NCJ Number
80203
Date Published
Unknown
Length
0 pages
Annotation
In this lecture, Judge Charles Moylan reviews the English roots of American constitutional principles and urges a contemporary rededication to these ideals.
Abstract
The relationship of the modern American citizen to the Constitution is diametrically opposed to that which the founding fathers held. In the eyes of the Crown, the latter were lawbreakers who designed new laws in their own self-interest. Today, upholding constitutional guarantees often means protecting others' (e.g., criminals') rights and interests from people like ourselves. A particular case in point is the fourth amendment and its exclusionary rule of evidence. The origins of the fourth amendment protections are traced to the personality of young King George III and his active interventionism, which led to indiscriminate issuance of executive writs of assistance and general warrants both in England and in the American colonies. Although in England the radical pamphleteering and demonstrations by John Wilkes resulted in the outlawing of the executive warrant, in the colonies this was accomplished by the revolution. English forces eliminated the French threat at the Alleghenies, but they also precipitated the imposition of duties resented by the colonists. For smuggling, leading colonists were issued executive warrants lasting the life of the king. Revolutionary personalities raged against these writs of assistance, but this anger already carried the seeds of independence. The fourth amendment's protection against warrantless search and seizure is the American expression of the principle that every Englishman's home is his castle. This means that the poorest man in his cottage may bid defiance to all the power of the monarch; that the private domain may not be violated by executive whim. That this remains a cherished liberty is affirmed by a comparison of two court cases: Antik v. Carrington in 1767 in England and United States v. U.S. District Court of the Second District of Michigan, 1972. In the former, Lord Camden ruled against King George and Lord Halifax for using private papers to prove seditious libel. In the American case, President Nixon's and John Mitchell's use of telephone wiretaps to forestall domestic unrest was declared illegal by the Supreme Court.