On Traffic Checkpoints, Part Two, Or, When Does Safety Become Siege?

We gathered yesterday, Gentle Reader, for a discussion of the constitutionality of highway sobriety checkpoints.

In yesterday’s episode we learned that the Fourth Amendment, according to the Supreme Court, can be ignored if the challenges of enforcing the law seem too burdensome for the Government...and we learned that despite a history stretching all the way back to the 1700s and the British case Entick v. Carrington, the Court was, for the first time, willing to allow general search warrants on American soil.

Today we take the history a bit further...and then we talk about what happens when freedom is given away...and sadly, we need look no further than a few miles from the Capitol Building, in Washington DC itself, to see exactly what happens when freedom is suddenly gone and a community is placed under siege by the police—all, we suppose, for the community’s own good.

We have a lot of ground to cover, so we best get out on the proverbial road—and let’s see if we can avoid our own roadblocks along the way.

In yesterday’s conversation we described how the Supreme Court, in United States v. Martinez-Fuerte, 428 U.S. 543, had authorized the use of an “area search warrant” (a form of general search warrant) to authorize the stopping and searching of all vehicles passing the Customs and Border Protection immigration checkpoint at San Clemente, California.

This occurred despite the fact that there was no “probable cause”, as required by the Fourth Amendment, before any of the vehicles were searched—and despite the precedent of a recent similar case, United States v. Ortiz, 422 U.S. 891, in which the Court stated:

The Fourth Amendment [is] held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border and its functional equivalents, and for this purpose there is no difference between a checkpoint and a roving patrol.

The Government had argued that it was impractical to find probable cause before conducting this type of search; therefore they were justified in ignoring the Fourth Amendment and establishing this checkpoint.

The Court agreed, and justified this conclusion by deciding that the searches were not “unreasonable”, and therefore a warrant was not required. Justices Brennan and Marshall, in dissent, reminded the majority that the inconvenience of the Government was no excuse for ignoring the clear language of the Constitution.

"Tyrant! You are a tyrant!"

--Washington State Supreme Court Justice Richard Sanders, to Attorney General Richard Mukasey, November 20, 2008

But that’s the old business.
Now it’s time to fast forward to Michigan, and a 1990 case, Michigan Department of State Police v. Sitz, 496 U.S. 444.

In 1986, Saginaw County, Michigan decided to set up a sobriety checkpoint in their County, and they had the advice of a State-level Sobriety Checkpoint Committee to assist them in planning an operation that would (hopefully) pass legal muster.

The day before the checkpoint went into operation, a lawsuit was filed seeking to shut the program down, and that lawsuit was successful. (The checkpoint did operate on one occasion, however, and we’ll discuss that evening in a moment.) On appeal, the suit was again upheld, and it was upheld again by the Michigan State Supreme Court.

Each Court agreed that the controlling authority for the decision was the ruling in Brown v. Texas, 443 U.S. 47, which said that in order to justify an intrusion by Government upon an individual’s privacy, the Government’s action had to pass a “three-prong test”.

In this instance the test required balancing the State’s interest in preventing these accidents, how effective sobriety checkpoints are in reducing the accidents, and how intrusive the checkpoints are upon the citizens.

The Michigan Courts held that the checkpoints were ineffective—and critical to that finding were the results of the one night the checkpoint did operate. Of the 142 cars stopped in the checkpoint’s 75 minutes of operation, only two drivers were cited for DUI.

(As a comparison, the Washington State Patrol was able to reduce traffic deaths 13%, in one year, by increasing enforcement on the highways. Checkpoints are not allowed in the State.)

Beyond that, it was further ruled that the stops were “subjectively” too intrusive to be justified under the Fourth and Fourteenth Amendments to the US Constitution.

The US Supreme Court agreed to hear the case—and they did not agree with the Michigan Supreme Court’s thinking.

The Majority Opinion notes that the average motorist stop was 25 seconds, which they felt was a minimal degree of “objective” intrusion (an opinion shared by the State Court)...but they found no substantial “subjective” intrusion.

This is because, in their opinion, the average motorist should have no “fear or surprise” regarding a checkpoint. An examination of the ruling shows no recognition of any other factor as contributing to a subjective intrusion, including motorist annoyance or resentment.

Further, the Majority felt that stopping the 98.5% of the innocent motorists to catch the other 1.5% was, in fact, effective in ”advancing the public interest” in stopping drunk drivers (the controlling language from Brown v. Texas).

The case was remanded back to the Michigan State Supreme Court so that they might reconsider...and for the rest of the Nation, sobriety checkpoints had the Supreme Court’s seal of approval.

Ironically, in Michigan checkpoints are not allowed to this very day. The State Supreme Court, upon further review (as the referees like to say...), found that the checkpoint program violated the State Constitution’s search and seizure provisions; and does not permit them within the State.

There are other States that bar the checkpoints for similar reasons—we’ve mentioned Washington and Michigan; Louisiana (sort of) and Texas (for the moment) are others.

So that’s the history.
Now let’s talk about what’s happened since then.

“...for there is nothing as short sighted as a Politician unless it is a delegation of them.”

--Will Rogers, “Letters of a Self-Made Diplomat to His President”

What began as a tool to identify drinking drivers—and what was supposed to have no other purpose—has developed into a multi-purpose enforcement dragnet...exactly as Justices Brennan and Marshall predicted it would in Martinez-Fuerte.

In addition to sobriety checkpoints, we now have “seatbelt” checkpoints, proposed driver’s license checkpoints in Texas that apparently are actually intended to identify illegal immigrants...and, in an interesting new twist, we have checkpoints that exist to gather information about crimes that were recently committed at a location. The argument is that questioning everyone who passes by a location is not a stop or a search—even though the police are stopping people and...well, searching them.

Let’s stop for a quick “Checkpoint Bonus”.

If you would like to see exactly what happens when an individual refuses to cooperate with a CBP agent at an immigration checkpoint, have a look at this fascinating video, where the driver refuses to answer any questions...and in return, the CBP agent tries to avoid answering the questions “am I being detained?” and “am I free to go?”...and as it turns out, Terry Bressi’s lawsuit seeking to stop checkpoints had a hearing November 20th before the Ninth Circuit Court of Appeals.

And with that, let’s return to how checkpoints are used today.

Surprise!

The enforcement seems to be often directed at minority and poor communities...and the vast majority of arrests at the “sobriety checkpoints”, in many locales, are non-DUI/DWI related...and for some agencies, the goal seems to be the seizure of property rather than the original goal of stopping drunk driving.

According to some of the comments I received after Part One of this story was posted, being the guy with a Grateful Dead sticker on your car might be enough to guarantee you “special treatment”, regularly, no matter if you appear drunk or not. (Sound familiar to anyone?)

Which brings us to Pomona, California.

In Pomona, there is a strong perception that the Police’s traffic checkpoints target illegal immigrants and low-income Blacks and Hispanics.

The local newspaper, the Inland Valley Daily Bulletin, agrees, pointing out that 90% of the City’s checkpoint operations occur in low-income South Pomona...and, according to the paper, 99% of vehicles seized at the checkpoints are from drivers who were not charged with DUI.

Checkpoints may also have unintended side effects.

The paper points out that Pomona Police only solve 44% of their murder cases...while the State average is closer to 70%. It is suggested the hostile feelings between the community and the Police, caused by the checkpoints, are at the heart of this problem.

The checkpoints in Pomona, the paper reports, have involved as many as 70 officers, and at least one involved the “cordoning off” of a local market, presumably in an effort to snare a large group of shoppers. The paper wonders if criminals are taking advantage of this concentrated Police presence to strike in other parts of the City during the checkpoint operations.

In an effort to “start a dialog” with the community, several off-duty Pomona officers attended a community meeting regarding the checkpoints...and despite what the Supreme Court might think, apparently the “subjective” impact of the checkpoints was strong enough that the on-duty Police had to be called to extricate the off-duty Police from the meeting, according to attendees writing for the “Americans for Legal Immigration” Political Action Committee’s blog.

Similar complaints are being heard in the San Diego area as well.

Our next stop on the “Checkpoints Gone Wild Tour”: Illinois.

In order to “secure” an apartment complex in Rolling Meadows, the local police decided to set up a checkpoint on one of the complex’s 13 entrances—and then they blocked off all access to the other 12.

The checkpoint has been staffed every day from Noon to 8PM.

The 2,000 residents are thus required to submit to police scrutiny each and every time they wish to enter or leave their own homes and go anywhere in a car beyond the parking lot during those hours. (We are surprised, frankly, that the police only operate during those hours; we always thought that a lot of crime takes place at night....but what do we know?)

In Washington, Illinois, the local police closed off an entire neighborhood, demanded ID that proves drivers reside in the area, and did not allow outsiders to enter without what they consider to be a “legitimate reason” to be in the area, according to the local chapter of the ACLU.

In an effort to bring this sort of law enforcement to every State, the Federal Government, in the form of the National Highway Traffic Safety Administration, is now pushing the remaining States that don’t allow checkpoints to...reconsider...something the Governor of my own State, Washington, is trying to make happen...even though the State Supreme Court has already ruled the practice violates the State Constitution.

And finally, as promised, a quick visit to Washington, DC...theoretically, the world’s “Freedom Captiol”.

The City has successfully defended, before a US District Judge, a program that seals off the Trinidad neighborhood after a series of shootings. The Police are also turning away those they feel should not be in the area, and that was the source of the complaint. The ACLU’s reaction:

"My reaction is, welcome to Baghdad, D.C.," said Arthur Spitzer, legal director for the ACLU's Washington office. "I mean, this is craziness. In this country, you don't have to show identification or explain to the police why you want to travel down a public street."

And that, very neatly, describes the problem of checkpoints.

What began as a rare and unusual—and frankly, poorly justified—exception to the Fourth Amendment has morphed into a legal principle that allows law enforcement to choose to seal off entire communities, if they wish, to target populations based on no “particularized suspicion” (which often seems to be a low-income or minority population), to develop ever more creative and tortuous justifications for the targeting—and to do all of this because of our fear of crime, which has apparently overridden our trust in freedom...and because of our unwillingness to tackle the root causes of the problems that checkpoints can never really solve.

On The Weird Twists Of History, Part Two, Or, Why We Have A Fourth Amendment

Those who are coming to this story today have jumped into the middle of quite a tale. I put myself in a tough position last time by promising to link a British “garden of lust”, Benjamin Franklin, and 18th Century bloggers into a narrative that concludes with the nascent United States of America and its shiny new Fourth Amendment.

So far, amazingly enough, I’m pulling it off.
If you need to catch up, here’s what’s been going on:

When last we met...it was in a world of scandal and intrigue; with King George III and the Earl of Bute (and of course, their assorted minions) very upset with John Entick, author, and John Wilkes, author and world-class raconteur (and drinking buddy to Franklin), because they had the temerity to...well, blog.

The Earl of Bute had taken so much abuse from the Johns that he had been forced to resign from his position as Prime Minister...leaving the minions under his control, many said, only now from behind the scenes.

Something needed to be done...and when you have minions, you put them to use.

In 1762, as the influence of “The Monitor” continued to grow, George Montague Dunk, the Second Earl of Halifax (and a member of the Privy Council) and the highest ranking minion available, issued the King’s Chief Messenger, Nathan Carrington, a general search warrant ordering him to:

“...make strict and diligent search for [Entick], mentioned in the said warrant to be the author, or one concerned in the writing of several weekly very seditious papers intitled, "The Monitor or British Freeholder, No 357, 358, 360, 373, 376, 378, and 380, London, printed to J. Wilson and J. Fell in Paternoster Row," containing gross and scandalous reflections and invectives upon his majesty’s government, and upon both Houses of Parliament, and him the plaintiff having found, to seize and apprehend and bring together with his books and papers in safe custody before the earl of Halifax to be examined concerning the premisses, and further dealt with according to law...”

--From the report of Entick v. Carrington, 19 Howell’s State Trials 1030 (1765)

A four hour search was conducted of Entick’s home, and all his books and papers were carried away to be examined in an effort to prove that the charges of seditious libel (essentially, speaking out against the King) were valid.

In what has become one of the most important trials in British legal history—and ours—John Entick sued the messenger, literally, claiming that any general search warrant is inherently invalid, that Carrington should have known this, and that Carrington never should have relied upon the authority of Lord Halifax to permit the search.

If Entick had been trespassed upon, then the papers seized were inadmissible; and that meant Entick could not be convicted of seditious libel. Here’s how Entick’s lawyer put it, again according to Howell’s:

“...As to the second. A power to issue such a [general] warrant as this is contrary to the genius of the law of England; and even if they had found what they searched for, they could not have justified under it. But they did not find what they searched for, nor does it appear that the plaintiff was the author of any of the supposed seditious papers mentioned in the warrant; so that it now appears that this enormous trespass and violent proceeding has been done upon mere surmise.

But the verdict says, such warrants have been granted by secretaries of state ever since the Revolution. If they have, it is high time to put an end to them; for if they are held to be legal, the liberty of this country is at an end. It is the publishing of a libel which is the crime, and not the having of it locked up in a private drawer in a man’s study. But if having it in one’s custody was the crime, no power can lawfully break into a man’s house and study to search for evidence against him. This would be worse than the Spanish inquisition; for ransacking a man’s secret drawers and boxes, to come at evidence against him, is like racking his body to come at his secret thoughts...

... But it is said, if the secretary of state has power to commit, he has power to search, etc. as in the case of stolen goods. This is a false consequence, and it might as well be said he has a power to torture.”

We need to take a moment to discuss the meaning of a general warrant—and all of a sudden we get to the part where our very own Fourth Amendment enters the story. Rather than tackling the legal issue myself, I’ll quote from the United States Supreme Court’s ruling in Stanford v. Texas, 379 U.S. 476 (1965), a seized books case:

“...The petitioner has attacked the constitutional validity of this search and seizure upon several grounds. We rest our decision upon just one, without pausing to assess the substantiality of the others. For we think it is clear that this warrant was of a kind which it was the purpose of the Fourth Amendment to forbid - a general warrant...

The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

These words are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever "be secure in their persons, houses, papers, and effects" from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists.

The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as "the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book," because they placed "the liberty of every man in the hands of every petty officer."

The historic occasion of that denunciation, in 1761 at Boston, has been characterized as "perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. `Then and there,' said John Adams, `then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.'"

What is significant to note is that this history is largely a history of conflict between the Crown and the press. It was in enforcing the laws licensing the publication of literature and, later, in prosecutions for seditious libel that general warrants were systematically used in the sixteenth, seventeenth, and eighteenth centuries. In Tudor England officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent, both Catholic and Puritan. In later years warrants were sometimes more specific in content, but they typically authorized the arrest and search of the premises of all persons connected with the publication of a particular libel, or...the arrest and seizure of all the papers of a named person thought to be connected with a libel

Two centuries have passed since the historic decision in Entick v. Carrington, almost to the very day. The world has greatly changed, and the voice of nonconformity now sometimes speaks a tongue which Lord Camden might find hard to understand. But the Fourth and Fourteenth Amendments guarantee to John Stanford that no official of the State shall ransack his home and seize his books and papers under the unbridled authority of a general warrant - no less than the law 200 years ago shielded John Entick from the messengers of the King.”

And in fact Carrington did lose the lawsuit to Entick. This, from the ruling in Entick v Carrington, 95 Eng. Rep. 807 K.B. (1765):

“...our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law. The defendants have no right to avail themselves of the usage of these warrants since the [Glorious] Revolution [of 1688], and if that would have justified them they have not averred it in their plea, so it could not be put, nor was in issue at the trial; we can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society; for papers are often the dearest property a man can have...

... The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole...By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him....”

So Entick won.
But what about Wilkes?

Well, the “triple headed, Cerebrean” Government Wilkes referenced in “The North Briton” No. 45 prosecuted him for seditious libel as well, using another general search warrant to effect the seizure of evidence.

Wilkes was able to prevail at trial by invoking his Parliamentary immunity from arrest on libel charges. Quoting Wilkes, describing the still-upcoming trial:

[The case will] "teach ministers of arbitrary principles, that the liberty of an English subject is not to be sported away with impunity, in this cruel and despotic manner...[and also] "determine at once whether English liberty be a reality or a shadow."

Then Wilkes returned the favor—figuratively “suing the messenger” in the second of our illegal warrant blockbusters, Wilkes v. Wood, 98 Eng. Rep. 489 (1763)
.
In fact, he’s the one who sued first...and based on the events of his trial, Entick filed the lawsuit against Carrington that we just discussed. A few words from the report of the trial:

“...Serjeant Glynn [defense counsel], then enlarged fully, on the particular circumstances of the case, but remarked that the case extended far beyond Mr. Wilkes personally, that it touched the liberty of every subject of this country, and if found to be legal, would shake that most precious inheritance of Englishmen. In vain has our house been declared, by the law, our asylum and defence, if it is capable of being entered, upon any frivolous or no pretence at all, by a Secretary of State...

That of all offences that of a seizure of papers was the least capable of reparation; that, for other offences, an acknowledgement might make amends; but that for the promulgation of our most private concerns, affairs of the most secret personal nature, no reparation whatsoever could be made. That the law never admits of a general search-warrant. That in France, or Spain, even in the Inquisition itself, they never delegate all infinite power to search, and that no magistrate is capable of delegating any such power...”

And a few words from the Lord Chief Justice in his verdict:

“...When we consider the persons concerned in this affair, it ceases to be an outrage to Mr. Wilkes personally, it is an outrage to the constitution itself...

Secretary Williamson, in Charles the Second’s time, for backing an illegal warrant, was sent to the Tower by the House of Commons. The jury, he observed, had no such power to commit; he knew it well; but, for his part, he wished they had, as he was persuaded they would exercise it, in the present case, as it ought to be...”

The Government response to their defeat?
To prosecute Wilkes for a very, very naughty joke indeed.

It turns out that back in the crazy Monks of Medmenham days Wilkes...apparently...co-authored an exceptionally ribald book called “An Essay on Woman”, a parody of Alexander Pope’s “Essay on Man”...and here was a chance to strike back at Wilkes...if only the annoying immunity thing wasn’t in the way.

So he was promptly thrown out of Parliament, and then charged with blasphemous libel. He immediately fled the country, spending four years in exile.

Now here’s the good part: Wilkes decided to return, because, despite his outlaw status, he had been elected to Parliament (again) in April 1768. He was the subject of riots in the nights following his surrender; and it is reported that 11 persons were killed as a result of the public outcry over his imprisonment. (Matter of fact, it’s also reported that the anger over the issues surrounding Wilkes’ arrest was so profound that it reached across the Atlantic...so profound that the cities of Wilkes-Barre, Pa., and Wilkesboro, N.C. bear his name.)

A political party, the Wilkites, had sprung up...and so had the Government’s anger over Wilkes’ status, which led to his second expulsion from Parliament, on February 3, 1769. On February 16th, he was reelected—and expelled the next day. Exactly one month later...the voters did it again—and so did Parliament.

The score so far?
The British Parliament, 3; The British Voters, 0.

Round four again went to Wilkes, again temporarily—this time by a vote of 1,143 to 296.

In a move reminiscent of the 2000 US Presidential election, Parliament promptly awarded the seat to Wilkes’ opponent, Colonel Henry Lawes Luttrell.

All the while he was still in prison...and while still in prison he was elected an Alderman of London...then he was released...then, ironically, elected Sheriff...then, in 1774, in a move Ken Livingstone could surely appreciate, he was elected Lord Mayor of London—and then finally (fifth time’s the charm!) he was returned to Parliament....and this time they let him stay, which he did for another 16 years.

So remember, roughly 3500 words ago, when I said in Part One that I could draw a direct line between all of this and the FISA debate today and its impact on the Fourth Amendment?

Well, I’m not going to do it.
Instead, I’ll again let the United States Supreme Court address the question, which they do with great eloquence in Stanford v Texas:

"...As MR. JUSTICE DOUGLAS has put it, "The commands of our First Amendment...(as well as the prohibitions of the Fourth and the Fifth) reflect the teachings of Entick v. Carrington, supra. These three amendments are indeed closely related, safeguarding not only privacy and protection against self-incrimination but `conscience and human dignity and freedom of expression as well...

In short, what this history indispensably teaches is that the constitutional requirement that warrants must particularly describe the "things to be seized" is to be accorded the most scrupulous exactitude when the "things" are books, and the basis for their seizure is the ideas which they contain...No less a standard could be faithful to First Amendment freedoms.

The constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant is dramatically underscored by what the officers saw fit to seize under the warrant in this case...”

And that’s the crux of the argument over the FISA compromise.

Should the protection of freedom from warrantless wiretapping “be accorded the most scrupulous exactitude when the "things" are”...not books, but communications?

When we see how wide a net the warrantless wiretapping program cast, does it teach us a lesson about the “constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant”?

And of course, when the Fourth Amendment is endangered, can the First or the Fifth be safe?

Well, it’s been a long journey, Gentle Reader...but we are at the end.

We began this trip in a garden of lust...then we met two 18th Century bloggers...we found ourselves caught up in the struggle over general warrants (which sound mighty familiar in the “warrantless wiretap” context)...and then two extremely important trials...and then the connection between the names of some of our cities and Wilkes...and finally, as I promised, we drew a straight line between the distrust of an overly intrusive Government and our own demands for freedom...which are today again under attack.

The circle has been closed, and with that, I bid you good day.

On The Weird Twists Of History, Part One, Or, Why We Have A Fourth Amendment

This may be one of the strangest tales I have ever brought to the table, Gentle Reader, and yet one of the most fundamental in describing the birth of our Bill of Rights...and most especially the Fourth Amendment.

As many of you know, the new FISA compromise may or may not allow warrantless wiretapping of American citizens on a wholesale scale.

Something you may not know is that a similar debate raged in England (centered around the right of Government to seize the papers of whomever they chose, and use the papers as evidence against those persons) during the reign of King George III—or that it involved scandalous sexual behavior, Benjamin Franklin, the 18th Century version of blogging, and two men who decided to take on the corruption of the Crown...and won.

And because of all that, we have a Fourth Amendment today.

Ready for a tale of liberty and ribaldry?
Then let’s plunge right in, shall we?

So you live in 18th century England, you’re rich...and kind of bored.
What is a gentleman to do?

Well as it turns out, one option is to buy an old monastery, expand the cave system underneath, open yourself a well-appointed “garden of lust” with a really cool Latin motto (“Fay Ce Qve Vovdras”...”Do As You Will”), and invite a few of the most powerful men in England...and the Colonies...to join you in heavy drinking and crazy escapades that involve, to give just one example, shipping in prostitutes from London dressed up as nuns for an evening’s entertainment.

Which is exactly what Sir Francis Dashwood did in the village of West Wycombe; just six miles north of London by way of the River Thames.

It was a fabulous situation...the Abbey was secluded, on top of a hill, and shrouded by a grove of trees. The only access to the caves was by boat—and that meant it was possible to hop on a boat in London...and hop off, at the caves, unobserved...and then later, still unobserved, head back home, polite society none the wiser.

The “Monks of Medmenham”, as the group’s members called themselves (they did not call themselves “The Hellfire Club”, legends notwithstanding), did indeed include some of the most important of the English landed gentry (and, it was rumored, some of their wives...): including the Earl of Sandwich, Benjamin Franklin, and the man who will be one of the two focal points of today’s discussion, John Wilkes.

But the thing is, eventually all that romping gets a bit old; and a gentleman again finds himself with time on his hands...

Wilkes was a man with political ambition, and so he set about bribing the local voters to obtain a seat in Parliament...only to find his party tossed out of leadership and into the role of the opposition—which turned out to be perfect for somebody inclined to this sort of humor:

When the Earl of Sandwich, a sometime friend, told him that "you will die either on the gallows, or of the pox," Wilkes said, "That must depend on whether I embrace your lordship's principles or your mistress."

--Jack Lynch, from the article “Wilkes, Liberty, and Number 45”

To take the story further we need to know that King George III (who saw “The Madness of King George”?) chose as his Prime Minister his former “finishing tutor”, John Stuart, the Earl of Bute. The new Earl had quite a personal history of his own; in fact there were questions as to whether the new King’s mother and the new Earl had a personal history of their own.

Another item of shared personal history: the new Earl and Wilkes were both members of the Monks of Medmenham.

The Earl of Bute had a problem getting his program through Parliament, and to overcome his inability to “talk up” his ideas (some suggest he experienced antipathy because he was a Scot...something Gordon Brown might well understand) he published “The Briton”, a newspaper published in London...which saw Wilkes answer with “The North Briton”, which, in a time and place that had no free press, began its very first issue of June 5, 1762, thusly:

The liberty of the press is the birth-right of a Briton, and is justly esteemed the firmest bulwark of the liberties of this country. It has been the terror of all bad ministers; for their dark and dangerous designs, or their weakness, inability, and duplicity, have thus been detected and threwn to the public, generally in too strong and just colours for them long to bear up against the odium of mankind. Can we then be surpriz’d that so various and infinite arts have been employed, at one time entirely to cast aside, at another to take off the force, and blunt the edge, of this most sacred weapon, given for the defence of truth and liberty?

This shot across the bow having been fired; Wilkes proceeded to lay 44 more broadsides into the hull of Government, including this quote from the final “The North Briton”, No. 45, in reference to the Earl’s resignation from Government, and the rumors that he still pulled the strings from behind the scenes:

The Scottish minister has indeed retired. Is his influence at an end? Or does he still govern by the three wretched tools of his power, who to their indelible infamy, have supported the most odious of his measures, the late ignominious Peace, and the wicked extension of the arbitrary mode of Excise? The North Briton has been steady in his opposition to a single, insolent, incapable, despotic minister, and is equally ready, in the service of his country, to combat the triple-headed, Cerberean administration, if the Scot is to assume that motley form.

You cannot talk about the Government in this way without consequences, and...well, we’ll come back to that in a minute.

Before we do, I want you to meet John Entick. Entick began his professional career as a schoolmaster, then an author. He had a bit of an eclectic taste—his first book being a Latin grammar, then a book on theology...and in an ironic twist, he at one point tried to publish an edition of Chaucer. He was also famous for his dictionary.

Entick was as upset by the political situation as Wilkes, and he found his voice in “The Monitor, or the British Freeholder”, which was where he wrote this:

...Now, although he allows, that “These Mixed constitutions [as opposed to absolute monarchy] are the very best, that human wisdom could ever discover for the regulation of human societies; yet that these, though perhaps productive of fewer evils, than either of the other, must necessarily partake of the evils belonging to both, and be supported by more or less violence, as they more or less approach the despotic; or of corruption, as they come nearer to the democratic principles: for corruption must always increase in due proportion to the decrease of arbitrary power; since where there is less power to command obedience, there must be more bribery to purchase it, or there can be no government at all...”

You’ll recall my saying that there would be consequences for selling this sort of thing in King George’s and the Earl of Bute’s England, and here’s where we start getting to the heart of the story.

But not today.

Instead, in a development worthy of Luke and Laura, we’re employing the cliffhanger...so come back in about 36 hours, and we’ll have the King’s messengers roaming the countryside, a spectacular trial or two—and a guy who gets elected to Parliament from his jail cell four times in four months.

And of course, when it’s all over...the United States will have a Fourth Amendment.