Home -- Site Map -- Search

 

The Ivory Tower Weighs In

 

          I was very dismayed to read an opinion piece by a Brian C. Kalt published in the Detroit News on September 11th  as one side of a pro and con page regarding new authority sought by the administration in the wake of the atrocities of a year ago.  Identified as a Constitutional law professor at Michigan State University, Mr. Kalt reveals in his presentation of widely defended but completely erroneous perspectives on the law that he is woefully ignorant about his area of specialty and worse still, by virtue of his position, must be presumed to be systematically passing along his misunderstanding to many others.

          Mr. Kalt, arguing in favor of general acquiescence to a promiscuous expansion of state police power as a necessary response to terrorism, falls into error early, claiming that, “… the Constitution makes clear that the scope of our rights is reduced during crises”.  On the contrary, our rights are inalienable and inherent, that is, they are outside of the scope of government, and are irreducible.  While a layman, making the observation to which Mr. Kalt proceeds-- that there are provisions within the Constitution by which we have permitted, under certain circumstances, a relaxation of the rules under which we require the government to act with respect to certain of those rights-- might be forgiven for mere semantic clumsiness in such an erroneous construction, a professor of law, whose business is semantic and conceptual accuracy, can be afforded no such luxury.

          Mr. Kalt then proceeds to completely misconstrue the Fourth Amendment, drawing from the explanatory reference to “reasonableness” therein a license to gut the Amendment’s power more or less at the will of the State.  The Founders intention in providing the Fourth Amendment was to recognize that any search or seizure which did not conform to the standards of both probable cause attested to under oath, and specificity as to object, was inherently unreasonable; they constructed the Amendment in the understanding that no search or seizure would ever take place without a warrant.  The practice against which they were providing was the granting to the police of their time what were known as “general warrants”, under which state agents acquired the power to search persons more-or-less without limitations.  The reading Mr. Kalt proposes amounts to a contradiction within the Amendment: that two kinds of searches are permissible, one kind with a warrant and one kind without; if a search is conducted without a warrant it must merely be reasonable, whereas if it is conducted with one, it must be explicitly circumspect.

            The Fourth Amendment reads as follows, “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.”  While I will grant that its construction could be slightly improved with the addition of a period after “violated” and the removal of the following “and”, it would only be thus improved in making more difficult its willful distortion by apologists for the state, such as Mr. Kalt.  But modification is not necessary.  Plenty of evidence as to the meaning of the Amendment is readily at hand.

           The Virginia Declaration of Rights, one of the earlier versions of the Fourth upon which it was modeled, reads in pertinent part, “That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted”.

          Similarly, the Declaration of Rights in the Pennsylvania Constitution of 1776, another precursor to the Fourth, says, “That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted”.

          Massachusetts, in its Constitution of 1780, put it this way, “Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws”.

          James Madison, in arguing for the inclusion of the Bill of Rights beofre Congress, described his intent for the Fourth thusly, “The rights of the people to be secured in their persons; their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized”.

          It is clear that the government is Constitutionally denied the power to conduct warrantless searches or seizures, and that those conducted lawfully by means of a warrant must conform to the careful prescriptions enumerated in the Fourth Amendment.

         

Though it is inarguable that the United States government has already strayed far indeed from its Constitutional boundaries, and that many courts,  including even the Supreme Court, have misconstrued the Fourth in the service of its ambitions, there is no justification for a specialist in the field such as Mr. Kalt to maintain, as his comments imply, that these past offenses conformed to the plain meaning of the law.

Subsequent to his holding forth on the Fourth Amendment, Mr. Kalt ranges into complete incomprehensibility with regard to the “due process” requirement, declaring that what is “due” is another situationally dependent limitation.  He argues that what is "due" in times characterized by the government as peaceful may be different from what is "due " in times otherwise characterized.  To borrow from the estimable Walter Williams, I invite Mr. Kalt to come and play poker at my house, under my “situationally dependent” house rules.

Ultimately, Mr. Kalt attempts to backtrack a bit by observing that if the State’s refusal to abide by the rules becomes too egregious, we can always revolt and do away with it.  I am impressed with his sanguinity regarding the ease of such a solution, especially keeping in mind that the presumptive reason for which we would undertake so drastic a move is that the powers which we deliberately retained in order to remain equipped to throw off a government grown casual about its boundaries have been abrogated.

 

As I indicated in my opening paragraph, I was dismayed upon reading Mr. Kalt’s essay mostly due to discovering at its end that he is a Constitutional law professor at a major university.  On reflection though, I suppose that I can be grateful that the piece was written and published.  Should I require the services of an attorney in the future, I am now forewarned to inquire as to the school at which any prospect has been educated, and choose accordingly.

 

© Peter E. Hendrickson