and the State would govern its citizens by laws enacted with the consent of the governed. The individual States would freely enter into a Union of States whose governing body would be comprised of elected representatives from each State and a President elected by the citizens of all of the States in the Union. It would be a Republic, with the electorate selecting representatives based on their principals and those representatives would vote for or against legislation on their behalf.

Each State would have to agree to abide by the United States Constitution in order to enter the Union. The Constitution is a document that not only reaffirms the State’s sovereign rule but clearly defines the powers that the States would delegate to the Federal government; strictly limiting the Federal government to those powers alone. As part of the Union, the States would agree to obey the laws passed by the Federal government so long as those laws pertained to the responsibilities delegated to the Federal government by the Constitution. A Supreme Court was established that would rule on any Federal law that was challenged by a State or citizen that could prove harm.

Curiously, the Bill of Rights were added as the first ten amendments to the Constitution and not written into the original document. It is not that the Founding Fathers considered those rights as an afterthought; indeed they considered those rights supreme. They did not add them because they did not feel they embodied the Federal government with any power sufficient to threaten those rights. We now know the confidence they had in the Constitutional limits placed on the Federal government was overstated and the Supreme Court spends much of its time hearing cases surrounding those sacred rights. While visionaries, the Founding Fathers saw that power is corruptible and did the best they could to see that the Federal government was correctly restrained. What they did not envision were the future generation of Constitutional scholars dedicated to finding pathways around those restraints and that would inevitably bring us to a point where the Federal government it threatening to become the master and not the servant of the people.

The Founding Fathers were geniuses but alas, they were still mere mortals. If they possessed the powers of clairvoyance perhaps they could have avoided the mess we are in today with a simple table of definitions added as an appendix to the Constitution. That would certainly have taken the wind out of the sails of those prominent Constitutional lawyers and closed the loopholes that they are now driving trucks through. Those definitions already exist in the Federalist Papers, a series of letters and correspondence penned by the founders that clearly detail their intent and place the language contained in the Constitution in context. Unfortunately, since those letters are not part of the actual Constitution they bear no weight in the actual review of the law as it is written. Armies of legalist attorneys now argue each and every word written in the Constitution and assign modern interpretations that shatter what were once considered iron chains on the power of the Federal government.

Tomorrow we begin our experiment in earnest. We will imagine that the Founders did include that table of definitions in the actual Constitution and that there is no longer any question as to the role of the Federal government. Make sure you wear a helmet and elbow pads because it’s going to be one hell of a ride!

Paul