The NSA Controversy, the Founding Fathers, and the Fourth Amendment

My latest post for The Federalist Papers reflects on the meaning of the Fourth Amendment, which protects citizens against “unreasonable searches and seizures,” and requires that warrants be justified by “probable cause.” What was the historical context of the Fourth Amendment, and why were the Founders so concerned about what they called “general warrants”? More urgently, what can the background to the Fourth Amendment tell us about the NSA controversy?

From the article: Fears about the pervasive reach of our intelligence services soared to unprecedented levels with the recent revelations about the National Security Agency’s massive data collection program, which gobbles up citizens’ phone and internet records in hopes of finding terrorists. In spite of earlier direct denials by officials such as the Director of National Intelligence, James Clapper, we now know that intelligence agents have warrantless access to the personal information of hundreds of millions of Americans.

How much did the Founding Fathers worry about what they called “general warrants,” or broad-based searches not prompted by reasonable evidence of criminal activity? Admittedly, the framers of the Constitution and the Bill of Rights could never have fathomed the technological advances behind cell phones and the internet that have presented the opportunity for such massive technological snooping. Nor could they have envisioned terrorists’ capabilities of wreaking massive death and destruction with weapons ranging from airplanes to nuclear bombs. Even so, the fear of the arbitrary use of searches, seizures, and arrests, was ever-present among America’s Founders.

Read the rest here, at The Federalist Papers.

See also John Fund, “Watching the NSA Watchers,” at National Review.

@ThomasSKidd on Twitter

  • Susan Gerard

    Read the entire article. I wish you had discussed your opinion of the Patriot Act, it’s 2011 Extension, and the various amendments key to this particular form of information gathering.

    My understanding is limited; I have not studied constitutional law nor a great amount of history concerning the founding fathers. I read the news daily from a variety of sources and hope to be guided by common sense and Christ, rather than fear. I also have read some about Ellsburg and the Pentagon Papers, Wikileaks/Manning and remember well the Watergate scandal.

    It is popular to be outraged at the collection of information done by the NSA. It is common to fear our government (indeed Ellsburg states unequivocally that we are lied to daily). But, what were we as a nation demanding of our government after 9/11? Was this very situation not part of what was anticipated with passage of the act/extension/amendments?

    Perhaps I am too naive. I have seen this information come to light with some sobering reflections, but I see nothing illegal in what the government (all the various entities involved including House Committee members, etc.) has done. I’m pretty sure they’re doing exactly what we’ve demanded of them: better our intelligence gathering to fight terrorism. If it has prevented acts of terror, as it has been reported, then that is a trade I am willing to make to live in a country that is trying to keep terrorism off of my doorstep.

    I am not using the nothing to hide/fear argument here. I’m asking, what is the law? Has it been broken? Was there sufficient oversight to prevent abuses? Has anyone been hurt by this (besides Snowden)? While I loved “Conspiracy Theory”, I just cannot believe in silent black helicopters kidnapping citizens off the street based on our cell phone, googling and emailing patterns.

    Please, I would love for you to expand on your concerns.

  • kierkegaard71

    I would say that this NSA controversy sheds light on two aspects: (1) I disagree with you in having confidence that the NSA is trying to stop terrorists. I don’t have much reason for this confidence, especially in view of the failure of the government to do anything to stop the elder Tsarnaev, about whom the authorities had copious amounts of information (and who can forget the 9/11 failure?). Much of the time, I believe that you will find that foiled terrorist plots have been helped along by the US government, particularly the FBI, with the help of a Muslim dupe, who, as an example, might be encouraged up to the point of attempting to detonate a phony bomb. The New York Times has helped expose this (http://www.nytimes.com/2012/04/29/opinion/sunday/terrorist-plots-helped-along-by-the-fbi.html?pagewanted=all&_r=1&). (2) The Bill of Rights is particularly useless as a protection for liberty, mainly because in our system, the government has the authority for interpreting the meaning of “reasonable” searches. I would echo those who felt that putting a Bill of Rights into the Constitution hurts us more than it helps us. It provides official cover for true violations of liberty, and it can give people a sense that our rights are limited to those that are specifically noted in the first 10 amendments.

  • Brian s

    None of us has possession of our phone calls, etc. They are the property of the phone company; hence, the fourth amendment does not really apply. We can, however, insist the government not “go too far” in this matter.

    • https://twitter.com/#!/ThomasSKidd Thomas Kidd

      If property (such as phone records) held jointly with companies is automatically not protected by the 4th amendment, then the 4th amendment offers very little protection indeed.

  • Thomas Kidd

    If property (such as phone records) held jointly with companies is automatically not protected by the 4th amendment, then the 4th amendment offers very little protection indeed.


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