Home Sweet Home

There are so many catch-phrases about the importance of home:

“There’s no place like home.”

“Not in my house!”

“E.T. phone home.”

The 3rd and 4th Amendments to the Constitution speak to the sanctity of the home for each American citizen, in quite different ways. The 4th Amendment actually covers quite a bit more than a person’s home, and completes the pentad of civil/criminal law Amendments along with the 5th through the 8th:

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, not only are citizens afforded some protection against searches of their homes, but also their personal and financial records, their belongings (including vehicles), and even themselves. Or at least in theory – more on that in a moment.

The 4th Amendment (as is the case with the entire Bill of Rights) traces back to early America’s strong English roots. In the centuries leading up to the American Revolution, searches and seizures were a means of oppressing opposing views, and even though warrants were required in name, it was easy enough to concoct one without true probable cause. The origin of “a man’s house is his castle” traces back to this time when Sir Edward Coke said “The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.” It just takes too long to say that when you’re sitting next to someone in a dive bar, so we tend to go with the shorter version these days.

While at least some effort was expended toward protecting the rights of citizens in England, there was virtually no protection for the colonists across the Atlantic. General warrants and “writs of assistance” were used to enforce oppressive tax laws even when little or no probable cause existed. In 1761, James Otis led a group of merchants into court on the issue, and although they lost, John Adams later stated this was “the spark in which originated the American Revolution”. Otis was elected to the Massachusetts colonial legislature for his efforts and continued to fight the battle from there. James Mason worked the prohibition of general warrants into the Virginia Declaration of Rights in 1776 at the onset of the Revolutionary War, and James Madison followed suit in the Bill of Rights a few years after its end.

The 4th Amendment is among the Amendments that have been most susceptible to the development of technology since its inception. Not much happened during the 18th and 19th centuries, but in the 20th century, particularly as we have developed and refined the means to communicate over great distances with electricity and light, the protections introduced by the 4th Amendment have become somewhat blurred. Meanwhile, as hostilities and tensions have heightened between races, nations, and creeds, the willingness to wait for things like “due process” and “probable cause” has taken a severe hit at all levels of Government. 9/11 took that to a whole new level on the surveillance front, and the ever-growing anxiousness of police officers and “citizen cops” reflects the trend in our streets.

The 3rd Amendment, by comparison, has seen very little activity, and in fact is the least litigated Amendment to the Constitution. The road to its adoption, however, does shed light on the earliest thinking around the 2nd Amendment, thinking that is still propagated today with zero tolerance for discussion: distrust of the armies of the state.

This distrust extends back to England, where citizens were confronted with two options in wartime (and let’s face it, England was often at war): housing soldiers in barracks or scattering them amongst homes, inns, and ale houses. Though not happy with either option, the English ultimately opted for the latter, as they did not like having a standing army in one place with the potential to bring down some form of Government-sponsored oppression.

As you might expect, the British exploited this with increasing frequency in the colonies, as more and more troops were deployed to keep them in line. In 1765 they began employing Quartering Acts, and the situation hit a head in 1770 with the Boston Massacre. You know a lot of the rest, but now you can see why the 3rd Amendment was a big priority in the framing of the Bill of Rights:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Now back to that distrust of Government armies… more specifically this traces back to English distrust of “standing armies in peacetime”. I noted in an earlier blog post that the Virginia Bill of Rights of 1776 was a key predecessor to our Constitutional Bill of Rights, and the Virginia document (as was the case with other early state constitutions) spoke directly to fear of standing armies: “a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free State”. That of course later evolved into the 2nd Amendment, which will be the sole focus of my *next* blog post. Which I hope you are able to read within the comfortable confines of your castle.

Ok our house is a little smaller.

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