By KrisAnne Hall, JD
Congress, the FBI, IRS, ATF, EPA and other executive agencies of the federal government violate American property and due process rights every single day. Now through the draconian use of the “guilty until proven innocent” standard through federal civil asset forfeitures, Gun and accessory bans, and land grabs, members our federal government are not only turning their backs on the Constitution, but are also denying the States’ authority to protect the rights of their own citizens. For example, a federal ban on gun accessories like “bump stocks” is not simply a violation of the 2nd Amendment, but also violates every protection of due process. It is in the very least, an unreasonable search and seizure of privately owned property.
The Fourth Amendment should bring to every federal government entity and the American people as whole to the proper perspective on the limits of government power over the superior authority of the rights of the people over their property. The Fourth Amendment is a very plainly written and self-defining text. The meaning and application of the fourth amendment should be easily understood and applied. Yet decades of academic deception combined with an ever expanding federal power base has driven the American people to doubt the plainness of the text and adopt the error thrust upon them by those who profit from government power.
The Fourth Amendment reads:
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.
The Fourth Amendment is plainly written to force the government to recognize the inherent right of the people to be secure in their property and creates only one exception to that inherent right; a reasonable search and seizure. It is self-defining because it explains the exact parameters of a reasonable search an seizure. By the text, the only exception to an American’s right to be secure from federal searches and seizures is when the government can completely fulfill the following requirements:
- A warrant
- Based upon probable cause
- Supported by oath or affirmation (due process)
- Particularly describing the place to be searched
- Particularly describing the things to be seized
We know that all five elements are required to be present at the same time for a search and seizure to be lawful because within the list of the text, the elements are connected by the word “and” not “or.” Therefore, any search or seizure that does not meet all five elements simultaneously is NOT a reasonable search and seizure and is precisely the “unreasonable” search and seizure that the Fourth Amendment puts the government on notice they are prohibited from exercising.
Civil asset forfeiture, along with the seizure of persons and property authorized by Congress under the Patriot Act, are complete violations of the required elements of the Fourth Amendment and clear attack on the rights and Liberties of the people. The Fourth Amendment was ratified as a part of the Bill of Rights to remind the people to never allow their government to exercise an arbitrary power over the property of the people. But that is exactly what our federal government has been doing for decades.
Federal bans of certain classifications of property are no less insidious, covert searches and seizures under the color of law. A ban on guns or accessories is a warrantless seizure of property, not only for those who already own these items, but for those who would own them in the future, and those who manufacture and sell those items. There is no standard for due process in these bans, the government simply creates a law or regulation and demands everyone complies. No warrant, no trial by jury, guilty of no crime – the quintessential arbitrary search and seizure of personal property.
James Madison, father of our Constitution warned us about kind of government that exercises this arbitrary power:
“That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures…” Essay on Property, 1792
Madison calls this exercise of arbitrary power, “the most compleat despotism.”
**For More on Madison’s Essay on Property, read my article Property, Liberty, & Due Process**
What we must recognize is that every “exception” to the federal government’s search and seizure restrictions established by the Fourth Amendment are exceptions created BY the federal government to increase the power OF the federal government OVER the inherent rights of the people. There has been no amendment to the Constitution to expand federal search and seizure power because of the “necessities” of national security, drug prosecution, IRS debt collection, gun control, or environmental protections. All exceptions come through either congressional act, executive order, or supreme Court Opinion. However, without an amendment to authorize this expansion of power, these political mechanism are contrary to the Constitution and therefore invalid.
“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No…act, therefore, contrary to the Constitution, can be valid.” Federalist #78
And, our current government’s pledge to engage in this arbitrary deprivation of the rights of the people classifies themselves under the category of “most complete despotism” and their unlawful searches and seizures are declared by the Constitution and those who wrote it to be invalid.
There are ways to fight terrorism and criminals without trampling the rights of the people. Constitution demands the government operate within those parameters. I am reminded of the words of William Pitt, in 1783:
“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”
If we allow the claim of necessity to justify these proven infringements upon the rights of the people, that would classify our government as tyrants and Americans as slaves. Our States must guard the people’s rights and refuse jurisdiction to the federal agencies attempting to enforce these unlawful and unconstitutional searches and seizures.