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.
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.
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.
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.
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.
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.
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
© Peter E. Hendrickson