Judge Andrew Napolitano

Liberty in Shambles

By Judge Andrew Napolitano - Thursday, June 13, 2013

When British soldiers were roaming the American countryside in the 1760s with lawful search warrants with which they had authorized themselves to enter the private homes of colonists in order to search for government-issued stamps, Thomas Paine wrote, “These are the times that try men’s souls.” The soul-searching became a revolution in thinking about the relationship of government to individuals. That thinking led to casting off a king and writing a Constitution.

What offended the colonists when the soldiers came legally knocking was the violation of their natural right to privacy, their right to be left alone. We all have the need and right to be left alone. We all know that we function more fully as human beings when no authority figure monitors us or compels us to ask for a permission slip. This right comes from within us, not from the government.

Thomas Jefferson made the case for natural rights in the Declaration of Independence (“endowed by their Creator with certain inalienable rights”). The Bill of Rights was added to the Constitution to reduce to writing the guarantees of personal liberty. (“Congress shall make no law abridging the freedom of … religion … speech … press … assembly…” “No person shall … be deprived of life, liberty, or property, without due process of law…” “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”)

And, of course, to prevent the recurrence of soldier-written search warrants and the government dragnets and fishing expeditions they wrought, the Constitution mandates that only judges may issue search warrants, and they may do so only on the basis of probable cause of crime, and the warrants must “particularly describ(e) the place to be searched, and the persons or things to be seized.”

Last week, we discovered that the government has persuaded judges to issue search warrants not on the constitutionally mandated basis, but because it would be easier for the feds to catch terrorists if they had a record of our phone calls and our emails and texts. How did that happen?

In response to the practice of President Richard Nixon of dispatching FBI and CIA agents to wiretap his adversaries under the guise of looking for foreign subversives, Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978. It prohibited all domestic surveillance in the U.S., except if authorized by a judge based on probable cause of crime, or if authorized by a judge of the newly created and super-secret FISA court. That court was empowered to issue warrants based not on probable cause of crime, but on probable cause of the target being an agent of a foreign power.

The slippery slope began.

Soon the feds made thousands of applications for search warrants to this secret court every year; and 99 percent of them were granted. The court is so secret that the judges who sit on it are not permitted to keep records of their decisions. Notwithstanding the ease with which the feds got what they wanted from the FISA court, Congress lowered the standard again from probable cause of being an agent of a foreign power to probable cause of being a foreign person.

After 9/11, Congress enacted the Patriot Act. This permitted federal agents to write their own search warrants, as if to mimic the British soldiers in the 1760s. It was amended to permit the feds to go to the FISA court and get a search warrant for the electronic records of any American who might communicate with a foreign person.

In 30 years, from 1979 to 2009, the legal standard for searching and seizing private communications — the bar that the Constitution requires the government to meet — was lowered by Congress from probable cause of crime to probable cause of being an agent of a foreign power to probable cause of being a foreign person to probable cause of communicating with a foreign person. Congress made all these changes, notwithstanding the oath that each member of Congress took to uphold the Constitution. It is obvious that the present standard, probable cause of communicating with a foreign person, bears no rational or lawful resemblance to the constitutionally mandated standard: probable cause of crime.

Now we know that the feds have seized the telephone records of more than 100 million Americans and the email and texting records of nearly everyone in the U.S. for a few years. They have obtained this under the laws that permit them to do so. These laws — just like the ones that let British soldiers write their own search warrants — were validly enacted, but they are profoundly unconstitutional. They are unconstitutional because they purport to change the clear and direct language in the Constitution, and Congress is not authorized to make those changes.

These laws undermine the reasons the Constitution was written, one of which was to guarantee the freedom to exercise one’s natural rights. These laws directly contradict the core American value that our rights come from our humanity and may not be legislated away — not by a vote of Congress, not by the consensus of our neighbors, not even by agreement of all Americans but one.

The government says we should trust it. Who in his right mind would do so after this? President Obama says the feds have your phone records but are not listening to your calls and will not read your emails. Who would believe him? James Clapper, the director of national intelligence, testified that the feds were not gathering vast data on Americans. Who would trust him? The NSA says that Congress knew about all this, but its members were prohibited from telling the American people. What kind of a democracy is that?

The modern-day British soldiers — our federal agents — are not going from house to house; they are going from phone to phone and from computer to computer, enabling them to penetrate every aspect of our lives. If anything violates the lessons of our history, the essence of our values and the letter of the Constitution, it is this.


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14 Responses to “Liberty in Shambles”

  1. Kate says:

    Is our world just going to fall apart – how do we stop people from going against our constitution that people fought so hard for us to have? There are those of us who care but do not know how to change this. I am sick and tired of my own President going against the Constitution he is supposed to uphold for us and congress also.

    • FunkyChick says:

      I JUST learned about this, today! I'm feeling really STUPID right now. Relevant and important info. on "how [we can] stop people from going against our constitution that people fought so hard [and died] for us to have." http://theprecinctproject.wordpress.com/

      Please, pass it on, too! [I'm just not sure that I "responded" in the correct manner, so that you personally got this when I first sent it. See? NOW, I'm feeling even-more "really STUPID." Regardless, maybe there's still some hope for this country! It would be nice if we could keep in touch, somehow, and yet I'm afraid of submitting my e-mail address to you on such as "site" as this, because I don't want my "personal info." to get "out there." Yet, the "gubmint" has that capability, and we don't. Interesting.] Suggestions?

      Good luck! Maybe we'll both be "Precinct Committee'men'" soon, and can stay connected, anyway. :o )

      • theprecinctproject says:

        Thank you for promoting The Neighborhood Precinct Committeeman Strategy. It is the answer.
        Thank you,
        Cold Warrior

        • FunkyChick says:

          You bet! Was very happy to see/learn the info.! Thank you for the enlightenment. I've e-mailed several people about it and have posted various sites in other article "comments," as well.

    • John Q. Publican says:

      It is not the President and the Congress that uphold the Constitution for us but rather we the people who must demand our constitution be upheld by those upon whom we confer temporary power. The people are the fourth branch of government, the ultimate arbiter of the balance of power. That is why there is such a desperate push to undermine and eradicate the second amendment. That is the peoples line in the sand. The people must wake up and demand a return of the Republic and a Constitutional government. Stand up say something, do something. Resist the tides of tyranny.

      • Nigtrider says:

        How do you propose we the people 'wake up, stand up say something, do something, demand, resist" against a president (voted in twice mind you) who ignores the Constitution and a Congress whose members on the whole don't even know what the Constitution stands for?

        • John Q. Publican says:

          Organize boycotts of companies and industries that participate and/or promote these crimes against the people. An example would be if everyone or even a large majority of people refused to fly commercial airlines it would only take a few days for the airline industry to demand the removal of the TSA groin grabbers. Use your brain. Follow the money and choke it off.

  2. FunkyChick says:

    I JUST learned about this, today! I'm feeling really STUPID right now. Relevant and important info. on "how we [can] stop people from going against our constitution that people fought so hard [and died] for us to have."

    Please, pass it on, too!

  3. Tersia Cook says:

    Oh my word – as an outsider (from South Africa) looking in, am frightened with what is going on especially in America. Has America really been dumbed-down to such an extent that they would vote the current President into power? And by that I mean power to take the liberties he is with the American Constitution… Where will it end unless concerned people refuse the rot! Have no room to talk considering what is happening in South Africa, I know. Just wanted to voice my concern.

  4. Paul Anthony says:

    A recent poll indicates the majority of Americans are not concerned with this invasion of privacy. That's not surprising, considering the vast number of people who conduct "private" conversations on their smart phones – in public. And why should they be concerned? After all, they're not saying anything they haven't already posted on Facebook or Twitter!
    And yet, if you've ever watched a police drama on TV you are familiar with this common phrase: "You have the right to remain silent. Anything you say can and will be used against you in a court of law".
    The same government that wrote that catchy phrase is recording everything you say.
    You've been warned.

  5. Nigtrider says:

    …… to communicate with a foreign person? No more international pen pal and romances, no more international trade (import or export), no more contacting or receiving such from heretofore international friends, acquaintances and even relatives. What has this country come to?

  6. Lawrence Ekdahl, says:

    There once was a government in the United States which had three branches which monitored each other and took action against those who violated our constitution. That body no longer exists. The three branches have merged into one gigantic monster out of control.

  7. P.J. says:

    Our government and legisltive processes are broken beyond repair. Our elected officials no longer have your's or mine interest a heart. The legislatures are raping our retirement savings, social security, medicare, home values, income and well paying jobs have all but disappeared. How long are you going to take it? All of our Senators and Representatives are millionaires happily sucking on the Federal teet while you and I pay for their excesses. The United States 26 th. in the world in providing a quality education for our children….How long are you going to take it?

  8. Wayne says:

    Thomas Jefferson made the case for natural rights in the Declaration of Independence (“endowed by their Creator with certain inalienable rights”).
    Judge, you of all writers!
    Why do you continue to write inalienable in the place of unalienable?
    These rights can not be traded but only taken away by the giver. Who is it that gives, our Government or our Creator.
    Readers do not be mislead.

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