The California Supreme Court — in a move that would make King George III of England proud — decided Monday that if a government official wants to search your car, but does not have reasonable grounds to believe that you have violated any law, the search is legal.

I’d like the California Supreme Court to tell me why our reaction to this shouldn’t be exactly the same as the reaction of the colonialists to King George III’s Navigation Acts and Writs of Assistance?

Some Americans — sadly, not so many — know that the United States of America did not always exist. Before we were the United States, we were just a bunch of colonies of the British Empire.

The British Empire had expenses and, like a lot of governments with rapacious appetites for its citizens’ money, was constantly at odds with those who were not inclined to willingly hand it over. Back then, the Internet didn’t exist, so you couldn’t just avoid paying taxes by ordering your books from Amazon. What you could do, however, was to buy smuggled goods. These were often cheaper because they didn’t have the added burden of the King’s taxes.

Naturally, the King was not too fond of this idea.

Not only did the Internet not yet exist, but the California Legislature did not yet exist. Consequently, the King could not just ask them to pass some hare-brained law requiring companies like Amazon to collect the taxes for him, so he sent customs officials instead. As one article about the cause of the American Revolution points out:

Customs officials were empowered with writs of assistance (transferable, open-ended search warrants), which permitted them to search warehouses, homes, and ships on a whim without cause.

The rest, as they say, is history.

No, really, it’s history. So if you want to know more about it, you might want to read some history.

As George Santayana noted,

Those who cannot remember the past are condemned to repeat it.

If ever there was anyone who repeatedly demonstrated difficulty remembering the past, it would be — well, pick just about any modern judge or justice of an American court. In particular, though, take a look at the “Supreme” Courts of our once-great, but now essentially decimated, Nation. Where once the United States of America stood for Freedom, today we stand for Fear; where once the United States of America stood upon the shoulders of the Founders who gave us a limited form of government via our Constitution, today we trample that Constitution into the mud. Mud formed by the tears of all those who weep over what our courts have done to us.

The government, once limited, today knows no limits.

In People v. Bouhn Maikhio, issued June 21 (Update 9/26/2016: link broken) by the California Supremes, the Court returned us to the position we were all in under King George III.

The facts are these: a Fish & Game warden saw Bouhn Maikhio fishing with a “handline” from a pier. The warden was unable to see what he caught, but thought there was a possibility that he might be catching something he wasn’t allowed to catch because he was using a handline. After all, this is the kind of universe where it is possible to catch things with a handline that are legal to catch and also to catch things with a handline that are not legal to catch. Since the game warden did not know which kind of thing Maikhio had caught and, being one of the King’s men, he wanted to know, he detained Maikhio as he was driving away and searched his car. As it turned out, he’d caught one of the kinds of things that it was not legal to catch.

The trial court, acting under the mistaken belief that the United States Constitution actually meant what it said, granted a motion to suppress. The appellate division of the trial court, concerned that a criminal was going to be allowed to get away on a technicality — which is what most courts consider the Constitution to be these days — reversed. The Court of Appeal then reversed the appellate division of the trial court, stating that, after all, the government does still at least need probable cause to justify a detention and search.

To which the California Supreme Court said, “Bullshit. If the King’s men want to make sure the King’s rules are being followed, that’s good enough reason for them to search. If we say they first need some suspicion, reasonable or otherwise, how will they know citizens aren’t just consuming smuggled goods? Besides, stopping citizens to search their personal effects and property? No big deal.”

You think I’m kidding?

Balancing the importance and strength of the state’s interest and need for the suspicionless stop and demand procedure against the limited impingement upon privacy resulting from that procedure, we conclude that the Fourth Amendment does not preclude a state from authorizing a game warden to briefly stop a person the warden encounters on a pier, in a boat, or in the field, who the warden reasonably believes has recently been fishing or hunting, to demand that the person display all fish or game that he or she has caught or taken, even in the absence of reasonable suspicion that the person has violated a fish and game statute or regulation.

That “demand that the person display all fish or game that he or she has caught or taken” apparently means “the warden may search the person’s car without the need for a warrant.”

The California Supremes took notice of the fact that courts in other states had reached different conclusions, but noted, in considering one such case that:

In stating that reasonable suspicion was required for such a vehicle stop, however, the court in Levens did not analyze the various factors discussed in the special needs and administrative inspection cases, and in particular failed to consider the practical effect of a reasonable suspicion requirement upon the state’s general ability to enforce its fish and game regulations.

The problem is those other courts mistakenly took the United States Constitution to mean what it said. The California Supreme Court, you see, doesn’t read the United States Constitution. After all, they didn’t write it, so it can’t possibly be important. Those other courts may also have had some kind of historical understanding, perhaps understood something of the origin and intent of the Fourth Amendment.

California, however, has a rather shitty educational system. So it is perhaps unsurprising that California’s judges are deficient in their understanding of history. It’s not so much that they’ve forgotten the whole mess with general writs of assistance. They aren’t misremembering that the basis for such writs were that the English King felt there was no other way to verify that his laws were being followed. The idea that smuggling was difficult to detect if one had to rely upon reasonable suspicion before obtaining authorization to search did not slip their minds.

They simply never learned it in the first place.

Likely as not, they are also unfamiliar with the words of George Santayana mentioned above.

What matters is that the King has laws. The King wants those laws enforced. The King can’t be everywhere — even his officers cannot be everywhere. So, when the King’s men do happen upon a citizen, why they must have the right to search them immediately. We don’t need no steenkin’ reasonable suspicions. Constitutional warrant requirements be damned.

So it started a war last time. So what?

Those were different times. The country wasn’t populated with sheeple then.

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8 comments

  1. If the courts don’t follow the very law on which whatever authority they purport to have is based in the first place, i.e., the Constitution, then I’d say that they’re pretty lawless. But herein lies the fallacy of Constitution-worship: if the law, including the Constitution, is whatever the courts say it is, then the Constitution isn’t much of a limit on government power, and never was. The courts are creations of the Constitution, and if like Frankenstein’s monster they have unshackled themselves from the Constitution, the Constitution itself is to blame. Thomas Jefferson recognized this late in life, when he began earnestly proposing a whole new form of government, based on “ward-republics,” to preserve for posterity the spirit which animated the Revolution.

    I was wholly kidding when I pretended in my comment above to question your sanity for questioning the courts and the judges who inhabit them.

    1. You might be surprised at the number of people who have made similar comments to me — lawyers! — who were not kidding. That’s why I made the response I did.

      I’ve also heard about some states where they appear to believe that just because someone decided to practice law, they gave up their constitutional right to freedom of speech when it comes to criticizing at least one of our branches of government.

      Frankly, if such were ever the case here — if California really does go the route of outlawing freedom of speech — I’ll gladly trade in my law license for today’s equivalent of a musket. If the government says you aren’t allowed to make yourself heard by speaking, then it is incumbent to find other ways to be heard.

  2. If the courts don’t follow the very law on which whatever authority they purport to have is based in the first place, i.e., the Constitution, then I’d say that they’re pretty lawless. But herein lies the fallacy of Constitution-worship: if the law, including the Constitution, is whatever the courts say it is, then the Constitution isn’t much of a limit on government power, and never was. The courts are creations of the Constitution, and if like Frankenstein’s monster they have unshackled themselves from the Constitution, the Constitution itself is to blame. Thomas Jefferson recognized this late in life, when he began earnestly proposing a whole new form of government, based on “ward-republics,” to preserve for posterity the spirit which animated the Revolution.

    I was wholly kidding when I pretended in my comment above to question your sanity for questioning the courts and the judges who inhabit them.

    1. You might be surprised at the number of people who have made similar comments to me — lawyers! — who were not kidding. That’s why I made the response I did.

      I’ve also heard about some states where they appear to believe that just because someone decided to practice law, they gave up their constitutional right to freedom of speech when it comes to criticizing at least one of our branches of government.

      Frankly, if such were ever the case here — if California really does go the route of outlawing freedom of speech — I’ll gladly trade in my law license for today’s equivalent of a musket. If the government says you aren’t allowed to make yourself heard by speaking, then it is incumbent to find other ways to be heard.

  3. Criticizing the justices of the supreme court of the state in which you’re licensed as an attorney and suggesting their actions are lawless and might warrant a revolution?! That’s crazy. I would never do such a thing.

    1. Yeah, you’re right. I should pretend that I think that it isn’t what it appears to be. The circumstances are virtually identical to the treatment of the colonials when the British crown thought there was a possibility that some people might be in possession of smuggled goods. Thus, searches of all people were permitted “for verification purposes”; no reasonable suspicion required. But the modern interpretation — by those same courts — of the First Amendment means I should actually not say that just because that’s exactly how it looks. Unfortunately, I believe in the Constitution — as it was written, not as the government has reinterpreted it to prevent it from limiting governmental action.

      Speaking truthfully, however, is a dangerous thing.

      Whether a Revolution is warranted or not, I don’t know. That’s one reason I suggested the court should tell us.

      Probably an appeal to a higher court might be a better start. But maybe, because every appeal is at least implicitly a criticism of the court from which the appeal is taken, I guess we should just give up, eh?

      As for suggesting their actions are lawless, I wouldn’t say that for the simple fact that the law is what the courts say it is. What I said is that they have trampled the Constitution; that, for all practical intents and purposes, it’s as if there is no Constitution, because it obviously does not mean what it says. Their ruling may be contrary to constitutional principles, but it is absolutely the law in California, unless it is appealed to a higher court and the see-sawing back and forth from reversal based on constitutional principles to reversal based on what the King wants, which is what occurred in the lower courts, stops at reversal based on constitutional principles.

      Or, as I said, I can pretend that I think our court is right just because they said they are. I can be forced to keep my opinion to myself because of fear of the consequences if I don’t.

      Which brings us back to colonial America….

  4. Criticizing the justices of the supreme court of the state in which you’re licensed as an attorney and suggesting their actions are lawless and might warrant a revolution?! That’s crazy. I would never do such a thing.

    1. Yeah, you’re right. I should pretend that I think that it isn’t what it appears to be. The circumstances are virtually identical to the treatment of the colonials when the British crown thought there was a possibility that some people might be in possession of smuggled goods. Thus, searches of all people were permitted “for verification purposes”; no reasonable suspicion required. But the modern interpretation — by those same courts — of the First Amendment means I should actually not say that just because that’s exactly how it looks. Unfortunately, I believe in the Constitution — as it was written, not as the government has reinterpreted it to prevent it from limiting governmental action.

      Speaking truthfully, however, is a dangerous thing.

      Whether a Revolution is warranted or not, I don’t know. That’s one reason I suggested the court should tell us.

      Probably an appeal to a higher court might be a better start. But maybe, because every appeal is at least implicitly a criticism of the court from which the appeal is taken, I guess we should just give up, eh?

      As for suggesting their actions are lawless, I wouldn’t say that for the simple fact that the law is what the courts say it is. What I said is that they have trampled the Constitution; that, for all practical intents and purposes, it’s as if there is no Constitution, because it obviously does not mean what it says. Their ruling may be contrary to constitutional principles, but it is absolutely the law in California, unless it is appealed to a higher court and the see-sawing back and forth from reversal based on constitutional principles to reversal based on what the King wants, which is what occurred in the lower courts, stops at reversal based on constitutional principles.

      Or, as I said, I can pretend that I think our court is right just because they said they are. I can be forced to keep my opinion to myself because of fear of the consequences if I don’t.

      Which brings us back to colonial America….

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