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April 2017 Policy Study, Number 17-6


A Commentary on the Bill of Rights


Part 11



Amendment IV:


This amendment is readily separated into two distinct parts, and we will discuss it accordingly.  The first part grants “we the people” a very precious right.  The second part describes how the government may restrict that right:


The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .


The basic right granted to the people is to be secure against the searches and seizures carried out by agents of government.  If this were the total substance of this amendment, the government would bear the same legal status to a free man as that of a common burglar because no one else has the right to search or seize us.  Our Founders were not only men covetous of their individual rights; they were also realists.  They were aware that it would, at times, be necessary for the government to infringe the security of the individual in order to protect the liberties of the populace.  Thus, this right was granted conditionally.  Still, the searches and seizures, which take place on the orders of government, must be of a reasonable nature.  It is in the second part of this amendment where we find the conditions prescribed which determine whether or not a search or seizure is of a reasonable nature:


 . . . 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.


The government’s claim to infringe on the rights of an individual is also conditional.  For a search or seizure to be of a reasonable nature, it must meet the condition laid down by our Founders.  A search or seizure may legitimately take place only upon issue of a warrant.  A warrant is a legal instrument issued by a judge or magistrate providing written authorization for an officer of government to act. 


Our Founders considered these matters of such sufficient consequence that they did not grant just any cowboy the authority to go out and act on his own.  The authority to grant authority was to be held in a limited number of hands.  It is first ceded from “we the people” to our highest elected executive officers, and from there it is ceded to our judicial officers.  Our judges and magistrates were to be sober and prudent men, visible to the community at large.  This is so the people are able to know what their public officials are doing and so the public officials can be held accountable for their actions.


The warrant itself has to meet three conditions, or tests, considered together in order to be considered legitimate:  1) It has to be based on probable cause.  In the vernacular, this means the government must have a damned good reason to even start to pursue the process;  2) The probable cause stipulated in the warrant is to be accredited by an oath or affirmation from the person responsible for making the charge.  This is an effort to both obtain truthful charges and to provide us with an ability to hold accountable the person responsible for making the charges.  It is to prevent the process from continuing on the basis of anonymous accusations;  3) The warrant is to contain a specific description of the persons, places, and items this warrant is to affect.  This is an effort to insulate us from agents of government who wish to go on fishing expeditions based on their gut feelings or who project an attitude of, “If I just cast the line often enough, or spread the net wide enough, sooner or later I’ll catch something.”  These methods of operation are inappropriate and intolerable because we will all fall prey sooner or later under these conditions.  There is no authority to behave in this manner, and it is an out-and-out abuse of power.


When taken together, and if honored by the agency of government, the Fourth Amendment is a powerful safeguard of our liberty.  However, when our Founders’ intent for this amendment is ignored or distorted, as I fear it too often is, it can leave us quite vulnerable to overly aggressive agents of government.  In fairness and some little defense of government, it is appropriate to denote that a sizable share of the culpability for this activity resides with us,“we the people.”  In our endeavor to acquire the utmost security, we have fallen into the habit of exchanging portions of our precious liberty for that perceived security.  We do not merely acquiesce in this exchange; we actively seek and even demand its occasion.  It is apropos to argue that this state of affairs, if continued for a sufficient length of time, will be fatal to the continuance of our liberty.  In an effort to crystallize the above concerns, some examples are in order.  Though there are a myriad of such examples, enough to fill a book by themselves, we will discuss only two in the interest of brevity.  The first is the proposition of random traffic stops, and the second is the modus operandi of the Internal Revenue Service (IRS).


The first situation is this:  You are traveling down a U.S. highway any time of the day or night.  Up ahead, you see a considerable number of flashing red lights, at which point you find agents of government, from local to national, indiscriminately stopping everyone on the road.  What on earth is going on?  They are most likely searching for motorists who show signs of use of illegal drugs or alcohol; and they are there at our behest.  Now that you are there and stopped, they can question you, check your identity and license, test you for the presence of drugs or alcohol, check your automobile for faulty equipment, demand that you exit your automobile, search your automobile and your person (this last condition was ameliorated somewhat in Iowa in 1999 or 2000.), and goodness knows what else.  To refuse invites being detained or even arrested.  And all the time, my silly self was under the belief that the Constitution provided protection against such unreasonable search and seizure.


How can this be?  They have no warrant supported by oath.  They cannot possibly describe in particular every person coming down the road because they have no idea of who might be on the road at any given time.  They can’t seriously believe that “everyone” coming down the road is under the influence of illegal drugs or alcohol.  So, just what is the probable cause?  As strange as this may sound, the Court has ruled that none of this has anything to do with the constitutionality of their actions.  On the contrary, they have ruled that the probable cause has become the simple fact that you are there at that place and time of your own volition.  They say you can take the inconvenient options of leaving the roadway you are traveling on or of turning around and leaving the scene.  It would be a pretty fair bet that if you were observed turning around and leaving the scene, you would still be stopped and the probable cause would then become the fact that you attempted to evade the roadblock.  Gotcha!


Again, none of this is to condone the abuse of illegal drugs and alcohol.  And I understand, perfectly well the need to protect the motoring public from those who would abuse them.  But to allow, and indeed encourage, these fishing expeditions, even on the pretext of so worthy a cause, is a very dangerous surrender of our liberties.  Despite what the Court has ruled, search and seizure under the circumstances described above are not reasonable.  Ladies and gentlemen, we are not making a wise exchange.


Suppose we were to allow that it could be statistically proven with one hundred percent assurance that X number of cars on the road contains an offender.  The fact remains at this point that they still do not know which car he is in.  They cannot specifically describe the person.  To indiscriminately stop all of the cars coming down the road abridges the constitutionally protected rights of everyone, even the admitted offender.  It is otherwise if he is observed in the wrong lane of traffic or there is something else that indicates an infraction of the law.  But to just stop everyone and sort it out later is an intolerable condition.


And the precedent it sets is intolerable.  If the agents of government are allowed to behave in such a manner simply because the enemy is illegal drugs or alcohol, what might the next target be which would make this police state behavior “acceptable?”  We have really opened up a Pandora’s Box; and however good the objective is aside, we are taking a terrible risk with our liberty.  Ask the citizens of the countries who have ceded the majority of their liberties to government in their pursuit of security just how secure they now feel.  I repeat; it is not a good trade.


The second item for discussion is the behavior of the Internal Revenue Service.  These friendly folks are almost universally hated.  This is no small wonder, because they are universally feared; and this is hardly a condition that engenders feelings of love.  But it is my opinion that the reason for our distaste of the IRS runs still deeper.  It is not out of place to suggest that the average individual intrinsically senses the fruits of his labor should belong to himself.  Indeed, if you hold the status of freeman, this is the case.  We should neither feel guilty nor apologize for this.  It is yours, and you have every opportunity to do whatever good you may voluntarily wish to do with those fruits.  Those citizens who are not indisputably entitled to one hundred percent of the fruits of their labors labor in the condition of servitude — enslavement.


When someone other than yourself has a claim on the fruits of your labor that you have not voluntarily granted, you are a slave.  It matters not at all whether that claim is one percent or one hundred percent of those fruits.  All that matters is that they have a claim you cannot deny or avoid.  Our government, in the form of income tax, has consigned us to this condition.  Their reasons for doing so do not change the disagreeable nature of the condition.  Even though an individual may not fully comprehend the reason for his disquiet, he does sense the wrong that is being done to him.  He feels, and is, as surely violated as anyone who has ever been held-up at gunpoint.  Income tax is the instrument of our enslavement, and the IRS is the implement of its enforcement.  It is the weapon of our violation, used to enforce the consummation of this unholy behavior.  Whether or not everyone fully comprehends the reality, this is the greatest reason the IRS is so detested.


The power they wield is immense, almost plenary.  The income tax statutes, and the rules and regulations they spawn, are unfathomable.  Their resources, as compared to the individual or corporation that may have cause to challenge them, are seemingly without end.  All of these assets they use with relish.  But the specific thing they do, and the actions associated with it that is a fit subject for discussion in this amendment, is the random audit.


A percentage of citizens are subjected to this process every year.  The citizen, his papers, and his effects are all to be exposed to the IRS agent on demand.  As this audit is random, there is no legitimate probable cause indicated.  If you object, you can be hauled into tax court.  Your records can be seized and your assets frozen, including the assets that generate your revenue.  This can all happen before you are judged guilty in a court of law, and it leaves the citizen with almost no resources with which to wage the battle of his own defense in that court.  These things do not happen in every case, but the threat is there.  All this is supposed to be acceptable because its random nature exposes all citizens to the audit equally.  But just because everyone’s constitutional rights can be violated equally does not validate the process.  It is wrong.


It is also dangerous to our liberty.  When this agency can conduct an audit of a seemingly random citizen at its own pleasure, the potential for abuse is unlimited.  The IRS has been and continues to be used to intimidate the citizen.  The fear of the IRS is used to deter the citizen from even challenging a government that has drastically overstepped the limits of its authority.  This use of the IRS is unlawful and illegitimate.




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