When Ellis Washington gets going, reason goes right out the window. In his latest Worldnutdaily column he argues that the 4th Amendment is a crucial bulwark of freedom (which is true) and, simultaneously, that the states should be able to violate it at will without any constitutional limits.
While the Fourth Amendment is often mentioned in connection with the Fifth, Sixth and Eighth Amendments – the other primary provisions of the Bill of Rights regarding the criminal due process guarantees of citizens – and is historically connected to the adoption of the Third Amendment to abolish the hated practice of British officers using the general writ of assistance to enter private homes, conduct searches and seize personal property of the American colonists. Under the tyranny of King George III, the British officers wantonly abused the private property of the colonists and were not required to put forward a single, specific reason to justify a search warrant or give a good reason for the taking of people’s personal property. In the majority cases, the writ of assistance was used to confiscate items thought to have violated the severe British customs laws of the colonial era.
The twin foundations of the Fourth Amendment, the probable cause and warrant requirements, are an expressed historical indictment against the hatred the framers had for the Revolutionary-era practices of English rule.
Yes, the 4th Amendment is necessary to safeguard against tyranny! And then the very next sentences:
However, similar to the First Amendment, the guarantees of the Fourth Amendment did not pertain to state and local law enforcement practices until well after the ratification of the 14th Amendment (1868). It wasn’t until almost 80 years later when FDR’s handpicked progressive activists on the Supreme Court in Wolf v. Colorado (1949) arrogantly ignored 160 years of judicial precedent (stare decisis) and marginalized the original intent of the constitutional framers, ruling that the 14th Amendment due process clause made the Fourth Amendment binding on the states (e.g., “Incorporation Doctrine”), whereby evidence seized in violation of the probable cause or warrant requirements could not be used against a criminal suspect.
The Incorporation doctrine is the most reactionary of judicial legislation commonly invoked by modern judges, which has essentially turned the U.S. Constitution into an activist document of progressive, socialist change over the past 70 years since FDR’s “New Deal Court” systematically devastated Natural Law, the Rule of Law, fundamental constitutional jurisprudence and the original intent of the constitutional framers…
This is the warped argument of the anti-14th Amendment types like Washington. They praise the Bill of Rights as vital safeguards to our liberty and our privacy, then say that those safeguards should not prevent state and local governments from violating those rights. And to reference the original intent of the founding fathers on this one fails one of the most basic premises of Constitutional interpretation — amendments change things. It’s certainly true that the Bill of Rights did not initially apply to the states, but the 14th Amendment changed that.
Even from a conservative originalist standpoint, what matters is the intent and public meaning of the 14th Amendment that matters here. And the framers of that amendment made quite clear that the goal was to apply the Bill of Rights to the states. Rep. John Bingham, one of the primary authors of the 14th Amendment, said so clearly in a speech introducing it to the House:
Is the Bill of Rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced…’Mr. Speaker, it appears to me that this very provision of the bill of rights brought in question this day, upon this trial before the House, more than any other provision of the Constitution, makes that unity of government which constitutes us one people, by which and through which American nationality came to be, and only by the enforcement of which can American nationality continue to be…’What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day?…Gentlemen who oppose this amendment oppose the grant of power to enforce the bill of rights.
He went on to say:
“I have advocated here an amendment which would arm Congress with the power to compel obedience to the oath, and punish all violations by State officers of the bill of rights, but leaving those officers to discharge the duties enjoined upon them as citizens of the United States by that oath and by that Constitution.”
“That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment.”
Sen. Jacob Howard, also on the subcommittee that wrote the 14th Amendment, argued for its passage on the same grounds:
‘Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States any compel them at all times to respect these great fundamental guarantees.’
This was the intent of the framers and it was the original public meaning — the way it was explained to the public at the time — as well. If one is to apply originalism consistently, there simply is no other conclusion than that the 14th Amendment applies the Bill of Rights to the states. But since Washington (and his hero, Clarence Thomas) don’t like that result, they jettison their originalism when it is inconvenient for them — while pretending not to, of course.
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