Tag: 4th Amendment

5 Political Priorities America Should Have in 2019

Kevin D’Amato | United States

Going into 2019, the political scene has undergone massive change. Following the 2018 midterms, in which the Democrat Party regained a majority in the House of Representatives, tensions have been rising. The president allowed the government to shut down over the lack of funding for his border wall. He also is already threatening to potentially do it again on February 15th. Needless to say, relations in the government are poor. This leads me to ask: What are some policy goals that the country can still pass in this political environment?

1. Criminal Justice Reform

Of course, the First Step Act did just pass. However, this is just the beginning; to assume that one bill can fix a system as bloated and broken as ours is absurd. The First Step Act, as the name implies, is a “first step” to solve our problems.

We still need to take dramatic moves in the prison system. Some things to keep in mind should be:

  • Abolishing mandatory minimums
  • Focusing less on punishments such as solitary and more on rehabilitation programs
  • Cracking down on officer malfeasance towards prisoners

2. Pull Troops Out of Military Conflict

The President stunned many, including me, when he abruptly announced he was pulling troops out of Afghanistan and Syria. The non-hawkish American population was ecstatic. Now, the only thing we need to do is hold him to it.

Mixed statements from several other Trump Administration officials have openly contradicted the President’s own words. It is Congress’s and our duty to hold the President to his words and bring our troops home.

3. End Government Spying

It often seems like the United States government outright ignores the 4th Amendment. Agencies like the NSA and FBI have made the illegal spying of American citizens commonplace. All accountability is lost when you are not aware of your own government’s actions.

The Patriot Act and FISA courts require, at the least, massive reforms. Ideally, we should move to abolish them, but this is not necessarily likely. Regardless, you have an inherent right to reasonable amounts of privacy.

As a bonus, a pardon for Edward Snowden would be nice, too!

4. Term Limits

Term limits are the most reasonable policy to enact in the United States right now. Virtually everyone that you talk to, regardless of political persuasions, believe that some sort of limitation is necessary.

Besides just getting old, crazy politicians out of office, term limits get new ideas in Washington, stop the constant fight for reelection, and partially get money-tied politicians out of the spotlight.

The Supreme Court’s 1995 decision essentially deeming term limits unconstitutional does make things complicated, but not impossible. The way forward for this plan is a rare but necessary constitutional amendment.

5. Federal Legalization of Marijuana

Let’s be honest, it’s bound to happen sometime soon.

I don’t need to go on a diatribe to inform you of the benefits of marijuana legalization. The economic, social, and political changes that would form are life-changing.

It’s about time that we let adults make their own decisions; whether it be to drink, gamble or smoke weed. As long as you’re not hurting your neighbor, freedom is absolute.


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Rand Paul is in a Bind

By Glenn Verasco | @GlennVerasco

It’s the rainy season in Thailand, which means commuters like me are primed to get wet on our way to and from work. To me, the worst thing about this is constantly having rain-soaked shoes. There are few worse ways to start your day than feeling yesterday’s rainwater seep through a fresh pair of socks as you place your feet in shoes that have not had time to dry.

As bad as monsoon shoes are, I’d take them over Kentucky Senator Rand Paul’s shoes any day of the week.

President Trump has recently nominated Brett Kavanaugh from the United States Court of Appeals in Washington D.C. to replace Justice Anthony Kennedy on the Supreme Court. Unlike Justice Neil Gorsuch, Kavanaugh’s brand of constitutional originalism does not show much respect for the 4th Amendment. For those who do not know, the 4th Amendment intends to protect Americans against unwarranted searches and seizures. Without this amendment, police and other law enforcement officials may not be legally barred from rummaging through or confiscating our property, private documents, or even our bodies without just cause.

If you want to know more about Kavanaugh’s unfortunate history with the 4th Amendment, you can listen to Judge Andrew Napolitano, maybe the most pro-liberty judge in American history, discuss it with Tom Woods here.

Rand Paul, a 4A diehard and the 50th of the GOP’s 50-49 senator majority (John McCain, who is currently unable to vote for health reasons, would make 51) finds himself in an extremely tough situation as his vote may ultimately determine whether or not Kavanaugh is confirmed. The following are what I consider to be the most probable potential outcomes depending on the choice Rand makes.

The Sellout Scenario

If Rand Paul votes in favor of Kavanaugh, he will almost certainly become a SCOTUS justice, which could put all of our 4th Amendment rights on the line for decades to come. In the process, Rand would lose plenty of pro-Constitution credibilities. The Liberty movement would pile on with accusations that Rand Paul lacks the gumption his father Ron Paul possessed, and is just a slightly better version of the swamp creatures lurking throughout Washington.

From a political standpoint, Rand would likely secure his position in the Senate if he decides to run for reelection in 2022. I imagine that the typical Republican voter is far more concerned with making sure a Liberal justice does not take the place of Anthony Kennedy than he is with the technicalities of what the 4th Amendment entails, which means Rand’s seat in the Senate, unlike his credibility, would likely be safe.

In the long run, keeping Rand’s vote in the Senate for years to come could serve as more valuable than having a perfect originalist justice on the bench as Gorsuch and the four liberal justices (a majority) seem to be on Rand’s side when it comes to 4A. In other words, Kavanaugh’s impact on the 4th Amendment may be minimal anyway.

The Swamp Scenario

If Rand votes against Kavanaugh, he may still be confirmed via red state Democrats. At least three or four senators up for reelection in November are Democrats in Trump country. These senators are often forced to part ways with their party in order to maintain their positions in Congress. Due to their sticky situation, Rand’s decision may not ultimately matter in the confirmation process.

Voting against Kavanaugh would preserve Rand’s pro-Constitution credibility, and would likely have little effect on his reelection prospects as his choice to stand is ground would cost Trump and establishment Republicans nothing.

The Hero Scenario

If Rand votes against Kavanaugh, he may not be confirmed. However, this could work out beautifully for Rand in the end.

By blocking Kavanaugh’s nomination, Rand would help preserve the 4th Amendment (at least temporarily) and bolster his Libertarian credentials. And although he would defy Trump and rain on Republicans’ parade in the short run, sunnier skies could be on the horizon.

If the GOP retains control of the Senate after this year’s midterms (and they are expected to do so), Trump will be given another chance to nominate a more pro-4A justice. If Trump’s next choice winds up being more Gorsuchian, Rand will have taken a massive political risk and won big for the country as well as himself.

The Scapegoat Scenario

If Rand votes against Kavanaugh, he is not confirmed, and the GOP loses the Senate, Trump may not get another chance to nominate a SCOTUS justice as president. If a Democrat beats Trump in 2020, and Democrats retain control of the Senate, you can bet that a “living document” justice will be placed on the SCOTUS bench, probably resulting in a liberal majority for years to come.

Under these conditions, Rand may succeed in preserving the 4th Amendment. Conversely, the 1st, 2nd, 5th, 9th, 10th, and many other rights guaranteed by the Constitution could fall by the wayside.

Rand would have committed political suicide in the process, and a future reelection bid could result in comical defeat.

Let’s hope for the best.


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What Can We Expect From Brett Kavanaugh?

By Jack Parkos | United States

On Monday night, President Trump chose Brett Kavanaugh as his nomination to replace Justice Kennedy. Now he needs Senate approval to see if we will join the Supreme Court. People across the political spectrum have mixed opinions on this issue. Most Republicans are happy to have a conservative in the court.

The Supreme Court has immense power when it comes to Constitutional interpretation. Brett Kavanaugh has the potential to change the country for better or worse. His views will be valuable predictors for the precedent he may set.

There are several issues people have been talked about a lot lately. Abortion has been a big one. Although Trump has claimed he hasn’t brought abortion up with Kavanaugh, he did promise to only nominate only pro-lifers.  Both sides of the aisle are talking about it, arguing about whether he should and will do it or not.

This begs the question: what will Kavanaugh do? Would he support overturning Roe V. Wade? It’s hard to tell. Kavanaugh has been very vague on his abortion stance. In 2006 he claimed that abortion has already been decided by the Supreme Court. However, Last October, Kavanaugh dissented in a ruling that allowed a teenage undocumented immigrant to leave custody to receive an abortion. He has supported other abortion restrictions as well. At this point, it is very hard to tell if he would overturn Roe V. Wade. He has kept his personal stance on abortion private.

The left has been very critical of Trump’s pick, though based on their past record, they tend to get mad at whatever Trump does. They aren’t the only ones criticizing though, Representative Justin Amash is disappointed as well. Amash tweeted,

Kavanaugh is not another Gorsuch—not even close. Disappointing pick, particularly with respect to his record. Future decisions on the constitutionality of government surveillance of Americans will be huge. We can’t afford a rubber stamp for the executive branch.

What is frightening is that Kavanaugh has a history of supporting warrantless surveillance. Here are some statements from Kavanaugh in November 2015 when he rejected to hear a case on the NSA unwarranted phone collection.

the Government’s metadata collection program is entirely consistent with the Fourth Amendment.

In my view, that critical national security need outweighs the impact on privacy occasioned by this program.

He already supported unwarranted wiretapping done by the NSA. It’s fair to say if there is a case regarding the 4th Amendment, Kavanaugh will take the more authoritarian approach.

Many also are talking about healthcare. In 2011, Brett Kavanaugh did oppose the upholding of the individual mandate under Obamacare. He said that the mandate was “a law that is unprecedented on the federal level in American history,” stating that the Taxing Clause “has not traditionally authorized a legal prohibition or mandate.” Conservatives and Libertarians should be very pleased with his stance on the individual mandate.

Kavanaugh also opposed the ruling in Massachusetts vs the EPA. Which ruled that the EPA could regulate greenhouse gasses based of the “Clean Air Act of 1963”, although the act did not specifically state carbon dioxide could be regulated under this act. The court gave the EPA this authority.  Kavanaugh dissented this, believing the EPA went beyond its authority. He has stated he is concerned with Climate Change, but that he knows it’s not a courts job to regulate it. Kavanaugh seems to strongly believe in the role of the court in America.

If Kavanaugh gets Senate approval, we could see a change in the court’s rulings. Some for better some for worse. What we need is for him to protect the Constitution and preserve our liberties.


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Libertarians Should Oppose Brett Kavanaugh

By Kenneth Casey | United States

At 9 P.M. EST on Monday, President Trump made the decision the whole country was anticipating ever since Justice Kennedy retired on June 27th. That was announcing his nominee to replace him.

The list was narrowed down to 4 at the start of the day. Trump ended up choosing Brett Kavanaugh, who currently serves as a Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit.

When President Trump nominated Judge Neil Gorsuch to the Supreme Court to replace the late Antonin Scalia, almost every noteworthy faction of the American Right praised the pick. From libertarians to neocons, to establishment Republicans to tea partiers and social conservatives, the nomination of Gorsuch brought them all together because they all had a favorable opinion of the nomination. The same story does not apply to Kavanaugh’s nomination, as it drew many mixed reactions from the right.

Republican establishment figures such as Mitch McConnell, Paul Ryan, and Orrin Hatch had high praise for the pick. McConnell and Hatch claim they will do whatever is necessary to get him confirmed. Although it seems likely Kavanaugh will have the support of the neoconservative wing of the Senate, Tom Cotton, who is held in high regard by prominent neoconservatives, expressed concern over the potential nomination of Kavanaugh to the Supreme Court about five days ago.

Many conservatives offered a mix reaction, with Ben Shapiro calling the pick a “double, not a home run”, pointing out his decision to avoid jurisdiction in Obamacare and government provided contraceptive coverage as his main critiques. Ted Cruz, who, prior to the nomination becoming official, also expressed discomfort with Kavanaugh, seemed to have a change of heart. He announced on Twitter he “looks forward to confirming his nomination”. Rick Santorum, however, criticized the president for “bowing down to the elite in Washington” by selecting Kavanaugh.

So, how should libertarians feel about Kavanaugh? Is he another principled originalist constitutional conservative in the likes of Judge Neil Gorsuch who will protect our 4th amendment rights? Or is he just another Judge Roberts, a Republican-appointed judge who will sacrifice our constitutional liberties from time-to-time. From the looks of it, it appears to be much closer to the latter. 

Justin Amash, by far the most libertarian member of the House, called the pick disappointing, tweeting the following about Kavanaugh:

I think Amash is 100% correct in his analysis of Kavanaugh. He’s definitely not another Gorsuch, who proved in the Carpenter V. United States case that he might be the most pro-4th amendment justice on the court. He was the only justice who used the 4th amendment for the basis of his opinion. Gorsuch wrote the following:

“The Fourth Amendment protects ‘the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.’ True to those words and their original understanding, the traditional approach asked if a house, paper or effect was yours under law. No more was needed to trigger the Fourth Amendment.”

Kavanaugh, as Justin pointed out, is rather weak on the 4th amendment. He holds the common but flawed position that the security the government will provide through the metadata collection is worth the amount of privacy that would be given up by innocent Americans.

Besides the 4th amendment, another area of concern libertarians should have towards Kavanaugh was his opinion towards upholding Obamacare. He believed, due to the legal theory of judicial constraint, the courts had no position in making a ruling on Obamacare and therefore avoided jurisdiction. He shared a similar opinion to Justice Roberts on this issue, believing that the individual mandate in Obamacare that required Americans to have health insurance, was not a fine, rather a tax, and taxes cannot be adjudicated by the DC Circuit Court of Appeals. His opinion was later adopted by Justice Roberts, who ultimately claimed Obamacare was constitutional and voted to uphold it at the Supreme Court.

Libertarians believe that this opinion is invalid because judicial restraint should not have been used in this case. It would definitely be the court’s role to overturn Obamacare for its unconstitutional individual mandate under the Commerce Clause.

This morning, one of the top libertarian legal minds in the country, Judge Napolitano, gave his opinion on Brett Kavanaugh, stating he was disappointed by Trump’s choice of Brett Kavanaugh for the Supreme Court. The judge called him “the heart and soul of the DC establishment”.

I asked libertarian-leaning Republican Congressman Thomas Massie for his opinion on Kavanaugh’s nomination, and he responded to me with this:

It appears Massie wants to analyze whether Kavanaugh would be an upgrade to Kennedy on the Supreme Court before making the decision whether or not to support his nomination.

Because of his inconsistent positions regarding issues that don’t align with the constitution, it is worthwhile for libertarians to object to his nomination.

How does Rand Paul feel about Kavanaugh’s nomination?

Shortly after Trump announced his nomination of Kavanaugh to the Supreme Court, Rand tweeted out this regarding Kavanaugh:

This reaction was very divergent from other Republican Senators who pledged to support his nomination, as Paul seems to be undecided about how he’ll vote and will wait for the upcoming hearings.

Days prior to Kavanaugh’s nomination being announced, Rand privately urged President Trump not to pick Kavanaugh, citing his concerns with “Kavanaugh’s role during the Bush administration on cases involving executive privilege and the disclosure of documents to Congress.” According to Bloomberg reporter Steven Dennis, Rand spoke to him prior to the nomination, stating he would evaluate Kavanaugh’s record if he were to be the pick, while also saying he wants a justice who agrees with Neil Gorsuch on privacy, but as I covered above, Kavanaugh has almost the complete opposite position as Gorsuch when it comes to government spying and the 4th amendment.

So just how much say will Rand Paul’s vote have in deciding whether Kavanaugh gets confirmed? Rand Paul’s vote will be a critical one. With the Republicans having just a 51-49 majority in the Senate and Senator John McCain currently being inactive in the Senate due to health problems, one Republican Senator dissenting from voting in the affirmative could put the nomination in jeopardy if no Democrats cross over the aisle and vote to confirm Trump’s nominee.

Rand Paul will have a decision to make. He could be a hero to libertarians, privacy and 4th amendment advocates, and true constitutionalists by voting against Kavanaugh’s nomination, causing the President to nominate a more constitutional, liberty and 4th amendment friendly nominee to the court. Time will tell whether he chooses to do so, but ultimately, libertarians should oppose the nomination of Justice Brett Kavanaugh to the Supreme Court.


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The Illegal War on Drugs

By Eric Lee | USA

Since the ratification of the Constitution in 1789, the federal government has expanded exponentially. Voter apathy, the misguided good intentions of many, and the malicious lust for power of a select few have combined to create a massive, labyrinthine bureaucracy that constantly interferes with the lives of the citizens whose rights it is entrusted with defending. Symptomatic of this trend is the War on Drugs, a stellar example of the federal government’s unconstitutional expansion and abuse of power. Acting of its own volition, the federal government has inverted the Constitution and given itself the power to decide what substances can be possessed by the individual, and in its zeal to protect Americans from their own questionable decisions, has stomped on the rights of the individual. In theory and in practice, the war on drugs is unconstitutional, and it is well past time for this illegal crusade against certain substances to cease.

The regulation of controlled substances within state boundaries is well outside the realm of federal authority. Congress is given very specific powers, and the regulation of various substances is not one of those powers. This is left up to the states, as per the Tenth Amendment’s requirement that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” (Constitution of the United States). According to Laurence M. Vance of New American, since Congress is not authorized to regulate such matters, it would take a constitutional amendment to ban drugs such as heroin, marijuana, or cocaine, just as a constitutional amendment had to be ratified to ban alcohol and enact Prohibition, a horrific failure in its own right (Vance 5). However, in Gonzales v. Raich (2005), the Supreme Court held that since Congress has the power to regulate interstate commerce, it also has the power to regulate anything that might affect interstate commerce. As a result, it declared that the DEA’s destruction of privately grown marijuana plants, earmarked for personal medical use and legal under California state law, was constitutional. The fact that the small-scale cultivation of plants is neither interstate nor commerce, nor has any effect on interstate commerce, was seen as inconsequential (Gonzales). The idea that there can be blanket bans on naturally growing plants under the guise of regulating commerce is ridiculous. By this logic, Congress could ban the interstate transport of apple juice, and send federal agents out to destroy the nation’s apple trees in pursuit of its goal. In his dissent, Justice Thomas saw the dangerous folly of the ruling, reasoning that “if Congress can regulate [marijuana cultivation] under the Commerce Clause, then it can regulate virtually anything- and the Federal Government is no longer one of limited and enumerated powers” (Gonzales). Despite the preposterous legalese that the government uses to shroud its excesses, the federal government never had and never will have the authority to ban drugs, barring a future constitutional amendment.

Even if we pretend that the federal government had the authority to launch a war on drugs, it is undeniable that civil liberties have been violated many times in pursuit of its goals. In drug cases, the Fourth Amendment has been shredded. Probable cause is no longer necessary to obtain a warrant, and evidence from searches undergone without a proper warrant has been used in court. According to Judge Robert W. Sweet, “these holdings have been characterized as ‘the drug exception to the Fourth Amendment.’” The idea that the government can kick down your door based on the “good faith” of a police officer or “anonymous tips and tips from informants known to be corrupt and unreliable” and then use that evidence in court against you is a “debasement of the rule of law” (Buckley et al. 15-16). Thanks to a drug-related case, the Supreme Court now views probable cause as “a fluid concept- turning on the assessment of probabilities in particular factual contexts–not readily, or even usefully, reduced to a neat set of legal rules” (Illinois v. Gates). This standard is not one conducive to the defense of privacy rights. It leaves much up to interpretation, and there will inevitably be certain judges that stretch the “fluid concept” of probable cause to ridiculous and disturbing levels. Of course, illegal invasions of privacy are the only way to realistically restrict drug use, as few people are going to call the police to inform them of a nearby consensual sale or the smell of burning marijuana. As Ethan A. Nadelmann, former professor of political science at Princeton University, puts it, no endeavor meant to keep people from exercising their right to self-determination “can succeed so long as we remain a free society, bound by our Constitution” (Buckley et al. 5). Americans must choose between keeping their constitutional protections against unreasonable search and seizure or preventing their neighbor from smoking a joint, and it is fairly clear which road we should go down. In recent years, the war on drugs has been the primary catalyst in the destruction of our Fourth Amendment rights, and it is time for the erosion to stop.

The federal war on drugs is quite possibly the greatest attack on constitutional law in the history of the United States. The federal government has taken it upon itself to hunt down and punish Americans for ingesting substances into their own bodies, and has trampled over the rights of everyone in their zest to capture a select view. If Americans are to preserve the remaining scraps of federalism and privacy rights, they must reverse this trend of ever-increasing federal power and ever-more-lax restrictions on search and seizure. The American people are walking down the road to the gallows of the Constitution and the death of limited government, and it is imperative that we turn down a different path before we lose other fundamental rights.

Works Cited
Buckley Jr., Wm. F., and Others. “The War on Drugs Is Lost.” National Review 1996 feb: 34-48. Web. 4 Sept. 2017.
“The Constitution of the United States: A Transcription.” National Archives and Records Administration. National Archives and Records Administration, n.d. Web.
“GONZALES v. RAICH.” Web. 4 Sept. 2017.
“ILLINOIS v. GATES ET UX.” Web. 4 Sept. 2017.
Vance, Laurence M. “The Other Unconstitutional War.” New American 2011 nov: 20-24. Web. 4 Sept. 2017.