16A037 Bypassing Article Five by Jim Davies, 10/18/2016    

On September 27th I reported in Walls on the enormous line of US citizens and others whose journey home after long and tiring trips was being inordinately delayed by the Customs and Border Protection agents (CBP) of the US Government. I took an opportunity to complain to the CBP, and in the response I found an amazing statement.

It said "we do have authority to delay you" which authority derives from SCOTUS: "the Supreme Court has made an exception to [Amendment 4] in the unique case of [searches at the border.]" I looked for that, but found no such decision or exception. There are several cases, mostly recent, in which the Court was asked to test the constitutionality of laws that permitted searches well within the border, but in all of them Their Honors merely noted that searches were permitted at the border itself, by the Tariff Act of 1789, and addressed themselves only to how far inside the USA such border activity was allowed to stretch. They haven't been asked to rule on the Tariff Act, so they didn't.

I didn't find any such case that referred back to an earlier SCOTUS decision; just to that 1789 Act. So I hunted it down, and found it was called the "Hamilton Tariff Act", passed by the first Congress in July of that year. It contains a long list of items to be taxed upon importation. I did not find the word "search" in its text. More notable yet is that the CBP web page summarizing its history refers also only to that Act, and not to any SCOTUS action to make exceptions to the Fourth Amendment; yet we'd expect to see that higher authority cited there, if it existed.

Now, it's fair to infer that if it's legit to tax cheese when it arrives at a US dockside, it's also legit for government agents to test the veracity of the importer's cargo log by conducting a search (though neither is "legit" in the least degree, by the standard used in this Blog.) So the mere omission of the word "search" from that Act need not detain us. What is much more interesting is that after passing this Tariff Act, the first Congress went on to propose the first ten Amendments to the Constitution on September 25th 1789, including the Fourth - in which no government search was to take place without a warrant issued pursuant to testimony that a crime appeared to have been committed.

Hence, Congress enacted a law in July that might be read as permitting "fishing" searches at the border, but proposed two months later that all searches be prohibited unless backed by witnesses to a crime - such as, perhaps, a dockside observer who saw a ton of Dutch cheese being loaded to a wagon without having been declared for import tax.

Its first (July) law was therefore superseded by its second (September) over-rule; and that would have been so even if the second enactment had been of a mere statute; this was of a proposal, later ratified, to amend the supreme law.

Accordingly, the July 1789 permit to search was canceled in September and has never since been resurrected. That cancellation has been formally flouted by such Acts as 19 USC 482, but the Fourth has never been amended.

That means that every border search since 9/25/1789 has been illegal. Does it also mean that all import taxes collected have been illegal? - not necessarily, for the Fourth Amendment does not negate them. If an importer's word was accepted and he paid what was demanded, all was kosher. All the Revenuers were prevented from doing was to test his word without a proper warrant. You and I might guess that importers would quickly get the message that if they forgot to declare taxable merchandise they would escape the tax, and so that most of them did exactly that for most of the time; hence, Amendment 4 causes most import taxes to become legally uncollectable.

Hence, all government border-searches for the last two and a quarter centuries have been illegal and most of the revenue that funded the feds prior to 1913 was stolen without even the veneer of a Constitutional statute. But we're not done yet.

Suppose the Supreme Court had "made an exception" to Amendment four, as my informant claimed. What then? Why, that would have been an amendment to the Constitution. Can the Supreme Court do that?

No particular powers are delegated to the Supreme Court by Article 3, as I pointed out in A Garland for Frankenstein, and that does give it leeway to assume the power to "interpret" laws and to say whether they conform or not to the Constitution; for Article 3 doesn't withhold such powers either. That is the trick by which the founders deliberately bypassed the popular will and enabled a cabal of appointees actually to rule the country, when the chips are down.

However, not even that trick empowers SCOTUS to amend the Constitution itself, which is something emphatically reserved for the States, by Article 5. It has stretched the meaning of its words to twanging point, for example by allowing certain gun control laws to stay on the books despite Amendment 2, but I'm not aware of any case in which Their Honors have expressly "made an exception" to what it says, for that would absolutely be to amend the very charter from which alone they allegedly derive their powers. Clearly and absolutely, that would be far beyond its purportedly granted power.

The take-away from this is twofold.

First, if the FedGov had been diligent in following its own charter and laws, as it pretends to do, there could be no border control at all and, prior to the 1913 introduction of the "income tax" and of printable money, far less money available for it to spend. Too little, for example, for Lincoln to have spent on his 1861 War to Prevent Secession.

Second, even more important, the problem of the missing exception (some phrase that, in Amendment Four, would have permitted warrantless searches at the border) could have been solved quite easily at any time since September 25th 1789, for on the basis that the States were to unite in a federation and have borders, those who vote in the government system would have had no objection to ratifying such an amendment so that its borders could be enforced. And yet, nobody bothered! Such was the utter arrogance of the government class that it really didn't care. The system was in place, the border was being policed, nobody important was objecting, who needs any goddam law?

It is this arrogance, this indifference to the implication that they are subject to any kind of obligation, which proves that it is totally reprobate; that it has to go. Government can not be limited, for if it were, it would not be the government. "Limited government" is an oxymoron, a contradiction in terms. The illusion of limits may last a while, but ultimately the only available choices are no government at all, or total and absolute tyranny.

If you're not already on board the program to produce the former, please start now.