The 4th amendment says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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."
It doesn't read: "all searches require a warrant except those specifically listed." The text plainly allows searches that are not "unreasonable."
As a matter of historical practice, borders searches, for customs purposes and otherwise, are considered reasonable. Warrant-less border searches were authorized by the First Congress in 1789.
Thanks. I have to wonder just how you can say that a search which would be unreasonable if performed at e.g. a county border becomes reasonable at a country border.
Because counties are administrative units, while countries are sovereign entities. One of the fundamental characteristics of a sovereign is the establishment and policing of a border. What it means to be a "country" is, among other things, some people getting together to use force to keep other people out. This was the framers' understanding of the world, a world of sovereign entities with borders and a right to police them. Within this framework of understanding, you can't say you don't reasonably expect not to be subject to a search when crossing a border. One of the basic purposes of the Constitution was to invest the federal government with primacy with respect to the national border: preserving it (collective defense), regulating the shipment of goods through it, taxing the shipment of goods through it (customs), etc.
Indeed, one of the primary ways the federal government was to be funded was through taxes on imports, which implies the existence of a customs function at the border. Do you think the framers envisioned a customs system that couldn't enforce its tariffs without getting a court order to search incoming ships? They obviously didn't envision that, because one of the first things Congress did was to set up the framework for warrant-less customs searches.
OK, I think that makes sense. I would generally object to an appeal to tradition like this, but it seems to me that the use of the word "reasonable" is basically an explicit call out to tradition, so I guess that's just how it's written.
Do you know what, if any, limits are placed on border searches? Is literally anything "reasonable" there, or are the limits just different?
The common law process is by its nature an appeal to tradition. If there is a governing principle in our society, it's "this is okay because we've always done it this way." Yes, in a way it's ridiculous because we end up arguing about what people thought about border searches in 1789, but that's the nature of our society. We don't come to a consensus to solve problems, because we never agree on anything. Instead, we litigate them and grudgingly accept the outcomes. That's why court cases feature so prominently in our culture (Brown v. Board, Roe v. Wade, etc). Non-Americans, understandably, usually find it utterly bizarre.
Re: border searches, I'm not well-versed so I'll just point you to the wikipedia page: http://en.wikipedia.org/wiki/Border_search_exception. Long story short, it still has to be reasonable, it's just that the bar is lowered because you should expect to get searched at a border.
Because when the US was established, and still today, customs duties were levied on some imports - this was how the government used to finance itself. People who wanted to evade the customs duty (and then sell the goods to undercut their competitors who had paid it) would attempt to smuggle things across the border. This behavior is prevalent enough that random searches at national borders have been the norm for centuries, along with searches for other things like contraband (drugs, child porn, endangered animals), the occasional spy or fugitive from justice elsewhere, and so on.
You're right about what the 4th amendment really says, and it's so spectacularly inane that I would never believe that educated adults could be fooled if I hadn't seen it personally. It really does just say "the government cannot search you unless the government deems the search reasonable or the government writes a piece of paper saying that it can conduct a search." And people sincerely think that is in any way a protection of rights.
If you view the government as a single entity, then the whole concept is irrelevant since it can amend, or even simply ignore the constitution as whole.
As far as I understand it, the idea is that due to the separation of powers, the people who judge whether a particular search is reasonable are not the same who create and implement them, so yes, there is in theory some protection of rights.
