As Justice Tom C. Clark said in Mapp V Ohio, “Nothing can destroy a government more quickly than its failure to observe its own laws[i].” Of course, he was composing the majority opinion in the landmark case that forced individual states to exclude evidence obtained without a proper warrant. His warning goes far beyond the reaches of the Fourth Amendment[ii].
Everyone, at some point, find themselves in a situation wondering, “How did I get here?” It is easy to understand the consequences of a car wreck. Understanding the way a child from a “good” family ends up a delinquent may not be so apparent. We have to look to a series of events to truly understand the situation. It is the later example that illustrates the danger the United States faces with our moves ever closer to the tipping point since Justice Clark’s observations back in 1961.
Over time, our freedoms, as citizens of the United States, have eroded. With small steps, a government that seeks to control the population rather than lead it diminishes each freedom held sacred. People often use the analogy of a pendulum swinging back and forth when talking about changes to our freedom. In other words, laws restricting freedom are passed, then over time, changed to restore freedom. This analogy is simplistic and misleading as restoring freedom always falls short of where it began.
A better analogy is a “rising bottom[iii]” trend (Figure 1). Stock analysts us it to describe a company’s stock where the price is going up and down but the overall tend is up. The lowest price of a particular swing is higher than the lowest price of the swing before.
In much the same way, our freedom swings from more restrictive to less restrictive and back again, but the overall tend is more restrictive. The restrictiveness of our law is more restrictive than its change before. Changes to the Fourth Amendment are prime examples of this theory.
Since its adoption with the Bill of Rights[iv] in 1789, the Fourth Amendment has received over sixty[v] reviews by the Supreme Court, most within the last one-hundred years. It is understandable given criminals use it to try to get out of trouble and law enforcement pushes it to its limits trying to put criminals in prison. On its face, that level of review might seem like a good thing, but in reality, it makes for an unsettled situation where nobody understands just what the right covers anymore. Regardless, the overall trend is the cases limits the protection of every citizen and increases the power of state and federal governments to intrude in our lives.
For example, in Mapp v Ohio, the case overturned because the police failed to obtain a search warrant and simply intruded into the home. Another case, United States v. Leon[vi], the court modified the ruling in Mapp saying the police can use evidence seized with an illegal or invalid search warrant, if they acted in good faith. The key being what constitutes good faith. In other words, if there is a mistake on a warrant or it is not specific enough, a judge can allow the evidence as long as the offices did not intend to violate the principles of the Fourth Amendment. Sort of a “trust me, would I lie about it?” statement from the police.
While the Leon ruling does limit the protection granted in Mapp, the findings in the Arizona v. Evans (1995)[vii] and Herring v. United States (2009)[viii], in truth, blow it away. The Evans case found if the police obtain a warrant based of false information retained in police records, the search is valid. In Herring, the court further found if the police rely on false information provided by a different law enforcement agency a search is valid. The net effect being the police can simply allow data to remain active, even when it is not true or accurate and then later rely on that false data to obtain a warrant. In other words, it creates an atmosphere that encourages bad behavior by law enforcement with little or no recourse by citizens.
For about 130-years the Fourth Amendment went without challenge. After that, the court muddled its meaning with weak and vague findings. In 1961, in the Mapp case, the court again place clear definitions on the amendment’s meaning only to have later cases again whittle away at our individual protection, just like the raising bottom chart illustrates. It is easy to side with the government and law enforcement as most of the people in these cases were trying to get away with some illegal activity. To do so is a mistake; supporting the erosion of our Fourth Amendment protections allows the persecution of individuals without the proper oversight of courts or a grand jury. Further, it allows and encourages an atmosphere of corruption within the various law enforcement agencies.
By no means is this action restricted to the Fourth Amendment. Our freedom is under attack by the government our constitution seeks to limit. The government takes our freedom in little bites we hardly notice and justify it with claims of national interest and serving the greater good. We think of limitations, of the sort imposed after the terror attacks of 9/11, as temporary. The government sees them as a windfall and will be hard pressed to ever return them to us.
This is exactly the point that Justice Clark tried to make. You see, while the quote at the beginning is widely known, it leaves out most of the point Justice Clark intended. Here it is in its entirety:
“Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U.S. 438, 485 (1928):
Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.[ix]”
This is the danger we face today. In a misguided effort to allow law enforcement to prosecute criminals, we encourage criminal behavior by law enforcement and give up our rights in the process. The time to stem the flow is now; waiting too long will lead to the anarchy Justice Brandies worried about.
[i] Mapp v. Ohio. Section V. Supreme Court. 19 June 1961. FindLaw. FindLaw, a Thomson Reuters Business. Web. 2 Oct. 2010. <http://laws.findlaw.com/us/367/643.html>.
[ii] “The Constitution of the United States,” Amendment 4, <http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html>
[iii] “Rising Bottom Definition.” Investopedia.com – Your Source For Investing Education. Web. 02 Oct. 2010. <http://www.investopedia.com/terms/r/risingbottom.asp>.
[iv] “Bill of Rights.” National Archives and Records Administration. Web. 02 Oct. 2010. <http://www.archives.gov/exhibits/charters/bill_of_rights.html>.
[v] “MediaWiki Talk:United States Constitution/Amendment Four.” Wikipedia, the Free Encyclopedia. Web. 02 Oct. 2010. <http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution>.
[vi] “United States v. Leon.” LII | Legal Information Institute at Cornell Law School. 17 Jan. 1984. Web. 02 Oct. 2010. <http://www.law.cornell.edu/supct/html/historics/USSC_CR_0468_0897_ZX.html>.
[vii] “Arizona v. Evans, 514 U.S. 1 (1995).” LII | Legal Information Institute at Cornell Law School. 07 Dec. 1994. Web. 02 Oct. 2010. <http://www.law.cornell.edu/supct/html/93-1660.ZS.html>.
[viii] “Herring v. United States.” LII | Legal Information Institute at Cornell Law School. 07 Oct. 2008. Web. 02 Oct. 2010. <http://www.law.cornell.edu/supct/html/07-513.ZS.html>.
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