By Judge Andrew P. Napolitano
May 10, 2023:
Information
Clearing House -- Last week,
FBI officials boasted that in 2022 their agents had spied on only 120,000
Americans without search warrants! Under the Constitution, that number should be
ZERO.
This revelation is supposed to give members of Congress comfort that the
folks we have hired to preserve, protect and defend the Constitution are in fact
doing so. In reality, the FBI and their cousins at the National Security Agency
continue to assault and violate a core freedom protected by the Constitution —
the right to be left alone.
The reason for the FBI revelation last week is the pending expiration of
Section 702 of the Foreign Intelligence Surveillance Act and the bipartisan
animosity toward its extension.
Section 702 is unconstitutional on its face as it directly contradicts the
core language of the Fourth Amendment. On its face, it permits the feds to
conduct warrantless surveillance on foreign persons who are either physically or
digitally present in the United States and all with whom they communicate —
American or foreign — who are located here.
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Thus, for example, if you call or text or email an art dealer in Florence,
Italy, from your home in New Jersey or your cousin in Geneva, Switzerland, calls
or texts or emails you at your home in California, the FBI can monitor all those
communications without a search warrant. And then the feds can monitor the
future calls you make and texts and emails you send. And then they can monitor
all the communications of the persons you reached and all the persons they
reach. As this expands on and on to the sixth degree, the numbers grow
exponentially to hundreds of millions.
The reason for the search warrant requirement is to prevent a repeat of what
British agents did to the American colonists before the Revolutionary War. Then,
secret British courts in London issued general warrants to British agents in
America, which authorized the bearer to search wherever he wished and seize
whatever he found.
When the British used their general warrants to search colonial homes
ostensibly looking for tax stamps in compliance with the Stamp Act, they were
really attempting to predict who among the colonists entertained revolutionary
ideas that might lead to a revolt against the king.
The existence and the enforcement of the Stamp Act proved so unpopular that
Parliament rescinded it after just one year. But the former bond between
colonials and their king had been irreparably breached and a sea change in
colonial thinking pervaded the land. The core of that sea change was not
taxation without representation; it was "freedom."
To the colonial mindset, freedom had one universal meaning. It meant freedom
from the government — from king and Parliament.
The sea change in colonial thinking resulted in an ideological welcome mat
for the Declaration of Independence. When Thomas Jefferson was holed up in a
Philadelphia rooming house for five days in June 1776 writing and revising the
Declaration, he thought he was crafting the ideological fountainhead of a
minority of landowners who despised the king's autocracy. Yet, within a year,
farmers and laborers joined the popular and bloody revolt that ended in 1783
with freedom from England.
What about freedom from the new government here?
When the Constitution was ratified six years later, it had no amendments and
made no mention of personal liberty. Five of the ratifying states had insisted
upon the promise of the addition of a Bill of Rights as a pre-condition to
ratification.
And so, the first task of the new Congress was to comply with that promise
and craft a Bill of Rights, lest these five states secede from the new union.
What became the Fourth Amendment protected the quintessentially American right
to be left alone.
It states that "the right of the people to be secure in their persons,
houses, papers, and effects" shall be secure and may be violated by the
government only pursuant to a search warrant issued by a neutral judge and based
on probable cause of crime — and the warrant must specifically describe the
place to be searched or the persons or things to be seized.
There is no exception in the amendment for foreign people, bad people,
dangerous people, violent people, people the government hates or fears. By the
plain meaning of its English words, the amendment protects ALL people. There is
no limitation in the amendment to government personnel engaged in law
enforcement. The amendment restrains ALL government. The very purpose of the
amendment is to present an obstacle to all government because the amendment
protects the natural human right to personal privacy.
James Madison and his colleagues who drafted the amendment made a value
judgment consistent with their Judeo-Christian-informed morality — namely, that
natural rights trump governmental needs.
The violation of privacy is a form of government aggression. Madison knew the
tendencies of government toward aggression. The Fourth Amendment was to be the
bulwark against it. The people could protect themselves against private
aggressors, but they'd need a clause in the supreme law of the land and
independent judges to restrain government aggressors.
After 50 years of studying, teaching, writing about, judging, interpreting
and just plain explaining the Constitution, I am convinced that those in
government don't believe its words or accept its values. They don't feel bound
by it.
They have crafted mechanisms of all sorts — like Section 702 — to evade and
avoid it. They will claim that it impairs their duties. Yes, it does —
intentionally so, and in the name of personal liberty. Today, liberty is
impaired for foreign persons, an immutable characteristic. Tomorrow it could be
impaired for any other immutable trait. Of what value is a Constitution with
congressionally crafted, politically based exceptions? None.
Channeling Justice George Sutherland, if the provisions of the Constitution
are not upheld when they pinch as well as when they comfort, they may as well be
abandoned.
Judge Andrew P. Napolitano: A graduate of Princeton University and the
University of Notre Dame Law School, he is the youngest life-tenured Superior
Court judge in the history of the State of New Jersey. The Judge is the author
of five books on the U.S. Constitution, including his most recent bestseller,
"Lies the Government Told You: Myth, Power, and Deception In American History."