MCViewPoint

Opinion from a Libertarian ViewPoint

Using War to Assault Freedom

Posted by M. C. on April 21, 2022

War is the health of the state and the graveyard of liberty. The drug war was a disaster for freedom. The war in Ukraine will be so as well, only if we permit it.

By Andrew P. Napolitano

Most judges and lawyers agree that the war on drugs in the past 50 years has seriously diminished the right to privacy guaranteed by the Fourth Amendment.

Now a small group of legal academics is arguing that the war in Ukraine should be used to diminish property rights guaranteed by the Fifth Amendment.

Here is the backstory.

The Fourth Amendment was written to guarantee that the government may only search and seize persons, houses, papers and effects pursuant to a search warrant issued by a judge after the presentation under oath of evidence demonstrating that the place to be searched more likely than not contains evidence of crime. And the warrant itself must specifically describe the place to be searched and the person or thing to be seized.

These requirements — the work of James Madison, who was the scrivener of the Constitution in 1787 and the author of the Bill of Rights in 1791 — were intended to have two effects.

The first effect was to uphold the quintessentially American right to be left alone. The second was to compel the government to focus its law enforcement personnel and assets on crimes for which there is probable cause, not fishing expeditions or hunches.

Madison’s language prohibited absolutely the use of general warrants, a favorite tool of the British government against the colonists. General warrants were based on whatever the government wanted or claimed it needed.

The colonists were tormented by, and driven to revolution over, general warrants, as they authorized British agents to search wherever they wished and seize whatever they found. Surely, the dreadful colonial experience with general warrants was a driving force behind the wording and ratification of the Fourth Amendment.

Sadly, during the war on drugs, prosecutors and police persuaded judges to craft “emergency” exceptions to the Fourth Amendment. These included allowing police to look for whatever they wanted in cars and homes, and using the CIA for warrantless surveillance, lest the drugs supposedly being sought be destroyed before capture.

The effect of this was to destroy a fundamental liberty in deference to easing police work; that’s the definition of a police state. The courts effectively ruled that somehow the Constitution prefers liberty — rather than evidence of crimes — to be destroyed.

The Fifth Amendment protects the life, liberty and property of all persons from destruction or aggression by the government without due process of law. Due process requires a jury trial at which the government must prove fault.

Thus, property cannot be seized temporarily or taken permanently without either a search warrant or a jury trial.

Now back to the war in Ukraine.

See the rest here

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