Incorporated Rights and 4th Amendment Violations
(C) - Copyright, 1998 F.W. Boyle, Jr.

The Bill of Rights contains a listing (enumeration) of rights [these are NOT privileges and immunities as many in the legal community would have you believe]. In 1833, the supreme Court of the United States ruled that the Bill of Rights WAS NOT binding on the states. For 40 years following, the citizens of each state were left to the vagaries of their state constitutions. In the mid-1870s, Congress offered, and the people ratified, the Fourteenth Amendment. The ENTIRE AND SOLE PURPOSE of the 14th amendment was to constitutionalize and to make repeal of the rights recognized in the 1866 Civil Rights Act difficult. For another 60 years, the 14th amendment was held in perspective. Then in the late 1920s a new breed of supreme Court judges "found" previously unknown federal powers in certain of the clauses in the 14th amendment. During the ensuing years, certain amendments from the Bill of Rights were incorporated through the "privileges and immunities", "due process" and "equal protection" clauses and held to bind the states. Now, not all the Bill of Rights was or is incorporated. In a great power grab, the Court has NOT held that the exact protections of the Bill of Rights are incorporated rather the member of the Court have made THEIR versions of the various rights, with THEIR versions of exceptions, the law of the land.

An example of the Court's manipulative prowess concerns the 4th amendment. The 4th amendment is:
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 simple grammar of this amendment proves beyond a shadow of a doubt that warrant is required for ANY search and seizure to be reasonable. The naked text also proves the "probable cause" is required to obtain a warrant, not to stop and search a car or other private place. It is sufficient to note the there are no periods or semicolons within the 4th amendment. This places the separate clauses in a dependent relationship with each other. Thus the second clause is a complete exposition upon what the Framers and the Constitution require for a reasonable search and seizure.

One need not take my word for this. In the late 1800s, a giant of legal scholarship arose in Michigan. He was Michigan supreme Court Judge Thomas M. Cooley. Cooley produced a text on the Constitution which went through four editions, the last being produced in 1935, nearly forty years after his death. Here is Cooley's discussion of the fourth amendment.

Cooley, The General Principles of Constitutional Law, 1899, Civil Rights, Section. II, Pg. 229-232

"Unreasonable searches and seizures. -- The fourth article of the amendments has in its view invasions of right which are more frequent, and of which others my be guilty besides those who command the military force of the State. Most commonly, perhaps, they consist in a disregard of that maxim of constitutional law which finds expression in the common saying that every man's house is his castle. The meaning of this is that every man under the protection of the laws may close the door of his habitation, and defend his privacy in it, not against private individuals merely, but against the officers of the law and the state itself. The amendment declares that "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 latter clause of the amendment sufficiently indicates the circumstances under which a reasonable search and seizure may be made. First, a warrant must issue; and this implies, (a) a law which shall point out the circumstances and conditions under which the warrant may be granted; (b) a court or magistrate empowered by the law to grant it; (c) an officer to whom it may be issued for service. Second, a showing of probable cause; by which is meant the production of satisfactory evidence to the court or magistrate, (a) showing that a case exists in which the issue of a warrant would be justified by the law; (b) pointing out the place to be searched, and the persons or things to be seized if they shall be found there. Third, a particular description, in the warrant, of place, person, or things sufficient to guide the officer in executing it. Nothing less than this can be sufficient.1

The law providing for search warrant should be limited to cases of actual crime, in which the thing which was the subject or the instrument of the crime, or the supposed criminal, is concealed, or supposed to be concealed, on individual premises. The following are the most frequent cases: for property stolen, and the supposed thief; for property brought into the country in violation of the revenue laws, and the supposed smuggler,; for implements of gaming unlawfully kept; and for liquors unlawfully stored for sale. No doubt the right of search may be extended by statue to other offences; but any search to obtain evidence of an intent to commit a crime can never be legalized.2

The warrant must be executed by a search in the very place described, and not elsewhere; the service should be made in the day-time, and without the presence of a crowd of people;3 and the subject of the search must be brought before the court or magistrate, to be disposed of according to law.4 If the officer obeys the command of his warrant, and is guilty of no excess or departure, he is protected, even though the search proves to be fruitless and the showing of cause unfounded.

Without a search warrant the doors of a man's dwelling may be forced for the purpose of arresting a person known to be therein, for treason, felony, or breach of the peace, or in order to dispossess the occupant when another, by judgment of a competent court, has been awarded the possession. In extreme cases this may also be done for the enforcement of sanitary and other police regulations;
1 Bishop Crim. Procedure SS 240-246 See West v Cabell 153 US 78
2 Wilke's Case, 2 Wils 151 and 19 State Trials 1405; Broom, Cont. Law, 613; De Lolme, Const. of England, ch 18.
3. 2 Hale, P.C. 150; Arch Cr. Law 7th ed, 145.
4. Fisher v McGirr, 1 Gray (Mass.) 1; Green v Briggs, 1 Curt 311; Hey Sing Jeck v Anderson, 57 Cal. 251.

but, in general, the owner may close the outer door against any unlicensed entry, and defend it even to the taking of life if that should become necessary.1

The protection of the Constitution is not, however, confined to the dwelling-house, but it extends to one's person and papers, whereever they may be. It is justly assumed that every man may have secrets pertaining to his business, of his family or social relations, to which his books, papers, letters, or journals may bear testimony, but with which the public, or any individuals of the public who may have controversies with him, can have no legitimate concern; and if they happen to be disgraceful to him, they are nevertheless his secrets, and are not without justifiable occasion to be exposed.2 Moreover, it is as easy to abuse a search for the purpose of destroying evidence that might aid an accused party, as it is for obtaining evidence that would injure him, and the citizen needs protection on the one ground as much as on the other. Even a search-warrant to seize private papers, letters, and memoranda, must by wholly unwarranted, except possibly in cases of frauds upon the revenue, where the papers to be searched for have been the agencies or instruments by means of which the frauds have been accomplished or aided.3

1. Bohannon v Commonwealth, 8 Bush (Ky.) 481; Pond v People, 8 Mich. 150
2. Cooley on Torts, 2nd Ed. 346.
3. The seizure of the papers of Algernon Sidney, which were made use of as the means of convicting him of treason, and of those of Wilkes about the time that the controversy between Great Britain and the American Colonies was assuming threatening proportions, was probably the immediate occasion for this constitutional provision. See Leach v Money, Burr 1742; s.c. 1 W. Bl. 555,19 State Trials, 1001 and Broom Const. Law 525; Entick v Carrington, 2 Wils. 275; s.c. 19 State Trials, 1030, and Broom Const. Law, 558; May, Const .Hist, ch. 10; Trial of Algernon Sidney, 9 State Trials, 817.

This whole matter is learnedly and elaborately discussed in United States v Boyd, 116 US 616, where the question arose upon a revenue statute providing that in case of an action against an importer a certain paper should on notice be produced by him, or its contents as stated by the district attorney should be taken as true. The court considered the statute bad as violating the spirit of the prohibition of the Fifth Amendment against compelling a person to be a witness against himself, as well as that of the Fourth against unreasonable searches and seizures. It held that a compulsory production of papers to establish a criminal charge or a forfeiture of property was illegal whenever a search and seizure would be; that such compulsory production or search and seizure to get evidence of a crime is unreasonable, and differs utterly from a search for stolen property. Compare State v Griswold, 67 Conn. 290."

A special note should be made about the abuse of power being as easy as the proper exercise and that a search conducted to gather evidence of wrong-doing is unconstitutional under the 4th. The warrant must particularly describe the place to be searched and the persons or things to be seized. It really is as easy for the officers to destroy evidence of innocence as it is to "find" evidence of guilt!

And Cooley is not alone in this understanding of the 4th amendment.

However, since the 1833 decision eliminated the 4th amendment restrictions on state officials, state level violations continued into this century. Then the supreme Court using the due process and equal protection clauses of the 14th amendment determined in Mapp v Ohio that the 4th amendment was incorporated to bind the states. However, and this is a major however, the Court left open "certain" exclusions, thus leaving in place the current "probable cause" and other patently unconstitutional searches and seizures. So those who claim the 14th incorporates the Bill of Rights against the states are full of crap, having either swallowed it whole or lacking the intellect to question and understand for themselves.

Today, the Court is often viewed in awe, their every decision being claimed as correct, they ARE the Court of course. Blackstone, the father of our written codes, has this to say about the relative legitimacy of the power of magistrates:
"For whenever a question arises between the society at large, and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of that society itself. There is not upon earth any other tribunal to resort to."

Thus we must recognize the judges are not superior to the people and judges can be wrong. I do not claim every decision is incorrect and I am willing to restudy case law in order to hopefully prove my error. BUT, if the simple naked text of the Constitution, easy to understand by ALL people, is contrary to their decision, then I take the position that the Constitution reigns supreme even over the judge's decision.

Other examples abound! First, the supreme Court has continuously refused to hear cases involving the Second Amendment, leaving in place the 1833 decision that the states were free to violate the rights expressed in the 2nd amendment. State and local gun control has blossomed into 20,000 laws. Those who make much ado about the state laws have no grasp of reality.

The 1833 decision is easily proven incorrect and thus constitutionally invalid. The second amendment absolutely restricts all government infringement on Arms, at federal, state, and local levels. This is not say that laws concerning the proper use of Arms cannot be made but that no restrictions about ownership, i.e. taxes, license, etc., are valid. The Court has not accepted 2nd amendment cases for only one reason, they are reticent to force the rescinding of those 20,000 state laws and force the return of a great deal of power to its lawful owners, the people. The Court fears an armed citizenry, especially a citizenry which educates itself about the truth of the Constitution rather than passively accepting the judges as the only purveyors of the truth.

You are the th reader.

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