Evening star. [volume] (Washington, D.C.) 1854-1972, 1930-02-03
Fundamental Rights.

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Senator Howell defends the search
and-seizure provision of his local en-
forcement bill by recalling that its Ian
guage is not so drastic nor as far
reaching as the language Of the Shep-
pard act and that in nearby Maryland
and Virginia State laws go even further
than he does in setting forth the
grounds upon which search warrants
shall issue.
Granting Senator HowelI's argument,
there is this much to say about the
Sheppard act, enacted three years be-
fore prohibition, and about the Virginia
law, now about sixteen years old: When
they became effective the bootlegger and
the moonshiner was a rare species Of
criminal and pretty much beyond the
pale Of polite society. Home-brew was
unknown and dozen empty beer bot
ties in the trash barrel was nothing to
start the neighbors gossisiug. And If a
policeman chased and shot q fleeing
criminal, or broke down a door and en-
tered a private dwelling in pursuance
Of his lawful duty, he was more apt to
be applauded than condemned. Few re-
garded these early statutes except In
their application to a criminal class.
Times, however, have changed
whether for better or for worse depend
ing altogether upon the individuals
philosophy concerning the responsible
ties of citizenship.
As for the Maryland statutes, the old
Free State" is not a happy example of
"model enforcement" of the dry laws.
From one point o. view there is not
great deal of danger 10 the wording
OF statutes regarding search and seizure,
provided, of course, that the statute is
not abused, for the courts have held
that "the question whether a seizure or
q search is unreasonable in the Ian
guage Of the Constitution is a judicial
and not legislative question, but In de-
termining whether a seizure is or is not
unreasonable, all of the circumstances
must be looked into"
The danger lies in the opportunity
presented for abuse of the law, for the
exercise of tyranny cloaked in author
tty, for malicious persecution and for
the invasion Of constitutional rights
that takes place long before a court can
declare, with due solemnity, that the
search was illegal.
In granting that Senator Howell's
sincere motive Is to get at the boot
logger who operates commercial still
behind the closed doors Of an alleged
private dwelling, secure in the knowl-
edge that the fourth amendment will
probably protect him in his evasion Of
the laws enforcing the eighteenth, we
must remember the principle that This
protection reaches all alike, whether
accused Of crime or not, and the duty
Of giving to it force and effect is obliga-
tory upon all entrusted under our Fed
eral system with the enforcement of the
laws. The tendency Of those who exc
cute the criminal laws of the country
to obtain conviction by means Of un-
lawful seizures and enforced Confessions
should find no sanction in the
judgment of the courts which are
charged at all times with the support
Of the Constitution and to which peo-
pie of all conditions have right to ap-
peal for the maintenance of such funda-
mental rights" (Weeks v. U. s., 2S2
q. s. 1922
Senator Howell's bill does not deprive
the bootlegger of his constitutional
rights. per sc, but it opens the door
for acts BY others that win. Unhap-
PLY, the bootleggers and moonshiners
would not suffer alone.
The risk that is run in gambling with
fundamental rights is hardly worth the
big stack Of bootleggers and moon
shiners that might be won in the toss.