"The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as 'unreasonable,' and they are not embraced within the prohibition of the amendment." (Emphasis supplied.)
This interpretation that border searches were not subject to the warrant provisions of the Fourth Amendment and were "reasonable" within the meaning of that Amendment has been faithfully adhered to by this Court. Carroll v. United States, 267 U.S. 132 (1925), after noting that "[t]he Fourth Amendment [431 U.S. 606, 618] does not denounce all searches or seizures, but only such as are unreasonable," id., at 147, recognized the distinction between searches within this country, requiring probable cause, and border searches, id., at 153-154.
Justice Rehnquist seemed to lose sight of the fact the the purpose of granting broad discretion with respect to border searches was tied to searches and seizures related to violations of customs laws (limiting immigration was not of concern to Congress at the time these rules originally were adopted in 1789). Although Justice Rehnquist cited the Supreme Court case of BOYD v. UNITED STATES, he ignored some important legal considerations stated by the Supreme Court in the case of BOYD v. UNITED STATES:
The principal question, however, remains to be considered. Is a search and seizure, or, what is equivalent thereto, a compulsory production of a man's private papers, to be used in evidence against him in a proceeding to forfeit his property for alleged fraud against the revenue laws--is such a proceeding for such a purpose an 'unreasonable search and seizure' within the meaning of the fourth amendment of the constitution? or is it a legitimate proceeding? It is contended by the counsel for the government, that it is a legitimate proceeding, sanctioned by long usage, and the authority of judicial decision. No doubt long usage, acquiesced in by the courts, goes a long way to prove that there is some plausible ground or reason for it in the law, or in the historical facts which have imposed a particular construction of the law favorable to such usage. It is a maxim that, consuetudo est optimus interpres legum; and another maxim that, contemporanea expositio est optima et fortissima in lege. But we do not find any long usage or any contemporary construction of the constitution, which would justify any of the acts of congress now under consideration. As before stated, the act of 1863 was the first act in this country, and we might say, either in this country or in England, so far as we have been able to ascertain, which authorized the search and seizure of a man's private papers, or the compulsory production of them, for the purpose of using them in evidence against him in a criminal case, or in a proceeding to enforce the forfeiture of his property. Even the act under which the obnoxious writs of assistance were issued [FN2] did not go as far as this, but only authorized the examination of ships and vessels, and persons found therein, for the purpose of finding goods prohibited to be imported or exported, or on which the duties were not paid, and to enter into and search any suspected vaults, cellars, or warehouses for such goods. The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo. In the one case, the government is entitled to the possession of the property; in the other it is not.
The fact the very first session of Congress had authorized searches and seizures without warrants and without probable cause for the purpose of enforcing customs laws at international borders, and also had proposed the Bill of Rights for ratification two months later, is a compelling argument that Congress did not consider that the Fourth Amendment prohibited searches and seizures without warrants and without probable cause for the purpose of policing violations of customs laws at international borders. Having determined that probable cause was not a prerequisite for border searches and seizures for the purpose of enforcing customs laws, Justice Rehnquist then expanded his analysis in the case of UNITED STATES v. RAMSEY to reason that international mail can be subject to searches and seizures without probable cause:
Congress and the applicable postal regulations authorized the actions undertaken in this case. Title 19 U.S.C. 482, a recodification of Rev. Stat. 3061, and derived from 3 of the Act of July 18, 1866, 14 Stat. 178, explicitly deals with the search of an "envelope":
"Any of the officers or persons authorized to board or search vessels may . . . search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law . . . ."
However, as Justice Rehnquist himself noted in the case of UNITED STATES v. RAMSEY, the right to search for contraband at international borders, without warrants and without probable cause, did not apply to communications:
The statute in question requires that there be "reasonable cause to believe" the customs laws are being violated prior to the opening of envelopes. Applicable postal regulations flatly prohibit, under all circumstances, the reading of correspondence absent a search warrant, 19 CFR 145.3 (1976):
"No customs officer or employee shall read or authorize or allow any other person to read any correspondence contained Sealed letter mail of foreign origin unless a search warrant has been obtained in advance from an appropriate judge or U.S. magistrate which authorizes such action."
The facts in the case of UNITED STATES v. RAMSEY were that the envelopes which had been opened had characteristics that raised suspicion about the contents of these envelopes. Therefore, even Justice Rehnquist recognized that the right of the government to open international mail is not unconditional and is not a right that can be exercised at random. This should negate any application of the "border search" exception to the Terrorist Surveillance Program.
It is ironic that Justice Rehnquist cited the case of BOYD v. UNITED STATES to support his determination, yet he failed to understand the most important message of the decision in the case of BOYD v. UNITED STATES:
Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis. We have no doubt that the legislative body is actuated by the same motives; but the vast accumulation of public business brought before it sometimes prevents it, on a first presentation, from noticing objections which become developed by time and the practical application of the objectionable law.
The authority of the Government to conduct border searches without regard to probable cause originally was limited to reasonable searches and seizures that were related to potential violations of customs laws, and this authority did not and does not apply to mere correspondence (written or oral). The authority of the Federal Government to conduct border searches, without regard to probable cause, has been extended beyond the original scope of this authority, and although the extension of this authority may have some practical benefits, it has tenuous support in the Constitution. A search for weapons in imported cargo containers could be viewed as a reasonable invasion of the privacy of the owner of the cargo container, but a search of all communications entering the United States is not reasonable. United States citizens and other legal residents do not lose our constitutional rights with respect to our own government when we travel outside of the United States. Despite the fact that border searches may be conducted in the absence of probable cause, and although some court decisions have stripped away some Fourth Amendment protections by relying on an expansive definition of "probable cause" and an expansive definition of "reasonable", probable cause still is required before the government legally may intercept electronic communications of U.S. citizens and other legal U.S. residents, even in situations which might not necessarily require a warrant.
THE PRESIDENT DURING WARTIME
During a state of war (regardless of whether the state of war is officially declared by Congress), individual liberties are in greatest peril due to the tension between liberty and security, and it is during wartime that the president has the most flexibility to exercise his authority as Commander-in-Chief. Due to the sad state of our current educational system, many Americans may not recall that approximately 120,000 Japanese-Americans (more than 60 percent were U.S. citizens) were confined to concentration camps from May 1942 until January 1945 as a result of fears by political leaders, by military leaders and among other Americans that these Japanese-Americans were a security risk during wartime. In the case of KOREMATSU v. UNITED STATES (1944), the Supreme Court upheld the President's authority (under Executive Order No. 9066 issued in February 1942 that was sanctioned by an act of Congress in March 1942) to deny due process of law and equal protection of the law to these Japanese Americans. In a dissenting opinion, Justice Frank Murphy stated:
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