Trump search warrant and the dark side of law enforcement

The execution of a search warrant at former President Donald Trump’s home brought to mind a dark and dangerous side of law enforcement. The idea of ​​government agents rummaging through anyone’s private property against their will raises the specter of British soldiers kicking down doors in colonial America.

Their most notorious invasion of private property was a subterfuge, perpetrated by the British Parliament, which sought to remind the colonists that the king could enter their home through his soldiers whenever he wished.

In 1765 Parliament enacted the Stamps Act, which required government stamps – these were actually inked images of government seals, closer to what is seen when a rubber stamp is used – on all the papers in the possession of the settlers. This included letters, financial and legal documents, newspapers, pamphlets and even posters meant to be nailed to trees. To facilitate the enforcement of the Stamp Act, Parliament enacted the Writs of Assistance Act.

Much like the U.S. Foreign Intelligence Surveillance Act, the Writs of Assistance Act allowed British agents to obtain search warrants for settler homes based on government needs and without identifying the name or address of the owner or even the object sought by the search.

These were general warrants. Their range was unlimited, since they allowed the wearer to search wherever he wanted and grab what he found. Some students at the College of New Jersey – now called Princeton University – calculated that it cost the UK government more to enforce the Stamp Act than the revenue generated from the sale of the stamps. We now know that power, not income, was the goal of this dreaded law.

The violent colonial reaction to the enforcement of the Stamp Act led to its repeal by Parliament after only one year. But the Assistance Warrants Act – authorizing the execution of general warrants – remained in force until the departure of the British in 1781. And general warrants were not prohibited until the ratification of the Fourth Amendment in 1791 .

The Fourth Amendment was written to protect that quintessentially American right to be left alone. The violation of the right to be left alone generally involves two fundamental freedoms: the right to privacy and the right to property.

Privacy is a natural right because there are aspects of human existence and personal behavior that are not subject to government. Natural rights come from our humanity. The natural right to property has three aspects – the right to use the property, the right to alienate it (rent, pledge or sell) and the right to exclude whoever and whatever the owner wishes – including the government.

As natural rights flow from our humanity, they can only be violated when we renounce them or waive them by our violation of someone else’s natural rights. When James Madison drafted the Fourth Amendment, he rejected the waiver standard and instead chose the government-friendly probable cause standard as the only basis for a government attack on property rights.

The government claims it can examine your emails, bank accounts, and medical and legal records at will simply because it claims you have waived your interest in placing them in someone else’s custody. It is, of course, a joke. These custodians have a legal obligation to keep your records private. Yet to physically gain access to your property in defiance of your will, the government must meet Madison’s probable cause standard.

This standard requires showing to a neutral judge that it is more likely than not that a crime has been committed and that it is more likely than not that evidence of that same crime can be found at the location at search or that the person or thing be seized. These standards come directly from the wording of the amendment itself.

Does the probable cause standard adequately protect property rights? It’s not. This standard involves a weighing and balancing test of the nature of land ownership against the need for evidence claimed by the government. It weighs the harm done to property rights by a government invasion against the harm done to the government by depriving it of the fruits of its planned invasion.

The very concept of weighing a natural right against a governmental need is totalitarian. The government needs whatever it wants, while our rights are inalienable unless we give them up. A natural human right always supersedes the will of a government. Thus, the only norm that morally justifies government invasion of private property is a waiver of violation of the natural rights of others.

For example, if a bank robber rushes home with the stolen loot, he has given up his ownership rights to the house until he has been arrested and the loot has been recovered, because he has violated the natural rights of depositors in the bank and the right of the bank to exclude him from its property. If the government cannot demonstrate a waiver and violation of a natural right, then the owner – even if he is the wanted bank robber – can morally exclude the government from his property.

Because privacy and property are inalienable rights and the government is an artificial creation based on the monopoly of force, when the government wants to enter private property against the will of the owner and asks for a warrant from a judge, the owner’s natural rights and the needs of government can never be balanced.

Even when government seeks to demonstrate renunciation, government should be presumed to be wrong, and all inferences and prejudices should be drawn against it because the essence of government is the denial of freedom.

If we take rights seriously – which government never does – natural rights are inalienable. Government needs change with political winds.

• Andrew P. Napolitano is a former law professor and New Jersey Superior Court judge who has published nine books on the United States Constitution.