By
Andrew P. Napolitano
“The Framers … conferred, as against
the Government, the right to be let alone —
the most comprehensive of rights, and the
right most valued by civilized men.”
— Justice Louis Brandeis (1856-1941)
February 13, 2020 "Information
Clearing House" - While we
were all consumed by impeachment, a pernicious piece
of legislation was slowly and silently making its
way through Congress. It is a renewal of Section 215
of the Patriot Act.
The Patriot Act of 2001 has three sections that
are scheduled to expire on March 15. One of those
sections is the infamous 215, which authorizes the
federal government to capture without a warrant all
records of all people in America held by third
parties.
Do we really want the federal government to spy
without warrants? How can Congress, which has sworn
to preserve, protect and defend the U.S.
Constitution, legislate such a blatant violation of
it? Here is the backstory.
Are You Tired Of
The Lies And
Non-Stop Propaganda?
|
After the Constitution was ratified in 1789, it
was soon amended to recognize the existence of
natural rights and to keep the government from
interfering with them. As Justice Louis Brandeis
wrote 140 years afterward, the most comprehensive of
those rights was the right to be let alone, which
today we call privacy.
To secure that right, the Fourth Amendment was
ratified. The purpose of the Fourth Amendment was to
prevent the government from utilizing general
warrants and to require judicially authorized search
warrants issued under narrow circumstances. James
Madison, who drafted the Constitution and the Bill
of Rights, shared the hatred that
colonists-turned-Americans had for general warrants.
A general warrant was a document issued by a
secret court in London authorizing the bearer of the
document, usually a British soldier or intelligence
agent, to search wherever he wished and to seize
whatever he found. The applicant for the warrant
needed to demonstrate to the court only that the
warrant was intended to unearth something that the
government wanted. Because these warrants did not
specify the object of the search, there was no limit
to them.
Hence Madison’s language in the Fourth Amendment
preserving privacy but permitting the government to
invade it only upon a showing, under oath, of
probable cause of crime, and then requiring the
warrant to specify in writing the place to be
searched or the person or thing to be seized.
After 9/11, in the collective spirit of fear,
timidity and subservience to the presidency, and in
utter disregard for its members’ oaths to uphold the
Constitution, Congress enacted the Patriot Act. It
permits one federal agent to authorize another
federal agent to search and seize whatever the
latter wishes to look at and capture so long as it
is in the possession of third-party financial
institutions.
Over the years, the definition of “financial
institution” has been radically expanded by both
legislation and presidential executive orders so as
to include nearly every conceivable entity that has
any records about any person in America — from banks
to hospitals to lawyers to merchants to credit card
issuers to telecoms and computer service providers
and even the post office.
At the same time that the Patriot Act was being
expanded, the National Security Agency — America’s
60,000-person strong domestic spy apparatus — was
not even pretending to follow legislation. We know
from Edward Snowden’s revelations — which have never
been disputed by the government — that since 2003,
the NSA has captured not only the records of
Americans held by third parties but also the records
of every keystroke touched by every person in
America and every telephone call transmitted over
fiber optic cable. That includes every email, text
message and piece of data — even what was deleted.
This warrantless mass surveillance continues today
unabated.
Also unabated and equally unlawful and
unconstitutional is the government’s use of cell
towers as monitors of movement. Whenever anyone
travels with a mobile device in the United States,
the nearest cell tower picks up signals from the
mobile device, even turned off. The government,
which either owns the cell towers or under Section
215 captures all the data the towers amass, can
effectively follow any person with a mobile device
in real-time.
How does the government get away with this?
The feds have labored mightily to keep all of
these constitutional violations as far from judicial
scrutiny as they can. They rightly fear — they know
— that all of this violates the Fourth Amendment. If
their nefarious behavior, which we know they have
used on the president of the United States and on
the U.S. Supreme Court, comes under judicial
scrutiny, the feds will argue that the Fourth
Amendment only pertains to criminal prosecutions and
not to domestic spying; thus, they can ignore it
when they spy.
They have made up this argument out of thin air.
There is neither a hint in the language of the
amendment nor a whiff in its history to support that
argument.
Has the government lost sight of our birthright?
It is life, liberty and the pursuit of happiness —
not to mention getting into Heaven. How can we do
any of this if the government we have hired to
preserve our liberty is surreptitiously destroying
it?
Brandeis’ language about being let alone was
written in 1928, in a dissent to a Supreme Court
opinion that failed to recognize the right to
privacy. Today, his dissent is the law of the land,
but the feds ignore it. He wrote that there is more
to life than owning material goods. There is the
fulfillment of spiritual, intellectual and cultural
goals and the achievement of intimate aspirations,
none of which are the government’s business.
Why do we permit the government to assault our
most basic freedoms, under the law or under the
table?
Andrew P. Napolitano, a
former judge of the Superior Court of New
Jersey, is an analyst for the Fox News
Channel. He has written seven books on the
U.S. Constitution.
Do you agree or disagree? Post
your comment here
==See Also==