One of the books I am currently reading is Michelle Alexander’s The New Jim Crow. There is much that disturbs me in this book because it shows how far short our justice system falls from our American ideals. One of the most disturbing revelations is the fact that a policeman who pulls me over for a burned out tail light could also subject me to a pat down and search my vehicle. Without a warrant, he or she would supposedly have to ask my consent, but how many of us would assert our right to refuse this without a warrant to officers carrying guns and trained in the use of force? Likewise, in many places I could be stopped and searched while walking merely “on suspicion” at the officer’s discretion. I’ve never had this occur, most likely because of the color of my skin, but it could, and does every day, particularly with African-Americans and Latinos, many of whom have not committed any crime. Much of this has been justified in our “war on drugs”.

The text of the fourth amendment to the US Constitution says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The searches I described above would seem to violate the plain meaning of this text–that neither person, houses, papers or effects (does this include digital effects) should not be subject to search or seizure without a warrant giving probably cause and delineating what is to be searched and seized.

In recent months, we have also heard of how online and cell phone usage has been monitored. Today, we learned this even extends to our social media use and the networks of people with whom we interact. Repeatedly, this is justified by our “war on terror” and the interests of national security.

The troubling thing is that our elected officials and even the highest court in the land have upheld these various forms of warrant-less search and seizure. While it is true that warrants do still need to be obtained in many cases, we are witnessing a growing intrusion of warrant-less searches and seizures in our lives that are eroding one of our most important rights.

Why are we not more disturbed about this? Perhaps the very ubiquity of these searches in our lives has robbed us of a sense of how our persons and effects have been laid open to examination. Every time I fly, I am subject to x-ray examination that intrusively images my body, having already shed shoes, belts, and anything metal or in my pockets (including government issued identification). My luggage is subject to search. Sure, I have a choice to consent to this but if I refuse consent, I don’t fly.

“But don’t you want to be safe?” someone may ask. Of course, I would say, but if it comes at the cost of living in a heavily surveiled society where rights to my person and property could be revoked arbitrarily at a moment’s notice does not exactly impress me as safe.

Perhaps it is that the more invidious examples of this kind of search rarely affect us (at least that we know of). For me, it is often others not of my race or socio-economic class who are subject to such searches.What troubles me is the growth of state intrusion into private life and state capacity to control our lives.  One can easily imagine growing search and seizure being justified as the “war to protect freedom”. We should not presume that because at present the suspension of these fundamental rights seem to have minimal impact upon us and only affect “dangerous” minorities, that we can hope to enjoy those rights in the future.

I’m reminded of Martin Niemoller‘s poem that illustrates why fighting for the rights of any of us are in fact important to all of us:

First they came for the Socialists, and I did not speak out–
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out–
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out–
Because I was not a Jew.

Then they came for me–and there was no one left to speak for me.