"How We Got Here"
by Eric Peters
"America is in trouble because Americans got lazy. Not so much physically but morally. They began to care more about some passing thing than about the things that truly matter; the things that made America unlike other places. Better than other places. Things like principles; the plain meaning of words. The Fourth and Fifth Amendments, especially. Which were (past tense deliberate) laws written to articulate and protect principles that matter.
It gradually became more important to– as Thomas More’s character in the play, "A Man For All Seasons" put it– cut down all the “trees” (laws) that sheltered the individual for the sake of making things easier for the government.
For example, the Fourth Amendment’s prohibition of unreasonable searches– defined in sane terms and plain English as any non-specific search of people at random, who’ve not done anything to suggest they may have committed a crime. Fishing expeditions, in other words. The idea was that the government should have to– in the first place– substantiate suspicion. It wasn’t enough for a cop to say– I don’t like your looks. He had to be able to articulate some definite thing (evidence) that gave him reason to believe you had committed or were about to commit a crime.
Today, cops stop people at random, without any specific cause at all. Without even having to say they don’t like their looks. It is enough that they are cops. And that you are not.
It was once the case that prior to a physical search of your property, it was legally necessary to obtain a search warrant– a piece of paper issued by a judge, who was supposed to issue the thing only if the investigator asking for it could present some definite thing (evidence) that supported his asserted suspicion of criminal activity. And the warrant had to be specific, stating clearly who was to be searched and what and where. This was to prevent something that used to be routine in the colonies under the British– the general writ, which empowered King George’s minions to search anyone, anywhere for anything.
Today’s redcoats wear blue (and lately, black). They search whomever, whatever, whenever. We are even coerced into witnessing against ourselves via threats that failure to do will bring down separate charges and punishments.
Is this America? I do not recognize it as such. How did we get to this point? The change occurred gradually but has become a juggernaut for the simple reason that precedent becomes routine. Once accepted, an affront is forgotten. It not only becomes accepted– it becomes acceptable to do it again. (Which, as an aside, is why this Obamacare business is so important. If it stands, if Trump does not repeal– not replace– it, it is certain we will shortly be forced to also buy other forms of government-mandated insurance; for example gun insurance, if you want to own a gun.)
But when did it begin to become acceptable? Probably when the Supreme Court gutted the Fourth and Fifth Amendments to placate “moms” who were “mad” about drunk driving. This was back in the ’80s, when it was still legally necessary for a cop to have specific probable cause– weaving across the double yellow, for instance– before he could turn on his lights and pull you over.
This of course made it inconvenient to arrest and cage people who may have had some drinks but were not “drunk.” Back then, you could drink and drive and– provided your driving gave no cause to suggest impairment– you were free to continue driving. Apparently, competent driving aggravates people who are in fact much more opposed to drinking.
And so, checkpoints– dragnet style. At which every single driver would be (and is) forced to stop and– in blatant Fourth and Fifth Amendment rape– submit to a random (and thus, unreasonable) search and prove they are not drunk, according to an arbitrary standard (BAC level) without the cops having to even assert that their actual driving was somehow “impaired.”
It also became the legal obligation of the people forced to stop at these checkpoints to provide evidence to be used against themselves in a criminal prosecution. The court ruled that you must submit to various tests supposedly designed to establish drunkenness and that failure to provide evidence was (and is) a crime in itself. The burden of obtaining evidence was lifted off the shoulders of the accuser– who could now claim that failure to provide it amounted to proof of guilt.
Even if it is later determined– as a result of the various tests, which you may be forced to submit to (including forced blood draws) that you were not, in fact, “drunk” (and perhaps had not been drinking at all) you will still be prosecuted for your failure to assist in your own prosecution.
The court came up with a truly Orwellian concept they called implied consent– which is like sort-of rape. You either consented– or you didn’t.
The courts saying you have given implied consent to be stopped and searched at random by dint of driving, or because you got a driver’s license (which you had to get) is an outrage upon words as much as it is upon rights. How is it any different than asserting a woman who has gone out on a date with a man has consented to have sex with him? If anything, it’s even more outrageous in the case of driving and implied consent, because in the case of the couple, they both agreed to the date part of the thing.
No court would enforce a contract upon you whose terms you had not freely consented to. A contract agreed to under duress– that is, under coercion– or which contains codicils you, the signer, are not made aware of prior to signing, is by definition not binding. Except when the court decrees otherwise– because “moms” were “mad.” And also because it opened the door to more and worse, which I am certain was the true purpose. Have you been to an airport recently? I assume you know that literally every keystroke you make, every site you surf, every search, your emails and Skypes and phone calls and texts are all of them recorded, the “data” used to profile and keep track of quite literally everything you do, even though you’ve done nothing illegal to warrant it.
It had to begin somewhere. Arguably, it began some thirty years ago, when it became ok to stop motorists at random in the name of apprehending drunk drivers. Henceforth, all drivers would be presumed drunk until they proved otherwise.
Is it really surprising that we are now also presumed to be terrorists until proved otherwise? At the airport, online. Everywhere. Voila, we find ourselves living in an authoritarian state in which making it easier for the government to arrest and successfully prosecute people for something, for anything is considered desirable. As opposed to the old American idea that people ought to be free to be left alone unless they have given damn good reason to suspect they’ve committed a crime of some kind. That the burden of proof ought to be on the government rather than proving one’s innocence the obligation of the citizenry.
But these are ideas that seems as quaint today as free association or using cash to pay for things and being allowed to actually own things without having to pay taxes in perpetuity to maintain the fiction that we own those things. Maybe one day our children will recover the sense we appear to have lost.”
“A Man for All Seasons”, Full Movie (1966)