We do not live in a national system of government, we live in a federal system of governments! And the two cases discussed briefly below are an example of why the lack of internalization of this basic principle could very well have the consequence of a loss in the current battle for freedom in America.
We are often wasting our resources over a lost battle in Washington D.C., and losing, often by default, many battles that could be won closer to home. We must start looking to the more localized fights for freedom to actually begin to make more of a difference.
There recently was news that is worth celebrating:
On February 27 of this year, The Washington Supreme Court, in two separate 5-4 decisions, has ruled that the protected “Right to Privacy” extends to text messages and have reversed two “criminal” drug convictions that were both based on evidence acquired by a detective, without a warrant, from other people’s personal phones.
To succinctly sum up the decisions, The Court, in majority opinions both authored by Justice Steven Gonzalez, essentially considered there to be a reasonable expectation by Washington citizens for privacy in their interactions via private text messaging; just as there would be with letters or phone calls. The Court saw the nature of that fact as trumping the State’s defense and claim that there was no reasonable expectation of privacy once text messages are sent out into cyberspace.
There are lots of interesting details to the case that this author will not be going into here, but are recommended for further reading, and better understanding of these cases and the Court’s specific ruling standards. They can be found by clicking on the case names found below.
RELEVANT CONSTITUTIONAL PROVISION ; COMMENT ON CONSTITUTIONAL DICTION
The ruling was based in part on the Washington Privacy Act, as well as on Washington’s Constitutional provision as found in Article One, Section Seven, which it states that:
“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
This provision is, as is probably obvious, not worded similarly to the Fourth Amendment – such as the relevant section as found in Article One, Section Fourteen of the Utah Constitution. In fact, this specific protection doesn’t even touch the issue of specific warrants – the very thing that the Court found lacking in the use of those text messages by the State in their now reversed prosecutions.
Obviously, the provision is/was enough for justice to occur in these cases. And in fact, with the lack of the vague term of “unreasonable”, the Washington Constitution seems to be prima facie more robust in its limitation on the government of Washington than the historical/legal precedent surrounding the Fourth Amendment. Simply put, the wording, even though different and less familiar, may not be worse. Perhaps, the ruling today is, in part, evidence for such an argument.
Yet, that point is still very secondary to a deeper and more broad point that should be made. The more critical point at hand is that Constitutional wording is not about the creation of fundamental rights; but merely about finding the most effectively written document possible pertaining to limiting the ability of the government to infringe on those rights – even under the guise of statutory, or so-called “legal” “authority”.
CONSTITUTIONS TRUMP STATUTORY CODES; AND YET NEITHER ARE SOURCE OF FUNDAMENTAL RIGHTS
Constitutions certainly trump statute. And in fact, Constitutions are the framework for that statutory ability. The Constitutions are the formal documents of the government’s creation, let alone the piece that is the legislative body with the assumed power to make statute. Recognizing that the Constitution is, therefore, the source of that legislature’s existence, let alone of their ability to make statute, how can one logically argue against the fact that the statute cannot lawfully be repugnant to the principles behind, and the protections enshrined in the document that is the source of that ability?
The people of Washington chose the wording found above, while the people of what became “the State of Utah” chose wording closer to that of the Fourth Amendment to the U.S. Constitution – both pertaining to the protection of those very same rights associated with “the right to be left alone”, or so-called right to “privacy”. The point that should be realized is that it is the same self-existent rights that are being protected by both, regardless of the wording differences between the Washingon and Utah Constitutions. In fact, the same rights which exist regardless of whether or not the Constitutions even exist themselves, or are even honored. Our rights and duties are not tied to a piece of paper, regardless of how well they are protected, or even described, on a piece of paper.
That is one reason why the question as to which worded section better protects those same rights is secondary to the recognition of the right’s existence, and the fact that it’s protection is the sole end of the government to begin with. The Constitutions, even when ignored, are very much issues that fall behind in order of importance when it comes to the people’s rights and freedoms themselves.
In fact, the point of systemic ignoring of the Constitution is one of the main reasons why attempts to amend the Constitutions in the current political climate are nearly laughable. It is, unfortunately, very easily apparent that the Constitutions, as currently constituted, are so often ignored and disregarded. So, that being said, how could anyone reasonably claim that they could improve the system by adding to an ignored document? That is not to say that the Constitutions cannot be improved in many cases, it is just to point out the obvious folly in thinking that more Constitution is a solution to the problem that the piece of paper obviously didn’t prevent in the first place.
At the end of the day, the Constitutions are merely pieces of paper. It is up to the people, themselves to enforce them, and to give them actual meaning, applicability, and power.
A POINT TO CONSIDER ON AN ADMITTEDLY SOMEWHAT OVERSIMPLIFIED TALE OF TWO COURT SYSTEMS ON A PARTICULAR GROUP OF ISSUES
Using the Washington Constitutional provision quoted above – which some consider to be more broad in protection “privacy” than the Fourth Amendment to the US Constitution – the Washington Supreme Court obviously understood enough, and had enough foresight, to rule based upon the obvious intent behind even having that explicit constitutional protection in the first place. (Even though they were 5-4 decisions.)
Compare that to the Federal Court System – including the Supreme Court itself – and their obvious butchery when it comes to the Fourth Amendment, the way that it is worded, in Federal case law. That court and it’s precedent pertaining to Fourth Amendment issues is an example of absolute neglect and outright ignoring of what is a very explicit standard in wording, with very easily ascertained meaning and intent.
So often the Fourth Amendment is disregarded, nearly always in favor of the police power of the government that should be limited by such principles, with the justification that the end justified the means. With the word “unreasonable“, the people gave the Federal Government an inch, and with that inch they have gone a mile!
Notice the hint of irony? The Washington Supreme Court rules relatively clearly based upon good principle, even with wording that differs the Fourth Amendment, when obviously the wording of the Fourth Amendment, the way it is written, has not stopped a maze of deliberate ignorance (or more clearly, ignore-ance) that is found within Federal Case law. In that sense, the Washington Supreme Court – absence the direct applicable relevance of wording such as the Fourth Amendment – has actually ruled based upon the spirit that inspired such an amendment – while the Federal Courts – with explicit Fourth Amendment applicability – have rarely realized the principles in their rulings and opinions.
This shows that it is a nearly meaningless exercise in comparing the differing levels of effectiveness in relation to the various wordings and their subsequent legal effects, as found in different Constitutions, if there is a lack of respect and a honor for those very documents themselves. If there is an absence of the spirit of freedom in the people and their representatives, which spirit originally inspired such limiting documents such as the Constitutions in the first place, the Constitutions become merely dead letters.
There is good news from Washington that I hope you, as readers, can now more fully appreciate. In fact, rulings with related effects of protecting the people’s reasonable expectation to privacy have also recently occurred in Massachusetts and New Jersey.
I hope that this good news serves as a good reminder to the people that there is perhaps still hope in the State systems if we will stop focusing our attention and resources on a lost battle in Washington D.C.. That being said, I also hope that the good news simultaneously comes with the sobering dose of reality that, due to all the focus and attention given to affairs far away in D.C., we could very well lose the opportunity to salvage the systems closer to home.
“We” may be focusing so much on an already lost battle far away that we could very well lose the battles which aren’t even over yet closer to home! Like the fictional literary example of the Eye of Sauron in the famous book series, the Lord of the Rings, we could lose the war simply by being distracted and not truly focusing our attention on the real battles at hand – close to home, and in the here and now!
We live in a federal system of nations, and it is about time we started to act like it! Let’s turn our attention to the fight for freedom here at home amongst our various nations, or States. Let’s, instead of focusing on federal courts, do the best we can to bring about good and constitutional cases here at home for others to rely on here locally! It was done in Washington in these two cases, it can be done here if there are people ready and willing to work for it.
But, ultimately, it is entirely up to us.