I’M GOING TO FLOAT ONE OF MY “NOVEL” theories of law. Some background:
The theory of ordered liberty is founded (at least in part) in the notion of self-ownership. Unreasonable pomo idiots can argue the validity of the concept — and they have and will continue to witter on about it — but we here at BTB will consider it “settled law” that each and every individual human being in all of Creation owns himself, and that all of his rights stem from that self-ownership. This is enshrined in the phrases from the Declaration of Independence…
We hold these truths to be self-evident: that all men are created equal; that they are endowed by their creator with certain unalienable rights…”
Et-ceterrah, et ceterrah, et ceterrah.
It follows, therefore, that, under systems “instituted among men” to secure individual rights, certain rights extend from this — a sort of (if I may) penumbra of rights that logically inhere to the individual — the right to own property, including the produce of one’s labor, and to dispose of it as one sees fit; the right to self-defense and the defense of property and to own and utilize the means of that defense (i.e., the right to keep and bear arms); the right to privacy in the matter and effects of one’s business.
The Fourth Amendment to the Constitution of the United States 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.
So far, not terribly controversial — except in the fever swamps of the left’s chattering classes and the soi-disant ruling class. Here’s where we swerve into somewhat novel territory.
Please to take note of the First Amendment to the same Constitution — Number One, as it were, in the Bill of Rights. It begins, “Congress shall make no law,” and then goes on to describe such laws as Congress shall make none of.
NONE OF THE OTHER AMENDMENTS CARRY THIS LANGUAGE.
Lemme repeat that a little more quietly: None of the other amendments carry this language.
Now, to me, this means that the First — and only the First — applies solely to Congress and no one else. And all of the persiflage about state or private infringements or abridgements of First Amendment rights means bupkis.
But, contrariwise, all of the arguments as to how the Second through Tenth Amendments place limits on the Federal government and only on the Federal government is just so much eyewash.
Now, before you react in a knee-jerk fashion, stop and think about this for a minute. We’re all originalists, here, right? We believe that what a law says is what it means, and that for what it says and means, the final authority must be them as writ it. Write? I mean: Right?
Of course it’s right. And it’s been so dispositively demonstrated for so long as to render any arguments to the contrary prima facie evidence of bad faith. So don’t even try. You do, Ima cut you off at the knees — rhetorically, of course.
And you should remember that Robert Peel, the father of modern policing (i.e., agents of the state as we think of them today) was born in 1788, while the Constitution was ratified that same year. The birth of the modern police state was decades away. (Although, it should be noted that Philadelphia — where the Constitutional Convention was held — had a city police force as early as 1751, but it appears not to have been “professionalized” until some time roughly contemporaneously with the London Metropolitan force foundend by Peel.)
Our Curmudgeon holds forth on this subject most eruditely and you should go and RTWT.
Therefore, one must accept that for the contemporaneous (contemporaneous to the Framing, that is) understanding of the security of rights to hold, restrictions on actions held to infringe or abridge must apply equally to private citizens as to public officials. For example, the Second Amendment right to keep and bear arms inheres to the individual citizen, and no actor — public or private, at any level of government or business — may infringe upon it. Private property owners may bar armed persons from their property, except in the case of those operating public accomodations.
(Aside: See how the Left may be hoist on its own petard.)
But what’s this thing about a warrant?
Well, a warrant is nothing more or less than a legal document which permits a citizen to violate the rights of another citizen in straitly limited circumstances, ringed about with legal defenses to protect the rights of the innocent — which all citizens are to be assumed to be until proven otherwise in a court of law, and — as Our Curmudgeon observes — before a jury of their peers. (And isn’t the Left twisting itself in all kinds of knots to vitiate those defenses?)
Nowhere in there does it say that warrants can, may, or shall be issued exclusively into the hands of officials whose office the very existence of which, for the most part, had yet to be conceived.
Oh, come on, Alger! There were professional cops before Robert Peel!
Sure! There were the revenue agents (USCG founded 1790) and the Marshals (founded 1789). But there was also the militia. And volunteer watch. Before the foundation of professional police forces, much policing was done by volunteer private citizens. Nor is there anything in our constitution or common law that prevents this — a point which should be kept in mind when the police claim exclusive powers; they don’t have them.
And they are most certainly usurpatious when they unlawfully extend their powers, as Warren Meyer observes at Coyote Blog and as Glenn Reynolds catches the New York Times reporting. (Quelle surprise!)
Did you know that, despite the privacy act which forbids public or private entities from using your Social Security number as an identifier, if your SSN is not associated with an interest bearing account, the IRS can (and will) simply steal the taxes due from the account — regardless of whether you honestly report the income on your return — and you have NO recourse … because, of course, (and in compliance with the law), your SSN isn’t associated with the theft?
Did you know there was a Double Secret codicil to the Fourth and Fifth Amendment that those laws don’t apply to the IRS? Yes. It’s true. Those scofflaw tax rebel Founders put that in there so that the enforcers of an income tax (which they held to be an abomination) wouldn’t have to get warrants?
And here’s where I go off the rails.
I believe that banks who provide your banking information to the IRS are in violation of the Fourth Amendment and therefore of 18 USC 241. The banks, not the IRS. (Well, them, too, but the special thing is the one about the banks.)
A friend just sent around an email that he was closing his Facebook account, because of this business to business service which surfs and sifts social sites for information about people and keeps it on file. Me, I don’t care, because I’ve never said anything online that I, personally, am not prepared to own. My employer gets skittish, but only that I don’t represent my views as those of the company. No problem.
I hold that service violates the Fourth Amendment.
But that’s publically-exposed information!
So? Is there also a Double Secret codicil that says information exposed to public view is nevertheless not afforded privacy protection? Just who does this information belong to, anyway?
Whose “person, papers, and effects” are these things? Who holds property rights in them? And where in the Supreme Law of the Land does it say, “Except for…” in regard to this matter? Is it given to any random Tom, Dick, or Harry to traffic in it ad libitum, harum scarum, and willy-nilly? I think not.
If woman is raped, is she then considered to be sexually available to any random man who happens to encounter her? Of course not. So, if information about you is exposed publicly — whether by your choice or not — how is it right that it can be turned against you, especially in venues where you have no opportunity to face your accusers and mount a defense?
Legal theorists like to blather about how you can’t unring a bell. I call bullshit. You unring a bell by reaching out and grabbing it. Voila! No more ringing bell. Once damage is done, there is no moral justification to add insult to injury by allowing the outrage to continue. My response to outrages against privacy is that privacy must be absolute. Whether it is public or the most closely-held secret, information about a person inheres to that person, it is as much a part of him as his skin or his mind, and is as sacred. Use of it without his informed and explicit consent is to be forbidden without exception.
And the law must needs be amended to reflect that moral fact, or these contretemps about privacy and information will be never-ending.
This has gone on for too long. Kevin Baker — on break as he is — will laugh at me for running on this long. But I don’t intend to stop here. I have more to say on this subject, and it’s radical as hell. Watch this space.
Cross-posted at Eternity Road.