In November, the government made the Orwellian argument before the Supreme Court that law enforcement officials may attach GPS tracking devices to cars without a warrant. This month, Gallup issued poll results showing that 64 percent of Americans fear big government. Well, gee whiz.
Arguments in United States v. Antoine Jones focused on how the Fourth Amendment protects a “reasonable expectation of privacy.”
The Fourth Amendment protects Americans against unreasonable searches and seizures of “their persons, houses, papers, and effects.” The word “privacy” appears nowhere except in court decisions construing the Fourth Amendment.
People have no reasonable expectation of privacy as to their location when driving in public. After all, you could be tailed driving to your work or anywhere, even by private citizens. This highlights a flaw of the privacy angle.
The Fourth Amendment was the result of centuries of abusive government searches and seizures dating back to pre-American England. The phrase “every man’s home is his castle” comes from common-law restrictions placed on unlawful searches.
The law of search and seizures involves more than just a right of privacy. The common-law remedy in England and Colonial America against unreasonable searches was based in private property rights: lawsuits for trespass.
If the person executing the government search did not find the object of the search, he could be sued for trespass the same as if any person had entered your property without your consent.
The Fourth Amendment flipped the process. It requires several procedural safeguards in advance of the search, specifically the need for “probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The gist of the Fourth Amendment is that while government needs search powers to enforce laws, it must nonetheless comply with laws respecting private property and rights. Otherwise, a government search is little different than the violation of the law known as trespassing.
But what about attaching something to your car?
The right of privacy hardly applies to bumper stickers, yet it is inherently understood that your neighbor may not slap her favorite bumper sticker on your car.
Likewise, police may not affix items to your car — even bumper stickers with a worthy law enforcement purpose such as providing a phone number to report crimes.
Unlike the express provisions about unlawful searches and seizures, the Constitution is silent about affixing devices to your property. There is, however, the Ninth Amendment:
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
The Ninth Amendment “legal” argument might be summed up as follows: Unless you have a warrant, keep your damn devices off our property.
The government’s GPS Fourth Amendment case reminds me of a criminal defendant trying to get off on a technicality. The government is wrong but is looking for a loophole.
The Gallup poll does not express why so many people fear big government, but it may show an indicator.
The height of fear of big business was 38 percent during 2002, when Enron, WorldCom and big-business lawbreaking dominated the news. Big government swooped in to grab more power over the private sector in the form of the dreaded Sarbanes-Oxley and other laws.
It’s easy to hypothesize why two-thirds of Americans fear big government. Government doesn’t play by the rules or respect our rights.
Mark J. Fitzgibbons is co-author with Richard Viguerie of “The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society’s Biggest Lawbreaker.”
