Don’t misunderstand me: I do not like Rush Limbaugh and I never have. In my opinion, he was one of the first clues that it would eventually become impossible to have real news and intelligent discourse — or to appreciate the difference of the one from the other — concerning important events and issues of our time. And, of course, that is the situation today. You’re more likely to get reliable news from a blog entry than from television; in other words, you can just about give up on getting reliable news.

However, one has to wonder how the Constitution — or at least the Bill of Rights — can possibly retain any meaning if prosecutors are allowed to peruse people’s medical records “to see whether they suggest criminal conduct or not.”

The issue here isn’t one of “we know there’s some evidence that shows a crime has been committed and we want it.” The issue isn’t one of “these are not personal papers within the meaning of the Fourth Amendment to the Constitution (e.g., the ‘Bill of Rights’ our predecessors lived by, but which is increasingly unavailable to us).” The issue isn’t even really one of “probable cause.” It’s more like “reasonable suspicion.” In other words, a fishing expedition through the highly-personal medical records of a United States citizen.

The term “probable cause” is sometimes used synonymously with “reasonable cause.” (Sachar, Overview of Arkansas Warrantless Search and Seizure Law, 23 U. Ark. Little Rock L. Rev. 423, 429.)

Arkansas uses the term “reasonable cause” synonymously with the term “probable cause.” The Arkansas Supreme Court has explained that the Arkansas Rules of Criminal Procedure pertaining to arrest, search, and seizure, use the term “reasonable cause” in preference to “probable cause,” out of fear that the term “probable cause” might imply that the existence of facts must be “more-probable-than- not.” The Arkansas Rules of Criminal Procedure define reasonable cause as the “basis for belief in the existence of facts which, in view of the circumstances under and purposes for which the standard is applied, is substantial, objective, and sufficient to satisfy applicable constitutional requirements.” Arkansas recognizes no substantive difference between the two terms. The standard for reasonable cause is an objective standard; thus, an officer’s subjective belief that reasonable cause was or was not present is not determinative. (Sachar, supra., footnotes deleted.)

While “probable cause” may be considered to be synonymous with “reasonable cause,” it is not synonymous with “reasonable suspicion.” A “suspicion” is “a state of mental uneasiness or uncertainty.” (Merriam-Webster Dictionary, definition online.)

Hence there are two problems with the granting of the prosecution’s request as to Limbaugh. First, in this case, the prosecutors are uncertain what, if anything, they will find; they’re hoping to see “whether [the records] suggest criminal conduct or not.” In other words, all they really have is suspicion, a mental uneasiness or uncertainty. The Fourth Amendment, however, calls for probable cause, not possibilities, doubts, uneasiness, or uncertainty. Second — and only different by a shade — is that here it is the hope (not even really rising to the level of a “belief”) that something will be found which might “suggest” criminal conduct in Limbaugh’s highly-personal medical records for which he has more than a reasonable expectation of privacy. That’s not “prove criminal conduct,” by the way; that’s “look to see if maybe we can find something to suggest there might have been a crime. In any case, “hopes” and “beliefs” are subjective entities. Yet “the standard for reasonable cause is an objective standard.” (Sachar, supra. See also Brinegar v. United States (1949) 338 U.S. 160 (noting need to distinguish between “mere suspicion” and “probable cause” when considering privacy rights.))

The erosion of civil liberties that began with the decimation of the World Trade Center is picking up its pace.

In failing to react to the increasing governmental circumscription and abrogation of personal liberties, we would be wise to consider a paraphrase — a modernization, if you will — of Pastor Martin Niemöller’s famous quote regarding the moral failure of the world in the face of the Holocaust.

First, they came for the terrorists, and I did not speak out because I was not a terrorist. Then they came for the American-born enemy combatants, and I did not speak out because I was not an American-born enemy combatant. Then they came for those accused of other crimes, and I did not speak out because I was not accused of other crimes. Then they came for ordinary citizens like me, there was no one left to stand up for me.

This is not in the least to minimize the horrors of the Holocaust by comparing it to the trampling of the Bill of Rights — and certainly not to the invasion of someone’s medical records. The point here is that silence in the face of eroding civil liberties eventually hurts all citizens.

The purpose of the Bill of Rights, as conceived by the Founding Fathers of this great nation we call the United States, was to protect all citizens from the government. The Founders knew quite well the dangers of powerful governments. They fought a war to free themselves from one and to establish these United States. And they greatly feared the possibility that their creation would eventually go down that same path. Thomas Jefferson insisted that without proper safeguards it would certainly do that, as this was the natural propensity of governments. The attititude of anti-Federalist Samuel Bryan pretty much summed up the fears of all the founders “The United States are to be melted down,” Bryan declared, into a despotic empire dominated by “well-born” aristocrats. (See “A More Perfect Union: The Creation of the U.S. Constitution,” online here.)

“Well-born aristocrats”…. You couldn’t ask for a better description of Bush, Cheney and their friends — rulers of the corporate empires that have become so much more powerful than the United States that they now set domestic and, increasingly, foreign policy. Some even believe they have usurped the power of Congress by declaring wars. (Bush says he, and not Congress, has that right. Bush has apparently not read the Constitution of the United States, Article I, Section 8, clause 11, which states that Congress has that right.)

And you, the American people, are more than willing to stand by and allow all this, just as the Founding Fathers predicted you would.

America’s Founding Fathers knew that this historical model would repeat in America, despite an enumerated Bill of Rights. Benjamin Franklin said Americans would lose their liberty “when the people shall become so corrupted as to need Despotic Government…” Sam Adams predicted of Americans, “…once they lose their virtue they will be ready to surrender their liberties to the first external or internal invader.” President George Washington warned Americans in his farewell address, “…cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people…”. (FoundingFathers.com, article hyperlinked above and here.)

It started with ignoring the Constitution in the name of national security. And it is trickling down into the more mundane aspects of formerly constitutionally-mandated restrictions on governmental power: the right to search and seize anything the government feels it needs to advance its purposes, noble or ignoble.

I do not like Rush Limbaugh and I never have. I like a despotic, out-of-control government even less.