By RICHARD MEEHAN With ANDY THIBAULT
The Cool Justice Report
www.cooljustice.blogspot.com
Jan. 12, 2007
EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
At a time in the late 18th century when insurgent farmers labored to define civil rights and liberties for an infant republic a major focus was the unabated practice by the agents of England's monarch, King George III, to ignore the privacy and sanctity of a person's home. British troops entered dwellings without prior lawful authority searching for weapons of the growing insurgency.
Although abolished more than 100 years earlier, the memories of England's infamous Star Chamber lingered. Created by Henry VII in the 15th century, this secret tribunal was used and abused by succeeding monarchs until the reign of Charles I. The abuses of the Star Chamber became so extreme that Parliament eventually abolished it in 1641, leading to the execution of Charles I. In the annals of civil liberties the Star Chamber came to stand for the excesses of judicial power wheeled in secret.
King George III and Parliament sought to exercise greater dominion over the colonists with the passage of two laws, The Quartering Act, which required colonists to house British troops; and the Navigation Acts, which gave rise to the dreaded Writs of Assistance. The Writs were a major impetus for the American Revolution. The Writs were permanent, transferable grants of authority to enter and search any building or dwelling without cause. The Writ holders were essentially above the law. They could search any place on a whim and were not responsible for any damage caused.
The Writs also became the major impetus for the creation of the Fourth Amendment to the Constitution. This amendment established the right of the people to be secure in their homes from unreasonable searches and seizures, requiring the issuance of a judicial search warrant founded upon what the Framers called "probable cause." Succeeding generations of judicial opinions refined the concept of probable cause and the established the concept of the Exclusionary Rule.
Probable cause is generally regarded as reasonable grounds to believe that an item of evidence sought is located in the place to be searched. The Exclusionary Rule prohibits the use as evidence of any thing obtained by law enforcement in violation of the rights guaranteed by the Bill of Rights. In recent years the rule has been eroded as judges have sought to balance concerns for public safety against the privacy rights assured by the Fourth Amendment. The reach of this amendment and the extent to which searches are invalidated are fluent, ever-changing concepts, constantly scrutinized by courts.
Since Sept. 11, 2001, we have come to experience greater intrusion on the liberties guaranteed by the Fourth Amendment. Living in an atmosphere of fear for the security of our homeland, some have welcomed actions by President Bush and Congress, in the name of national security, such as detention of suspected terrorists without judicial intervention and the use of electronic surveillance without prior judicial review.
The Patriot Act, recently reviewed by Congress, provides broad authority in the name of national security. Elected representatives, federal judges and legal scholars have debated the extent that national security should be allowed to erode the liberties protected by the Bill of Rights. To extent to which the president should be allowed, by executive fiat, to further intrude upon or disregard these personal liberties has become a growing national debate as well.
On Dec. 20, 2006, Bush signed into law what appeared to be a postal reform bill. Seemingly innocuous on its face, the actions was accomplished with the issuance of a signing statement by the president to construe a section of that law to permit the opening of sealed mail "which provides for opening of an item of a class of mail otherwise sealed against inspection in a manner consistent ... with the need to conduct searches in exigent circumstances." The president cited the need to "protect human life and safety against hazardous materials and the need for physical searches specifically authorized by law for foreign intelligence collection."
Democrats and civil libertarians have decried the statement and raise concerns that sealed mail of American citizens will be subject to surreptitious opening and inspection without restraint. They condemn what is believed to be a burgeoning trend by Bush to expand upon the executive authority far beyond that intended by the Constitution. Critics further rebut claims by the administration that such power is needed in exigent and emergency circumstances to prevent the "ticking time bomb," noting that the emergency search warrants can be obtained immediately from judges or the Foreign Intelligence Surveillance Court.
Abuse of civil liberties by a zealous 18th century monarch spawned the creation of the Fourth Amendment. Are we witnessing the same erosion of liberty by a new King George? A group of colonial farmers decided that there should be judicial restraint and checks upon the unfettered exercise of executive authority. The very foundation of our democratic society is the constitutional principle of checks and balances.
Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website, www.meehanlaw.com
Andy Thibault, author of Law & Justice In Everyday Life and a private investigator, is an adjunct lecturer of English and a mentor in the MFA writing program at Western Connecticut State University. Thibault also serves as a consulting editor for the literary journal Connecticut Review. Website, www.andythibault.com and Blog, http://cooljustice.blogspot.com
Law & Justice In Everyday Life by Andy Thibault at Amazon.com
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