By Judge Andrew Napolitano
Is the CIA in your kitchen? If this question had been asked by a fictional character in a spy thriller, it might intrigue you, but you wouldn’t imagine that it could be true in reality.
If the Constitution means what it says, you wouldn’t even consider the plausibility of an affirmative answer. After all, the Fourth Amendment to the Constitution was written to prevent the government from violating on a whim or a hunch or a vendetta that uniquely American right: the right to be left alone.
Everyone wants, at some point in the day, at some places in the home, to be left alone. The colonists who fought the war of secession from Great Britain were no different. But that war and the wish to keep the government at bay had been heightened by the colonial experiences involved in the enforcement of the Stamp Act.
That law, which applied to the colonies and not to residents of Great Britain, required that government stamps be purchased and printed on all legal, financial and even political documents in the possession of every colonist. The enforcement of that law — which was done by British soldiers who entered private homes armed not only with guns but also with search warrants that they had written for themselves, which Parliament authorized them to do — was so disturbing and resulted in such anti-British political animosity that Parliament eventually rescinded the act.
But the damage to British rule had been done, and it was irreparable. After the Founders won the Revolution and wrote the Constitution and added the Bill of Rights, they rested in the assurance that only judges could issue search warrants “particularly describing the place to be searched and the persons or things to be seized,” and that judges could only do so if they found probable cause of criminal behavior in the place the government targeted.
The war on drugs has regrettably weakened the intended protections of the Fourth Amendment, and the Patriot Act — which permits federal agents to write their own search warrants — has dealt it a serious blow. That act, which has not yet been ruled upon by the Supreme Court, fortunately has not yet animated the Supreme Court’s privacy jurisprudence. Last year, the court invalidated the police use of warrantless heat-seeking devices aimed at the home, and it will probably soon invalidate the warrantless use of GPS devices secretly planted by cops in cars.