The forgotten history of the Fourth Amendment, and its relevance for reforming the Patriot Act
For those who don’t know why my picture is 45 with the word Liberty on top, here’s the reason. I adopted this before Trump was even in the running for the 2016 election. It’s also part of what lead me to chose the username of GetAWarrant.
The Constitution of the United States protects the American people against unreasonable searches, and it does so against a long historical backdrop of government abuse. Over time, our founding fathers came to an understanding that the immense power of government needs to be constrained. They understood that those in power will tend to accumulate more power, and in time they will tend to abuse that power, unless that power is carefully constrained. America’s founding fathers were informed in many respects by what they learned from our previous national government, our London-based national government.
They were informed in part by the story of John Wilkes. John Wilkes, not to be confused with John Wilkes Booth, the assassin of Abraham Lincoln, was a member of English parliament. In 1763 he found himself at the receiving end of King George III’s justice. In 1763, John Wilkes had published a document known as the North Briton Number 45. The North Briton was a weekly circular, or type of news magazine in England. Unlike most of the other weeklies in England at a time, The North Briton was not dedicated to the praise of King George III and his ministers. From time to time, this weekly would actually criticize the actions of King George.
At the time John Wilkes published The North Briton Number 45, he became the enemy of the King because he had criticized certain remarks delivered by the King in his address to Parliament. While not openly and directly critical of the King himself, he criticized the King’s ministers who had prepared the remarks. For King George III this was simply too much. This simply could not stand. So on Easter Sunday 1763 John Wilkes found himself arrested and he found himself subject to an invasive search.
Now this search was performed pursuant to a general warrant. In other words, this was a warrant that didn’t specify the names of the individuals to be searched, the particular places to be searched, nor the particular items subject to that invasive search. It said in essence to go and find the people responsible for this horrendous publication, North Briton Number 45, and go after them. Search through their papers. Get everything you want. Get everything you need.
Now, John Wilkes decided that his rights as an Englishman should have prevented this type of action. He chose to fight this action in court. It took time, some of which John Wilkes spent in jail, but he eventually won his freedom. He was subsequently re-elected to multiple terms in Parliament, and because he fought this battle against the administration of King George III, he became something of a folk hero across England.
In fact, the number 45, with its association with the North Briton number 45, became synonymous not only with John Wilkes but also with the cause of freedom itself. The number 45 was a symbol of liberty, not only in England but also in America. People would celebrate by ordering 45 drinks for their 45 closest friends. People would recognize this symbol by writing the number 45 on the walls of taverns and saloons. The number 45 came to represent the triumph of the common citizen against the all-powerful force of an overbearing national government.
With the example of John Wilkes in mind, the founding fathers were rightly wary of allowing government access to private activities and the communications of citizens. They feared not only that the government could seize their property, but also that it could gain access to details about their private lives. It was for exactly this reason that when James Madison began writing what would become the fourth amendment in 1789, he used language to make sure that general warrants would not be acceptable in our new republic. Ultimately, Congress proposed and the states ratified the Fourth Amendment to the U.S. Constitution, which says that any search warrants would have to be warrants that are “particularly describing the place to be searched and the persons or things to be seized.”
