The Price of Liberty

As we near the end of this tumultuous year of 2024, there is one centennial commemoration we should keep in mind. In a horrible SCOTUS decision in the case Hester v. United States an important, God-given right protected by the US Constitution was gutted.

Are we here at TPOL overly optimistic that The Donald 2.0 regime – and the DOGE in particular – might finally correct this evil? We pray and act to see that it is so. And encourage our readers to help change this.

Though a century old, this shocking and largely under-the-radar development, a Supreme Court ruling effectively allowed the governments (not just Feral but State and local) to trespass on 96% of private land in the United States. This is a shock to many Americans who believe their private property is protected from warrantless government surveillance under the Fourth Amendment. Folks, it ain’t necessarily so!

This significant legal issue is traced back a full century to the 1924 Supreme Court case Hester v. United States. In this case, the Court established the “Open Fields Doctrine,” which states that open fields are not protected by the Fourth Amendment. This decision means that the vast majority of private land, outside the immediate vicinity of a home, is not shielded from government intrusion.

The Institute for Justice (IJ) recently published a study in Cato’s Regulation magazine quantifying the current, real-world impact of this doctrine. They found that approximately 96% of all private land in the country, amounting to about 1.2 billion acres, is unprotected by the Fourth Amendment. This means that warrantless government surveillance can occur on most private property without violating constitutional rights.

An example is the home of several members of TPOL’s staff. The residence sits on almost 2 acres in a large subdivision of 258 houses. Perhaps one in ten (if that) of those houses have fences which totally surround the house or even close off one part of the lot (the backyard or a side yard). Therefore, nearly 230 of the families and landowners cannot keep a government goon from coming up to their house to spy on them.

The Hester decision emerged during a time of heightened government efforts to curb illegal alcohol production before Prohibition. And frankly, to a Court created by the efforts of a series of highly “Progressive” fedgov administrations, including both Teddy Roosevelt and Wilson. Federal revenue agents were eager to locate and confiscate untaxed alcohol, leading to the establishment of this broad exception to Fourth Amendment protections.

Today, the implications of the Open Fields Doctrine are even more profound due to advancements in technology. Government officials can now use drones, cameras, and other surveillance tools to monitor private land without stepping foot on it. This raises significant privacy concerns, as these technologies allow for continuous and detailed surveillance.

The recent media gasps about the mere idea that some Americans might “become vigilantes” and take out the officially-unknown drones flying over their property across many of the States points out the sheer magnitude of this problem.

A recent case in Virginia highlights the personal impact of this doctrine. Josh Highlander purchased 30 acres of secluded land to build a home and raise his family. However, he discovered game wardens trespassing on his property, installing surveillance cameras without his knowledge or consent. This invasion of privacy illustrates the real-world consequences of the Open Fields Doctrine. Even while States like Wyoming see courts trying to decide if a private person stepping over the four-way corner between four properties constitutes an illegal trespass, their own States’ game wardens, boat inspectors, and “property management code” enforcers trespass with impunity.

The Open Fields Doctrine not only affects rural landowners but also sets a dangerous precedent for the erosion of property rights more broadly. If the government can treat private land as public without consequence, this mentality could extend to other areas, undermining the Fourth Amendment’s protections across different contexts. And giving governments even more opportunity to steal not just privacy but money and property from those subject to them.

Some of the questions which are pertinent today include these:

How might the Open Fields Doctrine influence other areas of law and personal freedoms?

What role do state constitutions play in protecting privacy rights, and how can they be leveraged more effectively?

In what ways can citizens advocate for greater transparency and accountability in government surveillance practices?

And perhaps the most important: how long are we (as supposedly free people) willing to put up with the tyranny that American courts allow “our betters” to exercise over us?