Welcome aboard, Moby. So glad to hear from you! Now we have someone who can address the questions raised here from the viewpoint of having been where the rubber meets the road. I suspect I have outworn my welcome.
Sir, the watch is relieved, Moby!
In closing, it definitely appears to me that the common theme of those who question the Coast Guard's authority under the 4th Amendment, comparing that of the Coast Guard with that of the cop stopping your car alongside the road, simply do not understand "the circumstances" in the expression "reasonable under the circumstances." That is the
quite reasonable concern expressed time and again. I can only say that if they had been privileged to go to sea with you, Moby, if they were subject to military regulations requiring them to go out, regardless of the conditions, without anything in those regulations saying that they had to return, then they might, just might, see a little difference in "the circumstances."
This is where the difference lies. It is a matter of what the Constitution, as amended,
means. Each and every one of us has, thank God, the right to have and express his or her opinion on that. But when push comes to shove, though, some opinions on that have more weight than others. I have not, contrary to what might appear, been laying my personal opinons here before the forum -- I have instead tried, and not very well, to explain the reasoning behind those who have given their opinions, clearly contrary to the opinions of some, and have had their opinions understood and upheld by the final authority in picking one of those diverse opinions -- the federal judiciary -- those who have the constitutional duty to decide what the Constitution means.
My old age has caused my memory to fail me at times, and I forgot to tell a little story here. Perhaps, just perhaps, it might shed just a little light on how decisions about "the circumstances," for example, come to be made by those in authority.
It may surprise some to learn that the first predecessor of the federal statute discussed above, now Title 14, United States Code, Section 89, was enacted before the 4th Amendment became a part of our Constitution. If there is any interest, I will take the liberty of repeating here the words of that statute, among the very first enacted by our very first Congress way back in 1789, just to make reference back to it easier. The Bill of Rights, including the 4th Amendment, finally found its way through our difficult Constitutional amendment process in 1790. That predecessor statute, which has said essentially the same thing since 1789, said:
“It shall be lawful for all collectors, and the officers of the revenue cutters herein after mentioned, to go on board of ships or vessels in any part of the United States, or within four leagues of the coast thereof, if bound to the United States, whether in or out of their respective districts, for the purposes of demanding the manifests aforesaid, and of examining and searching the said ships or vessels; and the said officers respectively shall have free access to the cabin, and every other part of a ship or vessel”
Before one jumps to a reasonable, but incorrect conclusion, to wit, that the 4th Amendment invalidated that statute, we must look at history the way our federal government, including its judiciary, has looked at it.
Those great men who devised our Constitution, including the Bill of Rights, were largely the same men who served in that first Congress. When they enacted 14 U.S.C. 89 the 4th Amendment was out there being considered by the American people, through their more local representatives, after being drafted and approved, as I said, by essentially the same men. That greatest collection of Americans ever to meet together in one room, understood what, under these circumstances, a "reasonable" search was. They were a collection of traitors to George III's kingdom of Great Britain, subject to be hanged by the neck until dead if they had not unbelievably defeated Great Britain, then the world's greatest military power, with their ragtag army. They had lived through "unreasonable" searches by agents of the crown, both civilian and military, and they knew precisely what they were talking about when they approved both 14 U.S.C, 89 and the 4th Amendment practically concurrently, and they saw nothing inconsistent between the two.
Those who relish the thought of "strict construction" of the Constitution, and there are plenty of those here on this forum, particularly when the 2nd Amendment is considered, will see here a prime example of strict constructionism. Our Congress has through the years amended the statute, mainly to use more modern English phraseology, but the meaning remains, and our judiciary has continued to approve the terms of that statute when challenged, taking full note of the history which may not be well known by some, while taking full note of the view of "the Founding Fathers."
That is the best I can do. I'll let you take it from there, Moby, not from the viewpoint of the lawyer, but from the viewpoint of the man on the firing line.
Thank you for your service, Moby. I salute you
and take my hat off
to you and all those dedicated young men and women who take up the challenge offered by our small, but very busy and very proud, service.
Jim