Wednesday, March 16, 2016

Protection of the Law

Amendment IV:
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 is where things start to get complicated.  There are all sorts of things that are rather open to interpretation in this Amendment.  What does it mean to be secure? In the electronic age what is the definition of papers and effects?  What is unreasonable? What is probably cause?
All of these questions have been asked and answered numerous times through the evolution and revolutions of case law, but none of them has been answered once and for all.  And in many ways this Amendment is violated on a daily basis, often by statutory exceptions (cough: Patriot Act).  Most of the violations have been deemed "necessary" for the public safety.  Some have been recognized and proven to be violations: Stop and Frisk. But the thing about it is that, far too often, the government, and law enforcement have been caught with their hand in the Amendment IV cookie jar.  It's funny (not in the ha ha way) that the very people who often defend the violation of Amendment IV in the name of safety are also the biggest Constitution huggers around.
The fact of the matter is that, if you're going to have this as a right for the members of your society, you are going to inherently increase the danger that one malefactor can do to your society.  You are going to have to turn drug dealers and maybe even murderers loose if the police botch the warrant procedure.  You are either going to have to violate everyone's rights or you are going to have to let terrorists operate under the protections of this Amendment.
What is it going to be America?
Over the past 15 years (and probably longer than that in the "war on drugs") the answer has been: forget about Amendment IV, we want to be safe.  Now, I'm sure that there are legal types who can probably make an argument that exceptions need to be made and "extenuating circumstances" blah, blah, blah.  I'm not a lawyer, and I've basically been making the point that our laws of the land are indeed a work in progress, in need of constant vigilance and evaluation.  I get it.
I am just pointing out that Amendment IV is the place where we are faced most regularly with the dilemma of trying to balance freedom and security (No, I'm not going to use the Ben Franklin quote, because apparently it has been taken out of context, and I freaking hate that.)  A society where everyone was totally free would be anarchy of a dangerous sort.  Here's a good quote about that:
I don't believe in anarchy, because it will ultimately amount to the power of the bully with weapons. Gandhi is my life's inspiration: passive resistance.  I don't want to live in the Thunderdome with Mad Max    -John Lydon, the older and wiser persona of Johnny Rotten, writer and performer of the most famous Punk Rock song ever: Anarchy in the UK, by the Sex Pistols
Prefer a little more erudite source? Here is Henry Ward Beecher:
The worst thing in this world, next to anarchy, is government.
And Aldous Huxley:
The worst enemy of life, freedom and the common decencies is total anarchy, the second worst enemy is total efficiency.
So here's where we are: no law is perfect, and no guarantee of rights under those laws is infallible.  Our society, including the rights and principles we hold sacred, are a work in progress.  The work of lawyers, legislators and judges, as I understand it, is largely beholden to following the train of precedent, which makes the progress often times painfully slow, but necessarily so.  Sometimes we get scared and rush to give up our freedom too easily.  Sometimes we are arrogant and cling to freedoms that are damaging to our neighbors.  I see no evidence that we have advanced beyond either one of those tendencies, and so laws will always have the unenviable task of protecting us from ourselves.
 

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