So many brave Americans have fought and died for our freedom. What would they think of the country we’ve become? Would they lament what some have done with that freedom? Would they still think it was worth their last breath or drop of blood, or would they shed tears for the liberties we gave away without even a shot having to have been fired to take them? Would they weep at the sight of groups like Antifa rioting and destroying property seeking to deny people their freedom of speech? Would those who died in the American Revolution shudder at how many people would forfeit their rights to keep and bear arms, to be free from unwarranted search and seizure for the illusion of safety and security? Would all those hundreds of thousands of Union soldiers cut down in battle throw their hands up dismay at how racially divided we’ve become? What would those who died on foreign soil in WWII think of a Europe, the continent they freed of one form of malignant socialism opt for a more palatable one? How would those who died in the War of 1812 react to football players not honoring the Star Spangled Banner, a song written about the flag some of them literally died to defend? Remember this Memorial Day, those heroes died for more than a piece of land, they died for an idea, an idea that freedom is worth fighting and dying for. They died so that those they left behind could be safe from tyranny and oppression. Let’s not surrender easily what they paid the ultimate price for, that idea of that “shining city on a hill”, of American Exceptionalism.
Saturday marked the 229th anniversary of the ratification of the U.S. Constitution. It established the United States as the world’s first constitutional republic. We may be mere months from the end of America’s existence as such. 2017 could be the first year of a new, post-Constitutional era. If Hillary Clinton is elected president her choices of Supreme Court justices will tip the balance in favor of a Court that sees the Constitution as a “living document”, one that can be interpreted to mean whatever they need it to mean. On that day, the Constitution, already in exile, will cease to function as a constraint on government.
“A Bill of Rights that means what the majority wants it to mean is worthless.” -Antonin Scalia
The Bill of Rights in particular will be eroded to such an extent as to become meaningless. Rights favored by the new majority will be created out of whole cloth, while rights not favored, such as the right to bear arms, will be made virtually impossible to exercise. Consider this: The subject of marriage does not come up anywhere in the Constitution, but the tenth amendment says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” So anything not specifically mentioned in the Constitution, such as marriage, would seemingly be governed by that amendment. It establishes what is often referred to as “state’s rights”. When some states wanted to outlaw same sex marriage, and some states wanted to legalize it, the Supreme Court stepped in with the Obergefell v. Hodges and legalized ‘gay marriage’ nationally. Many social conservatives objected to the decision on moral and religious grounds, setting those objections aside the decision created a number of problematic consequences for the Constitution. Many, including Justice Roberts, believe the majority in that ruling used arguments with no constitutional basis:
“Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be”
Ruling based on what the majority thought the law should be seems to be exactly what happened. The Court invented an individual right at the expense of the rights of the states. The tenth amendment seems to exist only at the whim of the majority. Impatient with the legislative process that requires consensus building, activists used the Court to do what they could not wait for the state legislatures to do. Now they have the law but necessarily a consensus. Because the ruling was based on emotional arguments more than constitutional ones, there is now no constitutional argument to place any limits on marriage between adults, not based on the sex of the participants, not based on the number, nor kinship nor likely even age. Polygamy laws could be struck down tomorrow, were the cause popular enough. What would be the argument against?
What other amendments are as disposable as the tenth? What if the courts because of some public pressure due to security decided to give similar treatment to the fourth amendment? Our right to privacy would be gone. Proponents of so-called common sense gun control have already called for legislation (no fly no buy) that would simultaneously abridge our second, fifth, and fourteenth amendment rights. What if the Court decided to do what a powerful voting bloc such as the anti-gun lobby demanded?
“As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.” – Antonin Scalia
Another example of how SCOTUS justices chose to use extremely contorted logic to arrive at the decision they wanted was National Federation of Independent Business v. Sebelius, the ruling that effectively legalized the Affordable Care Act, A.K.A. Obamacare. This allowed the government to compel its citizens to engage in commerce, whether they chose to or not, whether they felt like they needed the product or not. If you remember your grade school history, the American revolution was fought to end this sort of thing. A government that can compel its citizens to spend money, determine how much, and on what does not serve the populace, it rules it.
The Constitution was meant to act as the guardrails of our government. It was meant to act as a constraint to the federal government while protecting the rights of the states and individuals. The idea of the Constitution as a ‘living document’ then makes about as much sense as playing football on a field with no sidelines, with no objective means of determining what is in or out of bounds. Liberal justices, believing that the Constitution must adopt to the present society have little compunction against following only those parts of it that are convenient to their objectives while ignoring others. When the Constitution gets to the point where it can mean anything the justices need it to mean, it will at once come to mean nothing. We will be living in a post-constitutional America. The three Supreme Court justices that our next president is expected to appoint, if they are liberal, activist judges, will be more than enough to effectively end the era of the United States as a constitutional republic.
The now famous dust-up between Rand Paul and Chris Christie during Thursday’s Republican debate over our fourth amendment rights versus national security was a microcosm of the one held nationally in the months leading up to the PATRIOT Act’s renewal in June. Christie maintained that its renewal, minus the controversial section 215 would be insufficient to keep our country safe. Paul argued that the mass collection of phone data by the NSA was a violation of the fourth amendment. Christie’s seemed to suggest that you needed everyone’s data to figure out who the bad guys were. He won the argument on stage by most accounts, but winning an argument is not the same as proving you are right.
Christie was suggesting that the nation needs a dragnet in which all citizens’ phone records are caught up. That is the very definition of a general warrant, the kind that the framers of the Constitution expressly sought to forbid by enacting the fourth amendment. Moreover, the trade of liberty for security he advocates is just not worth it. To put it into business terms, the return on investment, in this case, how much liberty we give up in exchange for security does not balance out. At best, mass data collection, (which still exists) so far has only proven itself as a supplement to good intelligence and police-work, not a good source intelligence on its own. First, there is just too much data. We can’t look at it all, it’s impossible. Even if we know of someone with terrorist ties, someone presumably that the NSA or FBI could easily obtain a warrant for, even that is not always enough to prevent terrorist attacks. Such was the case with the Boston bombers, an act of terror done by individuals known to have overseas terror ties. We certainly did not get our lost liberties worth of security on that day.
Some suspicion of an impending act, or someone being radicalized has to come first, then you can start searching for evidence to support your suspicions using lawful methods. The Founders were quite clear they did not want it to be the other way around. The suspicion must precede the search, period. Trolling trough the phone records of millions of innocent people in hopes of stumbling upon someone doing something wrong isn’t just bad for liberty, it’s a waste of resources. If on the other hand, law enforcement or intelligence picks up an inkling that someone is up to no good, the records are still available. Our God-given rights, including our right to privacy is one of the very things are fighting this war on terror for in the first place, let’s not forget that.
Section 215 of the PATRIOT Act was allowed to expire thanks to Rand Paul’s objection to Sunday’s proposed vote on the U.S.A. Freedom Act compromise passed by the House. Some in the Republican party have predicted doom if this happened. We’re now on day two of no Sec 215 and are still alive. To be sure, this will be a short-lived victory, the Senate will eventually have its vote. It is telling though that the Senate allowed the Act to expire at all. My guess is that a good number of Senators did not agree with Karl Rove and Chris Christie that the sky was falling. Truth is, Section 215 has had a negligible effect on our national security so far. No doubt some in the Senate will sweat out the hours before ‘U.S.A. Freedom’ is passed, bringing back mass collection of our data. It is possible that (God forbid) something bad could happen in the interim that the mass collection of data could have prevented. If the past is any indication, it won’t. What is for sure is that for now at least, our right to privacy is a little stronger. Enjoy the feeling while it lasts.
A patriot act of courage…
In a few days, we commemorate the 71st anniversary of the WWII Normandy landings known as “D-day”. On that day, thousands of Americans risked all so our rights here at home would not be lost to an evil adversary who would have done away with them. Today marks another “D-Day” of sorts, a day not nearly as dramatic or dangerous, but one that will require some of our fellow Americans to show courage and a willingness to sacrifice themselves for our rights. 100 of our fellow Americans to be exact. They will do battle today, not on some far off beach, but on the floor of the U.S. Senate.
Section 215 of the Patriot Act is due to expire on Monday, June 1st. It allows for the bulk collection of data, all without a warrant describing the specific persons, places, and things to be searched as required by the Fourth Amendment to the Constitution. It would seem a straight-forward proposition, drop or amend Section 215 and restore our constitutional right to privacy. I, Rand Paul, and many others would have it that way, but I am not naive, the senators are making a political calculation. They know that if they let the sun set on Section 215 and there is a terrorist attack, they probably will face a severe penalty at the polls. If they renew 215 and if no major attack occurs, they will risk losing the libertarian vote, something Republicans in particular can ill afford. That’s where the courage comes in.
There is a middle ground of sorts, it’s called the U.S.A. Freedom Act and has already been passed by Congress. It still allows for mass collection of data, not by the Government, but by the phone companies. It’s still an abridgment of our Fourth amendment rights, but a somewhat less egregious one. It may have one advantage in that it would not drive the mass collection of data underground, as surely would happen if 215 were to go away en toto.
Today the Senate has a choice: Keep the status quo in the name of security, or go with at least modest protections of our Constitutional rights. Risk the ire of Americans in general if they fail to act at all and we’re attacked, or risk facing the ire of Libertarians and Constitutionalist Conservatives for not looking out for our rights. Will we have a small window into the working of our intelligence agencies with regards to data collection, or none at all?
We’re not asking our Senate to show the kind of courage it took for our soldiers to take Omaha Beach nearly 71 years ago, we’re just asking them to risk their political lives, which for many politicians is almost as scary. It would be a risk they would be making for our freedom and our Constitution, a risk that all Americans will ultimately share together.
It looks like the U.S. Senate is going to kick the can down the road a little farther when it comes to the PATRIOT Act. Fans of the Constitution and the Fourth Amendment in particular are going to be disappointed. The plain text of the Fourth Amendment would suggest that Rand Paul’s argument should prevail, but as a realist, I believe it won’t. The renewed act will still allow for some form of a general warrant on our phone records. The U.S. Government will be able to gain access to our phone records, even if there is no cause for suspicion, no probable cause. Yes, proposed changes to the PATRIOT Act will make it harder for them actively violate our rights. They may have to go to the phone company first. The phone company will have to find our records first, (doesn’t that imply a search?) before the hand them over. (Seizure?) I hate to say it but realistically, we supporters of the Constitution should face the fact that the current deal as passed by the House, is the best we can hope for this time around. If it weren’t for the presence of the Tea Party caucus, the PATRIOT Act would likely be renewed as is. The U.S. Senate, despite the best efforts of Rand Paul and Ted Cruz, will only pass the amendment known as the “USA Freedom Act” kicking and screaming, if at all.
The argument has been framed by most as one of freedom vs. security. That is but one aspect of the law we must deal with. There is another we dare not speak of: Do we believe in the Constitution or not, even when doing so may incur some personal risk? That is the real question. Is it better do die at a terrorist hands with your rights in tact, or possibly live a little safer with say, some minor abridgments to our right to privacy? Will we choose to live by our own laws, even if there be a cost to doing so? The framers of the Constitution clearly thought that general warrants were a violation of our natural rights. They also likely knew first hand from their experience during the Revolution that general warrants could be used as a weapon. Today thankfully, such things have been almost irradiated, like smallpox. Like smallpox though, warrantless searches can make a comeback if we but momentarily let up our guard.
Unfortunately, we find ourselves at a place where the best defense of our personal freedom comes not from the politicians but from the staffers of the NSA and other intelligence agencies themselves. It is their own dedication to our safety and to the rule of law that ultimately protects our rights, such as they are. Their professionalism so far has been the final safeguard of our privacy as a practical matter. As of yet, there is no reason to suspect they have used their considerable power for anything other than to keep us safe. It may also be that the job of tracking legitimate bad guys leaves them with little time for mischief. We also know that not all Government agencies are as good at self policing themselves as the NSA. We know that the IRS for instance has broken the public trust, if not the law by singling out conservative organizations for extra, often invasive scrutiny. We can surmise with reasonable certainly that they were part of a culture established by the White House that allowed, even rewarded their abuses of power. The fact that no equivalent scandal concerning an abuse of power over at the NSA means not that the system has worked, only that they were able to better resist the corrupting influence coming from 1600 Pennsylvania Ave.
In the end, it may take some undeniable, indefensible invasions of privacy resulting in the lives of American citizens being unjustly ruined before we realize what the Founding Fathers already knew about the dangers of general warrants, or warrantless searches. Mind your, I’m not in the least hoping for such an occurrence– for wishing for something like that is akin to wishing that a notoriously bad driver gets into an accident so that they can learn finally what a bad driver they are. It’s self-defeating logic. The wisdom of men such as Jefferson and Franklin on the matter it would seem, has been lost but to all but a few living today. We need to speak out on the issue, those of us who believe the founders of our country had it right whenever the occasion for sensible debate arises. We may have to accept the reality of our present situation, but we don’t have to like it, and we don’t have to be quiet about it.