Testing the Limits of the Law

An interesting discussion of the limits of the Fourth Amendment is taking place at The Volokh Conspiracy. It concerns the Department of Justice (DOJ) and the Ninth Circuit in reference to drug smuggling cases. Here is my take on the question:

It looks to me from what little I know about the law that the DOJ is looking for more Drug War opportunities to shred the Fourth Amendment.

If you go back into the history of the country and study the case of John Hanncock's sloop "Liberty" and its run in with British revenuers in support of British mercantilist policies you will see where the Fourth Amendment in part originated.

We have a similar mercatilist policy, in support of the pharmaceutical, alcohol, and tobacco companies, of keeping competing products which are easy to manufacture off the market.

For this very reason Benjamin Rush an MD of the time and signer of the Declaration of Independence thought medical liberty ought to be written into the Constitution to prevent doctors and pharmaceutical companies from becoming monopolists. Which in fact has happened. The goal of bringing herbal medicine and vitamins under the control of the FDA is also in furtherance of this mercatilists/monopolist policy.

The reason medical costs are so high is that government controls who can enter the market through a series of "health and safety" regulations. In other words government is not just interested in an informed consumer which the initial regulations provided for. The government now controls entry into the market through control of the medical guild and the pharmaceutical industry.

It was just such restraint of trade that the Fourth Amendment was aimed at.

The Fourth Amendment in fact a limited the taxing power of the state by giving smugglers an advantage. If taxes are low smuggling is not profitable. High taxes forces the state to become intrusive in its searches.

We are in the mess we are in re: Drug Prohibition because we have forgotten what animated the founders: the British mercatilist system of monopoly profits and taxes.

The situation we are in today is actually worse. The monopoly on drug importation has been given to criminal gangs. What I like to call Republican Socialism: price supports for criminals.

In cases where there is actual harm done to a citizen, i.e. an actual crime, probable cause is not too difficult a standard to meet. Where there are willing buyers and sellers that standard is much more difficult. The government must go on fishing expeditions. To limit the taxing power of the state unreasonable searches (fishing expeditions) were in effect outlawed. As in so much of the law made by the Supreme Court these days "unreasonable" is getting more and more narrowly defined. In fact many would argue that it has been defined almost out of existence.