The Fourth Amendment is Dead.

As I was reminded by a recent article on Simple Justice, the Fourth Amendment to our Constitution is dead. Sure, there may be some signs of life, but that is just fake motions put in place by conservative jurists to make people just think that the Fourth Amendment is still alive, ala Weekend at Bernies.

As was pointed out at Simple Justice, arguments in favor of the Fourth Amendment, and specifically for the exclusionary rule, are notoriously weak. More to the point, I think they miss the point. The focus seems to be all about police misbehavior - and whether or not it was intentional misbehavior. Which is just what the conservative hacks like Scalia want, because then they can just get rid of that pesky Fourth Amendment altogether by ignoring or not seeing anything the police do as deliberate misconduct - forgetting for a moment that if there was misconduct, just how would the Supreme Court ever know - I'd expect the police would be pretty damn good at covering their tracks.

But that is a red herring anyway, because nowhere are the police mentioned in the Fourth Amendment. The Fourth Amendment does not mention the police or police misconduct because that was not what it was written for. Our founding fathers were concerned about government misconduct, not police misconduct. They did not want the King or any soveriegn getting into their business without a damn good, documented reason, in advance. Somehow this gets lost. It isn't about police conduct, it is about limitations on GOVERNMENT conduct. The government includes not just the police, but the prosecutors and yes, the courts, too.

I mean, looking at individual details, this can be seen, but never are the pieces all put together when analyzing a Fourth Amendment issue. Sure, it is acknowledged that the police need to follow the Constitution. But so does the prosecutor. The prosecutor can't get around it by just going in person and searching your home. That isn't police conduct at all, but it is still covered. And the judge can't go snooping around your house either. Sure, a judge can sign a warrant, but that has to have a good basis in support of it. The judge can't just go snooping around "just because." Thus, looking at police conduct is missing the point. It isn't police conduct. It is government conduct. It isn't about negligence or police malfesance or really anyone's intentions at all. It is a flat limitation of power on our government.

The simplest and most direct way to reflect this is to simply say that unless all of the proper steps were followed (i.e. probable cause leading to a warrant, in advance) - then as far as the government is concerned, the evidence doesn't exist, because to find otherwise is to allow the government to do something which the Constitution flatly says it has no power to do.

The exclusionary rule shouldn't be about deterrence of misconduct. Sure, that should be a good side benefit, but really, the rule should be about simply preventing the government from violating the constutiton. Focusing on this eliminates all of the (often bogus) concerns about what the police were REALLY thinking when they violated your rights. That shouldn't matter. That doesn't matter. The Constitution doesn't give any exceptions. It simply flat out says the government can't. Period. If the government can't, then it can't. Honest mistake? Tough. The Constitution limits the government. The people are supposed to be soveriegn.

And maybe, just maybe, if the Constitution were actually followed again, people could actually have some privacy in their cars. As opposed to now, where bascially stepping into a car, or even being near one, is now taken by right-wing jurists (which most are) to be equivalent to a signed and notarized consent for any and all government officials to give you and your car an anal cavity search.