A blow to the Fourth Amendment

Wisdom of the week

[Reprinted from Issues & Views April 19, 2004]

Former Congressman Bob Barr expresses great concern over a recent Fifth Circuit Court opinion in Baton Rouge, Louisiana, which he says could "blast a huge hole in the Fourth Amendment," thereby substantially weakening the effectiveness of the Bill of Rights. The Fifth Circuit court covers the states of Texas, Louisiana and Mississippi. In his weekly letter (4/4/04), Barr claims that, if left unrepaired, the damage of this court decision "threatens to do what the Patriot Act could only hint at -- destroy the very foundation of the Fourth Amendment." He writes:

Of the 10 amendments that constitute the Bill of Rights, the fourth may be the most profound. By strictly limiting the circumstances under which the government may "invade" a citizen's home, possessions or person, it implicitly defines the relationship between people and government.

Each of us is entitled to a sphere of privacy which the government cannot breach except for good cause normally ruled on in advance by a judicial officer. That good cause is found in the amendment's key words, which in our pre-911 past were generally respected by the government: "unreasonable searches and seizures."

Barr is apprehensive about the court decision, which rules that evidence from warrantless searches can be used in court. He accuses the judges who voted with the majority of placing themselves "in the shoes not of the aggrieved citizen, but of the police."

In agreement with Barr is Jackson, Mississippi, attorney Buddy Coxwell, who says, about the judges' decision, "It looks like they've crafted an exception to the fourth amendment." He fears that if police officers alone can decide whose property can be invaded, without benefit of a judicially acquired search warrant, then "almost every contact with a citizen could lead to a search of their house." Two of the Fifth Circuit Court judges who dissented from the ruling called the 11-4 opinion "the road to hell."

Barr claims that the judges

bought into the dubious argument that absolutely any premises -- house, office, school -- into which a police officer steps, even if it is for a routine interview, poses a potential danger to the officer and therefore justifies a search of the entire premises. "Breathtaking" is the adjective that most readily comes to mind in examining the scope of this decision. . . .

What these few, unelected judges have now done is allowed the exception to swallow the rule; and in so doing, threaten the very foundations of the Bill of Rights and of its ancient predecessor, the Magna Carta.

Barr concludes with this concern:

As a Second Amendment enthusiast, I sure hope these particular judges don't get the opportunity to take their blue pencils to the Second Amendment. Or the First. Or any others, for that matter. Unfortunately, with lifetime tenure, and with an administration that believes the USA Patriot Act is far too weak, I don't think my fears will be allayed any time soon.

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