Volokh Conspiracy: An update to the Virginia constitution that the General Assembly should pass over

A few weeks ago, Virginia Delegate Rich Anderson (R) and Senator Richard Stuart (R) introduced an amendment in the Virginia General Assembly, HJR 578, which would amend the Virginia constitution by replacing the state equivalent of the Fourth Amendment with an all new version designed to be an update for the 21st century. A reader asked me for my opinion of the proposal. This post provides it.

My overall assessment is that this proposal isnt ready for prime time. First, its a truly radical set of ideas. It would restrict police power to enforce the law in dramatic ways far beyond anything seen before. Second, its a grab-bag of different police restrictions, many poorly drafted and murky as to their scope. And ironically, several of the proposed changes actually arent likely to be changes at all. Theyre drafted in odd ways that probably miss their intended targets.

Heres some context to understand my reaction. The Virginia state constitution has a search and seizure provision that dates back to 1776 and was part of George Masons original Virginia Declaration of Rights. Heres the text:

That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

For most of Virginias history, this provision was the primary protection of search and seizure law that regulated Virginia law state and local law enforcement. In 1949 and 1961, however, the U.S. Supreme Court held that the federal Fourth Amendment also applies to state and local governments under the Due Process clause of the Fourteenth Amendment. As a result of those U.S. Supreme Court developments, state constitutional protections play little or no role in most states. Most state Supreme Courts interpret their state constitutions to match or mostly match the federal Fourth Amendment, and the federal Fourth Amendment already provides a floor below which state and local officials cant go.

Virginia is one of those states. The Supreme Court of Virginia has concluded that the requirements of Virginias 1776 search and seizure provision are substantially the same as those contained in the Fourth Amendment. Lowe v. Commmonwealth, 230 Va. 346 (1985) (quoting A. Howard, I Commentaries on the Constitution of Virginia 182 (1974)). States are certainly free to do more. Either by judicial construction, or by express textual amendment, states are free to enact greater protections that will regulate state and local governments more than the federal government. But its an option, not a requirement, and so far Virginias constitution hasnt gone beyond the federal Fourth Amendment.

The new proposal would change that. The proposal would replace George Masons 1776 language in its entirety with the following new language:

That the government shall not violate the right of the people to be secure against unreasonable searches and seizures of their persons, houses, businesses, lands, papers, and effects, including communications and stored personal information and data. A reasonable search or seizure is one based on probable cause that a law has been or will be broken. An unreasonable search or seizure is one that is not based on a valid law. Warrants and other demands shall be issued only based upon probable cause, signed by a neutral judge or magistrate, supported by oath or affirmation, and particularly describing the place to be searched, the persons, property, or things to be seized, or the communications, personal information, or data to be accessed or obtained. A persons disclosure of papers, effects, communications, personal information, or data to another person shall not alone constitute a waiver of this right. The people shall have remedies of exclusion and actions for damages and other remedies wherein defendants shall not enjoy greater immunity than other citizens of the Commonwealth.

What is this language supposed to do? Good question. Just reading it, its somewhat hard to tell what the drafters were thinking. In the Washington Examiner, however, Ken Cuccinelli and Mark Fitzgibbons (C&F) offer an endorsement of the proposal that gives a relatively detailed explanation of it. Its the most thorough discussion I have found, and it gives us enough context to evaluate the proposed amendment sentence-by-sentence.

Lets start at the beginning with the first sentence:

See the original post here:
Volokh Conspiracy: An update to the Virginia constitution that the General Assembly should pass over