Two hundred thirty eight years ago this week, a patriotic group of farmers, merchants, preachers and lawyers gathered in Philadelphia. History shows this small group included the finest collection of political philosophers the world has ever known. They were willing to risk their fortunes, life and limb in pursuit of freedom.
These men were raised in an Age of Enlightenment. "Because the King says so," may have been good enough for some Loyalists, but not for our Founders. The people existed not for the benefit of the king's government, but the other way around. They believed in reason and the freedom it both inspired and required. If men were angels, no government would be necessary, but men aren't, so governments must be formed in a way to protect people from one another - and to protect people from government itself.
Since the Magna Carta in 1215, British subjects enjoyed unprecedented freedom from arbitrary government power. But not all of the "rights of Englishmen" were recognized for colonial subjects. One of the earliest examples of British overreach involved the widespread use of "writs of assistance," legal documents which allowed colonial officials to search the belongings or homes of colonists anytime and anywhere they pleased - often for innocent items deemed illegal under controversial British laws. This enraged the colonists.
As Chief Justice John Roberts explained last week: In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams attended, and would later write: "Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance." According to Adams, Otis's speech was "the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born."
Since the Fourth Amendment was added to the Constitution with the Bill of Rights, our Supreme Court has been the last guardian of freedom against newfound technologies that amount to modern day writs of assistance. The traditional liberal-conservative divide at the court centers on competing views of the Constitution: either as a "living document' which invites liberal judges to shape social policy without a vote, or as a static document, grounded in the rule of law, under the concept of originalism. The Fourth Amendment, however, is a constitutional bridge across this divide. It protects our right to be secure from "unreasonable" searches and seizures and requires probable cause before a judge may issue a warrant to allow a search. With advancing surveillance technology, the Supreme Court must constantly consider how intrusive technologies, which our Founders could never have envisioned, reconciles with language that was added to our Constitution more than 200 years ago.
In the past 20 years, the analysis has become more difficult and important. Today, nearly everything is connected - and trackable. Smart phones, for example, can contain every book we've read, contact information for every person we know, and a history of every communication we've made in the past few years. The coming "Internet of things' will add even more to your data profile. It is not difficult to imagine a future in which your every movement, purchase, meal, bathroom break, communication, and thought will be recorded somewhere by someone or something. In many ways, we already live in that world. And if private companies have access to that information, you can bet the government won't be far behind.
If we don't curtail government power, private companies may create a turn-key solution for totalitarianism. If freedom means more than not being locked indiscriminately in prison, it must also include the ability to think, converse, write, travel, and associate free from concern that the government is watching. As the Supreme Court explained, "the right to be let alone" is "a fundamental human right," "the most comprehensive of rights and the right most valued by civilized men."
Thankfully the Supreme Court has entered the breach. Last year, it ruled that police could not place a GPS device on a suspect's car unless they had a warrant. Last week, it unanimously ruled that you have a right to privacy in the digital contents of your cell phone which prohibits police from accessing it without a warrant.
As your state representative, I try to view policy proposals from both a practical and a philosophical point of view. It's not often, however, that the Legislature reviews an issue that goes to the very heart of the Revolution or to "a fundamental human right." It's even less often that the people get to vote on such an issue.
Amendment 9, which will appear on the August ballot, goes to the very heart of what I believe it means to be an American. It asks: Shall the Missouri constitution be amended so that the people shall be secure in their electronic communications and data from unreasonable searches and seizures as they are now likewise secure in their persons, homes, papers, and effects?
Opponents argue that this measure would impair law enforcement's ability to gain access to digital information. But they conveniently ignore that Amendment 9 only limits the government's ability to track or access electronic communications and data in an arbitrary fashion. If police have a reasonable suspicion of criminal activity based on articulated facts, they should simply apply for a search warrant - which judges routinely grant. And just as technology is increasing government's ability to intrude, so too is it accelerating the process of obtaining a warrant. Amendment 9 merely seeks to balance the playing field. Because without privacy, there is no liberty.
In August, please join me to stand on the shoulders of James Otis and our Founders to update the Missouri Constitution's equivalent of the Fourth Amendment. Vote yes on Amendment 9 to protect our right to electronic privacy.
State Rep. Jay Barnes, R-Jefferson City, represents Missouri's 60th District.