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A Deconstruction of the 4th (and why its meaning has changed)

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The writs of assistance were search warrants issued to British law enforcement officers to search ships and homes for smuggled goods to upkeep smuggling laws. These writs of assistance and general warrants that England was imposing on the colonial homes and businesses, specifically to enforce trade and navigation laws, must have concerned the authors of the Bill of Rights. Limiting the power the government has on searching and seizing the peoples’ property would especially be an anti-federalist goal since they advocated for individual liberties.   

The common interpretation of the fourth amendment centers around safeguarding the security of individuals, ensuring that neither they nor their belongings can be encroached upon or violated without a reasonable warrant. Warrants are typically awarded to enforcement officers by a judge or a magistrate and must be produced based on probable cause, or be reasonable enough to confiscate or enter your property. Additionally, warrants must be clear about what they will allow authorities to collect or search. The goal of the fourth amendment is that of maintaining citizens’ privacy and security so that you and your property cannot be intruded on or violated without a warrant.   

The exclusionary evidence rule makes all evidence that has been collected illegally, void. The Fourth Amendment has sparked debate over whether the methods of search for the collection of evidence are legal or not. Recently, the controversy has centered due to a shift of applications from physical property, such as the search of your house or your belongings, to informational or intellectual property, such as the mass collection of your internet metadata. Specifically, digital privacy, or the safeguarding of logs that internet providers or telecommunications companies store on servers has been at issue, since the information citizens feel violated by the collection and search of their personal, otherwise private data. On the other hand, the search and collection of evidence helps catch serious criminals who wouldn’t have been otherwise caught. This complicates matters because who decides when the collection is necessary and when it is intrusive?   

Locke considered the right to private property a natural right. Locke’s enlightenment ideals align with the fourth amendment right to no seizure without a proper warrant because he believed the property was private.  I find the interpretation times have changed argument more effective because it points out the similarities between physical and non-physical property. The conflict I come to with the argument that informational property should be treated the same as physical is that times have changed, and oftentimes, there is more information about us online than in our own homes. We should have the right to keep that information private. Although the data is available to internet companies, internet companies do not have the power to arrest you on your own, but the government does. The collection of data can fall under the Fourth Amendment depending on who is collecting it. If I could amend the Fourth Amendment, I would make a point to differentiate what rights people have regarding the security of their physical property versus their digital property.

The Declare War Clause and Its Multiple Interpretations

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America’s primary military conflicts were fought without formal acknowledgment during the immediate post-ratification period. In the early post-ratification period, the Declare War Clause was interpreted to limit the President’s power to declare war independently. The Clause requires a formal declaration of war from Congress for the United States to use force against another country.

Many founders saw this clause as an essential limit on the President’s power and a way to ensure a formal acknowledgment of war was required before the country engaged in military conflicts. The meaning of this text, and its intention, is that The Constitution grants Congress the sole power to declare war. However, there have been various interpretations of the true meaning of the clause. There are four instances where the President can engage in military activity that complies with the Declare War Clause. First, the President may use military force if specifically authorized by Congress.

Second, the President can independently engage in disputes if it is in response to an attack on the United States. Third, the President may use the Commander-in-chief power and other constitutional powers to deploy U.S. forces in situations that do not amount to war. Finally, the President can use force under the authority of the United Nations, which some people have argued can substitute for approval by Congress.  

Scholars and commentators have multiple interpretations of this clause. Some commentators have stated that presidents have claimed authorization from informal or indirect congressional actions, such as approval of military spending, assent by congressional leaders, or even Congress’s failure to object to ongoing hostilities instead of formal direct authorization. In addition to attacks on U.S. territory, defensive responses can extend to attacks on U.S. citizens, forces abroad, or U.S. allies and U.S. interests. 

Multiple scholars have claimed that presidents can initiate the use of force independently without the consent of Congress. For example, President Truman ordered U.S. forces into combat in Korea in 1973, and President Obama used air strikes to support the ouster of Muammar Qaddafi in Libya. Regardless of the original meaning, these examples have established a modern practice that allows the President to have a good amount of independent military power. In the Prize Cases of 1863, the Supreme Court supported Abraham Lincoln’s decision to blockade the Confederate ports following the attack on Fort Summers. On April 19 and 27, 1861, Lincoln issued decrees authorizing a blockade of Confederate ports, yet Congress did not officially recognize a state of war until July 13.

People argued that Lincoln exceeded his constitutional boundaries, but the Supreme Court decided he acted within his rights. While Congress could declare war, it was the President’s responsibility as commander-in-chief to respond to attacks and resist insurrection. This clause offers a debate over a ruler’s constitutional power and how there needs to be a checking system to limit them. Monstisque highly agreed with the notion of checks and balances and concluded that the best form of government was one in which all branches of government were separate and kept each other in check to prevent any branch from becoming too powerful. Although this clause is not a direct product of the checks and balances, the sentiment is the same.

The Constitution gives Congress this executive power to ensure the President cannot abuse his position. The most convincing interpretation is that presidents can independently engage in disputes as a defensive measure to protect the nation’s security. If an external force poses a threat to the integrity of American citizens, a defensive reaction is mandatory for the safety of the country.