Threat to Pennsylvania’s Declaration of Rights Turned Back — For Now

On the close of the legislative day on June 28, the Pennsylvania General Assembly began its summer recess, having almost — but not quite — completed its agenda of legislation waiting to be acted upon. For weeks the news had been filled with reports and editorials regarding their wranglings over the budget and workers compensation reform.

But for all of the attention given to those and other important issues, one piece of legislation of truly historic magnitude went largely unreported, and fortunately, unenacted: A proposed amendment to the state constitution that would have repealed Section 8 of the Declaration of Rights, words that have survived almost verbatim since Benjamin Franklin penned them in 1776.

Article I, Section 8 of Pennsylvania’s constitution was the historic predecessor, and model for, the Fourth Amendment of the Bill of Rights of the federal Constitution, guaranteeing the citizens’ right to be secure from unreasonable or warrantless searches and seizures. At first glance, the proposed amendment to Section 8 appears quite innocent. It states that interpretations of unreasonable search and seizure “shall be identical to those mandated by the Fourth Amendment of the Constitution of the United States, as interpreted by the United States Supreme Court.”

The problem with this amendment is that by defaulting its interpretation to the U.S. Supreme Court, it renders that section of the state constitution nothing more than nice but powerless words on paper. It removes all decisions regarding search and seizure from the discretion of our state courts.

At present, we already have — at minimum — the full protection of the U.S. Supreme Court. No state court in the nation may legally construe civil liberties less strictly than do the federal courts. However, they can, and often do, construe them more strictly. Thus, by defaulting any portion of our state’s Declaration of Rights solely to federal discretion, Pennsylvania citizens would lose a level of protection, and leave themselves vulnerable to the unknown politics of U.S. Supreme Court appointees yet to be nominated.

The driving forces behind this legislation were the Republican Party and the Pennsylvania District Attorneys Association. Following recent revelations of police abuses involving evidence-planting and false testimony, that resulted in the overturning of dozens of convictions, the state law enforcement community argued that state courts were far too restrictive. They pointed to a history of federal courts often looking the other way when police and federal agents play fast and loose, and decided convictions would be much easier to obtain if they could erase 220 years of strict state precedents.

Using a tactic that had served them well in getting similar amendments enacted in the past, Republicans in the General Assembly conspired to allow the legislation to languish unnoticed for months, then to pass it quickly and almost secretly, to be put on the ballot for voter approval before an organized opposition movement could form. District Attorneys circulated horror-stories of criminals getting off on “technicalities,” that could be used in their campaign to have Pennsylvanians vote away their civil rights.

Fortunately, a coalition of strange bedfellows took last minute action to stall the legislation. Almost simultaneously the American Civil Liberties Union, The National Rifle Association, Gun Owners of America, and virtually every Pennsylvania sportsmen’s organization utilized their grassroots networks to undertake a last-minute campaign to stall the fast- moving legislation. Coming up for a quick vote in the House of Representatives on June 25, the bill instead was recommitted to the Judiciary Committee by a vote of 112 – 90.

Every Bucks County Republican State Representative voted to move forward with the amendment. Both of Bucks County’s Democratic State Representatives voted against such action. As the momentum of resistance to the idea increased across the state, Republican attempts to bring it back to the floor before summer recess failed.

Pennsylvanians who think the principles expounded by Benjamin Franklin in 1776 — and reaffirmed in our state constitutions in 1790, 1838, 1874 and 1968 — have served us well, have been granted a reprieve from a subtle but serious loss of their civil rights. The reprieve may be brief. We have been warned, and it is not too early for us to broaden our base of defense against another such onslaught. With the increase in the use of dynamic entry and military assault-style tactics by paramilitary police troops against gun owners in recent years, it is vital that law enforcement officials be held to the highest and strictest procedural standards, and not be given an additional incentives to adopt Gestapo tactics.
(Andy Barniskis is Chairman of the Legislative Committee of the Bucks County Sportsmen’s Coalition, a GOA allied group)