A New Constitution-How About Applying The Old One First? Part II

A recent story in the UK Telegraph (story can be read HERE) begins this way

This has got to be the weirdest news story of the year so far. Yesterday my iPad pinged with Breaking News from the New York Times: a mass grave, containing 30 bodies, had been discovered in Houston, Texas, it said.

This is about a VERY strange story out of Texas where a private home and property were searched with a search warrant, mind you, on the basis of a bogus tip. More on that later. Despite digging up a man’s private property and rooting around in his home, no bodies were found anywhere on the property nor was any evidence whatsoever uncovered of the “dozens of children’s dismembered bodies” that were supposed to be found there.

Important to note here is that the “paper of record,” the “Old Gray Lady,” the only source of news trusted by establishment liberals reported this story as  unquestionably demonstrated fact in its “Breaking News” bulletin.  Now, that’s not the point here but it is VERY satisfying to point out that not all reported as “fact” by media outlets turns out to be fact. Very often what is reported to be “fact” is 180o out of phase with the actual facts of the case. The New York Times and dozens if not hundreds or thousands of other news outlets got caught in a trap. Thee trap is a philosophy that says “if it bleeds, it leads” meaning the more sensational the story the more likely it is to get hyped. Sensation still sells papers (or radio and TV spots or internet news site hits).

What’s really important to this story is the facts of the case and how the so-called “watchdogs of liberty,” the much vaunted “fourth-estate,” the press has treated how the government has handled the searches of private property in this case. Well, OK. No harm, no foul though, right? WRONG! Dead wrong. There WAS harm here. It was to the United States Constitution and to the rights of not only the homeowner but to EVERY property owner.

All of the news media outlets are now treating this incident as something of a joke. It’s really no laughing matter. But to grasp why we need to review the constitutional reasons why this was not just incompetence on the part of law enforcement but criminal malfeasance. It’s the fourth amendment. here’s the text-

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.

Let’s examine the text here closely. People have an inalienable right (meaning that it is an intrinsic property of each and every free person by reason of their humanity) to be secure in their persons, houses, papers, and effects. The key word in this portion is secure. According to Webster’s 1828 dictionary the word secure means

1. Free from danger of being taken by an enemy; that may resist assault or attack. The place is well fortified and very secure. Gibraltar is a secure fortress. In this sense, secure is followed by against or from; as secure against attack, or from an enemy.

2. Free from danger; safe; applied to persons; with from.

3. Free from fear or apprehension of danger; not alarmed; not disturbed by fear; confident of safety; hence, careless of the means of defense. Men are often most in danger when they feel most secure.

Confidence then bore thee on, secure1

From the definition a free person should feel completely at ease regarding his right to not be subject to an unreasonable search. But what constitutes an unreasonable search? We’ll go to Webster’s 1828 again and look at the definition of unreasonable

1. Not agreeable to reason.

2. Exceeding the bounds of reason; claiming or insisting on more than is fit; as an unreasonable demand.

3. Immoderate; exorbitant; as an unreasonable love of life or of money.

4. Irrational. [In this sense, see Irrational.]2

Now many of you might ask “So what’s the problem? There was a search warrant issued, after all.” And indeed there was a search warrant in this case. But there’s an additional caveat in the fourth amendment. Warrants can only be issued on probable cause, on the strength of an oath or affirmation regarding the evidence of wrongdoing. So what was the evidence of wrongdoing in this case? See if you believe this to be reasonable. The sequence of events went something like this, at least according to the New York Times (read story HERE). 

…on Tuesday, the sheriff’s office received information that indicated there were the remains of children on the property….Liberty County’s top elected official, County Judge Craig McNair, told reporters that the woman first called about the house on Monday evening, claiming to be a psychic. Acting on her tip, deputies went to the general area of the house on Monday. On Tuesday the woman called back, describing the house in greater detail and telling officials where to search…When deputies went to the house, they found blood and noticed an odor. [emphasis added]

Presumably, at the discovery of the “blood and odor” the “law enforcement agency” then obtained a search warrant. On this point the Times is vague and possibly deliberately so. To have blasted out a “Breaking News” item trumpeting the discovery of “dismembered children” buried in someone’s back yard, rather than holding back and getting the facts straight and asking the tough questions about the search itself they made the editorial decision to go with a bogus story. That tends to make one want to cover their editorial tracks and side with law enforcement on the question of the reasonableness of the search warrant. So was the warrant issued on a reasonable suspicion of a crime? The Telegraph article says it best

…on the back of one phone call by someone who claims to be able to read people’s minds, a massive police operation was launched, a man’s privacy was violated, and around the world Breaking News alerts informed millions of people that 30 dismembered kids had been discovered in Texas. You couldn’t have asked for a better snapshot of the astonishing credulity and weakness for crankiness amongst people in positions of power today. Police are now trying to track down the psychic. But when one psychic can impact on the world in this way, it is quite clear that the problem is *us*, and our capacity to believe the worst and our penchant for hocus-pocus, rather than them. It’s a daft world indeed that can allow itself to be led astray by an eccentric on the end of a phone.

This quote from the Times is most telling about what REALLY happened. This from the homeowner

Gena Bankson, 40, a long-haul truck driver who has lived in the house with her husband, Joe, for about four years, said in an interview on Tuesday evening that she believed the caller was a woman she knows who is “mentally unstable.”

This is the breakdown. On the basis of the word of a possibly mentally unstable “psychic” called police (at least twice) and made wild and unsubstantiated claims on at least one of the calls and claimed a “preternatural knowledge” of the layout of the property in question. On the basis of those calls police went and sniffed around the property in question and spotted blood and smelled decomposing garbage and therefore decided the “psychic” had credibility based on “knowledge of the property.” The blood turned out to be from an acquaintance who attempted suicide and is currently in a psychiatric hospital. The smell was some garbage in the sun. The “preternatural knowledge” of the “psychic” regarding the homeowner’s property was due to an acquaintance with the homeowner.

Does this all seem like a search warrant was issued on an oath or affirmation based on the reasonableness of the evidence? The blood and smell could have been cleared up with a mere knock on the door and checking the story of the homeowner. Was speed of the essence, as someone might claim? How long does it take to move more than 2 dozen dismembered bodies and clean up evidence of butchery of this magnitude, anyway? “But they might have escaped when it became obvious that the police were investigating” some might say. To go where? And does that justify the issuance of a warrant on incredibly thin “evidence” like the word of a mentally brittle “psychic?” But somebody in the police department decided they’d like nothing better than to discover dozens of bodies in some poor schlump’s (read taxpayer’s) back yard and make a big splash in the news. And that’s one of the reasons the fourth amendment is written like it is. Was the strict standard of reasonableness met? What do you think?

Well, the police made their big splash. Like the fat kid at the pool who does a bellysmacker off the high dive. But the press isn’t asking the right questions. Maybe this couple will contact a conservative civil rights organization who will ask the correct questions of the police who applied for the warrant and of the judge (or magistrate) who issued one on this incredibly flimsy evidence. The bottom line question is this- Will the fourth amendment prohibition against unreasonable searches and seizures be enforced? And here is the problem with those who point to things like this and say “See? What we need is an new constitutional convention to “fix” this problem.” No. Since a new constitutional convention is all but certain to weaken the protections we currently have in order to “protect” us you see, then perhaps we should actually try enforcing the constitution we have rather than replacing that which is unbroken.



1 http://www.1828-dictionary.com/d/search/word,secure

2 http://www.1828-dictionary.com/d/search/word,unreasonable

Series NavigationA New Constitution- How About Applying The Old One First? Part I