Do You Parse*?

In regard to the fourth amendment, specifying the need for warrants in searches, some would say that the "fly in the ointment" is the word unreasonable. If a search can be construed as reasonable then perhaps a warrantless search is warranted, so to speak. I think this position is unwarranted. If you take the amendment as a whole, the implication seems clear that obtaining a warrant is what makes it reasonable: an officer of the law must convince a sitting judge of the necessity and legal standing of his proposed search/seizure and getting the judge to agree validates the search. It's not good enough that the searching party (cops, FBI, NSA,etc) claim to have the legal right vested in them by authority of the King (or President, or even a misconstrued law). All of us, most of the time, have reasons for our actions. These reasons, in themselves, don't make the actions reasonable. Picture the Red Coats breaking down your door and going through your things, yelling "In the name of George III, we...." This amendment, this constitutional protection, was not about a colonial ruler; it was meant to protect us against our own government. For, truth be told, our founders' concern was tyranny.

Yet, we are all familiar with warrantless searches. In the past year I've personally observed about 15 such "stop and frisk" incidents involving pedestrians and the local police. It's obvious that the courts have decided that a sworn officer of the law, observing what he believes to be illegal behaviour has sanctioned stopping, cuffing, searching and investigating (through a computer) otherwise innocent citizens. So, the courts have held that getting a warrant is not necessary to make a search reasonable. (Throughout history, there have been many "books" of law and religion, but not so many commentaries, and the ones that stand out - at least to a Westerner - are rabbinical commentaries on the Torah, classical scholars of Catholicism, such as Augustine and Thomas Aquinas, and the US Supreme Court. Perhaps I'm biased but I don't think the Supreme Court fares well in the comparison.)

Two things have troubled me about "stop and frisk" incidents. In the fifteen I watched, young black men were stopped (I inferred) because the cops thought they had illegal drugs and in every case and I mean every one of them the police let the young men go. Sooooo, the cops weren't doing their jobs and let crooks walk with only a warning? Or perhaps the cops misconstrued what they had seen? Or the cops were bigoted? Certainly, failing 15 out of 15 times made their searches ostensibly unreasonable.

And what troubled me here was the undermining of authority. Many people, Hannah Arendt comes to mind, have contrasted power and authority: power is imposed from above and at least threatens violence, while authority arises from below. None of us likes to get our comeuppance but we are trained from birth to accept guidance. Your kids don't like the rules you've set but they obey them: they accept your authority. They are angry and confused but they accept your authority as legitimate. If they don't and you're forced to use or threaten to use force, to that extent you've lost them. All well-functioning families, as well as societies, have this same experience. Decades ago, in the infamous trial of the Chicago Seven, Bobby Seale of the Black Panthers did not recognize the legitimacy of the court or the judge (Julius Hoffman?) and wound up gagged and bound to his chair during his trial. And what of the young men I watched this year, stopped and harassed by the police for ostensibly doing nothing? I found myself hoping the cops would find drugs just to legitimize their behaviour. If people don't, or won't or can't, accept the legitimacy of the State and its enforcers then we are in deep trouble. Social cohesion depends on this.

The second thing that troubled me is the extension of the State's power over us. For those who have supported "conservative" causes or leaders such as Reagan, I would hope they are now lined up with the "liberal" ACLU. If "our" government is nowadays allowed to cast wide, indiscriminate nets looking for illegality, without cause of any kind, let alone probable cause, for investigating us, then tyranny is knocking at our doors. It would mean the secret police are looking for suspects instead of investigating known suspects. I don't remember the precise details but in England in a small town there was a heinous crime and the police required DNA samples from all male residents. In this country that would not be considered acceptable. But give it time. The way things are going such invasions of privacy can't be far off. The logic of "our" Administration's position could require all of us to have bar codes tattooed to our wrists or, more likely, RFID tags implanted under our skin.

Some of us oppose this trend. Even among Christians, I would hope there would be widespread opposition. Doesn't one need free will and choice to attain heaven? And aren't we all subject to temptation? Few of us are murderers but many more of us have thought about it. And even the President is human, isn't he? Is he purer than us? Or is he a "used car salesman?" I think the basic thrust of democracy through history and particularly with our country's founders is: if you can't trust yourselves how can you trust your leaders?

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* Parse: To break (a sentence) down into its component parts of speech with an explanation of the form, function, and syntactical relationship of each part.
Parsing is what, decades ago, kids did in school diagramming sentences and is something linguists and computer scientists still do. It's argued here that this is what our Supreme Court also does and that we ourselves need to get good at if we really want self-government.