“Can the liberties of a nation be sure when we remove their only firm basis, a conviction in the minds of the people, that these liberties are a gift from God?” Thomas Jefferson
Enshrined in the Constitution is our collective understanding that our liberties are inalienable and given to the people by God (the Creator), not by government. That is a knowledge, a “conviction in the minds of the people”, that lives in a free people. This has lived in America and the American people since its founding.
One of the most fundamental liberties is the right to be secure in ones home, community and oneself. These are inalienable rights and are articulated in the Constitution and Bill of Rights.
This article is generated by what I consider to be two serious threats to our individual and collective liberty:
- Obama’s ‘mandatory civilian service’ corps, and if they would be directed to perform services for the government in homes or communities
- The proposed mandatory vaccination for swine flu
Both of these initiatives will be at our doorsteps in September.
This discussion will focus on Amendments III and IV of the U.S. Constitution as vehicles through which to ensure that each of these initiatives do not violate our personal homes, communities, or our individual bodies. That is, our rights and liberties as enshrined in the Constitution and the Bill of Rights.
Obama plans to announce his mandatory civilian service corps on September 11 at Lafayette Park, across the street from the White House. Interestingly, there is a statue of Andrew Jackson on a horse there, in the midst of battle.
Could Obama’s ‘mandatory civilian service corps’ be considered ‘soldiers’ of the government in any way? And if so, would Amendment III apply in its strict interpretation, or as subsequently modified by Supreme Court (SCOTUS) decisions?
Here is the text:
Amendment III. 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.
Joseph Story, in Commentaries on the Constitution, wrote that
This provision speaks for itself. Its plain object is to secure the perfect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion. The billetting of soldiers in time of peace upon the people has been a common resort of arbitrary princes, and is full of inconvenience and peril. In the petition of right (3 Charles I.), it was declared by parliament to be a great grievance [emphasis added].
This interpretation is like many which encompass both ‘military and civil intrusion’. To redress civil intrusion that has already occurred, a civil action is required. To prevent a civil intrusion, a firm knowledge and exercise of one’s inalienable rights to security from invasion of a civil force is necessary.
Can the Amendment III right of an individual and home be extended to the community? In a time of peace, no ‘soldier’ can be located within a home without the owner’s permission; if the owner, and other owners within the community understand and use their inalienable rights under Amendment III, could a ‘civilian intrusion’ be prevented?
“Where Law ends, (says Mr. Locke) TYRANNY begins, if the Law be transgress’d to anothers harm”. Samuel Adams
- Amendment III and Privacy
In 1965, the Supreme Court ruled, in part using Amendment III, that the Constitution protected a right to privacy (Griswold v. Connecticut). The case involved a Connecticut law that prohibited the use of contraceptives. By a vote of 7-2, the Supreme Court invalidated the law on the grounds that it violated the “right to marital privacy”. It seems to be that this case in particular began to expand Amendment III to “privacy” as a protection from a “civil invasion”.
Although the Bill of Rights does not explicitly mention “privacy,” Justice William O. Douglas wrote for the majority that the right was to be found in the “penumbras” and “emanations” of other constitutional protections. Concurring opinions used the Ninth and Fourteenth amendments (due process clause) to defend the Supreme Court’s ruling.
The dissenting opinions argued that the right to privacy is not found anywhere in the Constitution and criticized the use of the other amendments cited by colleagues in defense of the law.
Since Griswold, the Supreme Court has cited the right to privacy in several rulings, most notably in Roe v. Wade, 410 U.S. 113 (1973). While this ruling continues to be abhorrent to many, can this “right of privacy” be used to prevent a ‘civil invasion’, be it from Obama’s new civilian corp or a public health nurse sent to give you a swine flu shot?
Amendment IV is commonly referred to as “the right against unlawful search and seizure”, but for this article the primary emphasis is once again the inalienable right to be secure in one’s person and home:
Amendment IV [ Annotations ]. 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.
There is considerable discussion in legal circles as to the history and scope of this amendment, as well as whether the two clauses should be read separately or together:
the question arises whether the Fourth Amendment’s two clauses must be read together to mean that the only searches and seizures which are ”reasonable” are those which meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are ”reasonable” searches under the first clause which need not comply with the second clause. This issue has divided the Court for some time, has seen several reversals of precedents, and is important for the resolution of many cases.
For the Fourth Amendment to be applicable to a particular set of facts, there must be a ”search” and a ”seizure,” occurring typically in a criminal case, with a subsequent attempt to use judicially what was seized.
The interest protected under Amendment IV has often been interpreted as relating to property alone. However, in several cases related to wire-tapping the protection of the privacy interest, not just property, has been advanced–i.e., no physical trespass is required to violate the right. As detailed here,
Protection of property interests as the basis of the Fourth Amendment found easy acceptance in the Supreme Court and that acceptance controlled decision in numerous cases. For example, in Olmstead v. United States, one of the two premises underlying the holding that wiretapping was not covered by the Amendment was that there had been no actual physical invasion of the defendant’s premises; where there had been an invasion, a technical trespass, electronic surveillance was deemed subject to Fourth Amendment restrictions.
The Court later rejected this approach, however. ”The premise that property interests control the right of the Government to search and seize has been discredited. . . . We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.” Thus, because the Amendment ”protects people, not places,” the requirement of actual physical trespass is dispensed with and electronic surveillance was made subject to the Amendment’s requirements.[emphasis added]
Remember FISA, anyone?
There is much discussion about the character of the warrants, the specificity of the search, and protections against seizure of material that is protected under the First Amendment.
What is evident here quite simply is that there is paperwork involved if anyone wants to violate your space physically or personally. This would seem to me to apply to any Obama civilian corps and any attempt to enter your home and give you a flu shot.
“Where’s your warrant? Under what authority? Where’s your i.d.? “
What I have simply done here, as with many of my articles, is to discuss the existing framework of rights and obligations within the context of the threats to our Constitution, and therefore, ‘we the people’. If we forget about our inalienable rights, and don’t exercise them, it is much easier to have the government fill the vacuum left by the people.
So rather than panic, prepare. As a threshold issue, we must ask for and get proof of the safety of and ingredients in every vaccine. And since the swine flu vaccine is going to be given in three doses, it is important to ask about the interactions of these vaccines in the body, before we are experimented on.
Regarding the swine flu vaccinations, it may be possible to have your doctor prepare a medical form, or some statement similar to a ‘conscientious objector’ to protect yourself from anyone coming to your door or trying to vaccinate you in public. Remember that flu vaccinations will be required for children going back to school….is home schooling an option? A doctor’s form?
Regarding the Obama civilian army, the best thing is to talk with your neighbors about their Third and Fourth Amendment rights. The ‘soldiers’ can be stationed in a home only with permission of the owner; during a time of war, there must be specific legal procedures. Know your rights!
The form of the Obama civilian army will be interesting to see unfold. Armed with our Constitutional rights, we can continue to attack the funding for such a venture, challenge the legality of ‘mandatory voluntary service’, and challenge any specific action underneath the guise of this bill.
We have inalienable rights that are guaranteed; Obama is trying to replace that with a government-granted rights system. Don’t let him.
Rather than being an old, irrelevant piece of paper, the Constitution could not be more relevant to our lives today. That was how the Founding Fathers intended it to be, for us to use it and live it every day.
There is often as great a rage for change and novelty in politics, as in amusements and fashions.The Federal Farmer, no. 16, 1888