Liberty in shambles
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.
Thomas Jefferson made the case for natural rights in the Declaration of Independence. The Bill of Rights was added to the Constitution to reduce to writing the guarantees of personal liberty. 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.
But 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 Foreign Intelligence Surveillance Court (FISA) and obtain a search warrant for the electronic records of any American who might communicate 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 current 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 were validly enacted but they are profoundly unconstitutional because they change the clear and direct language in the Constitution. Congress is not authorized to make those changes. 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?
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.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.