Daily Archives: October 13, 2023

Academicians, lawyers, elections officials, pundits and politicians are presently ensconced in the problem of Donald Trumps continuing constitutional qualification for presidential office. Although he plainly meets Article II of the United States Constitutions three qualifications at least 35 years old, natural born citizen, sufficient residence in the United States Trump arguably runs afoul of a more recent disqualification added in 1868 by way of Section 3 of the Fourteenth Amendment.

That provision was added following the Civil War to keep former state and federal officeholders who had joined the Confederacy from once again rising to state and federal office. Its terms are broad and all-encompassing, with no apparent temporal limit, such that even today [n]o person shall hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath as an officer of the United States to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. Its being cast in general terms arguably makes it applicable to the events of January 6, 2021, as at least one court has already concluded. If the assault on the Capitol was an insurrection or rebellion against the Constitution, then any of its participants who had previously taken an oath to uphold the Constitution could be thereafter disqualified from holding state or federal office.

There is little precedent on how Section 3s disqualifying provision works and to whom it applies. Confederates were plainly subject to its terms, though Congress for the most part granted them amnesty in the years following the Civil War. Whether Section 3 was applied by elections officials to disqualify non-Confederate candidates in later elections is not clear. I have yet to find any examples that pre-date the events of January 6, 2021. But then again there has been nothing like the events of January 6, 2021 since the end of the Civil War.

As one might suspect, legal questions have emerged over the precise meaning of Section 3s terms. Even assuming that then-President Trump was culpably involved in the January 6 assault on the Capitol, for example, would his actions fall within the reach of Section 3s terms? More precisely, does Section 3s disqualification from holding any office cover the Presidency? Does its inclusion of officer[s] of the United States on the list of those who are disqualified because of having previously sworn to uphold the Constitution include those who took Article IIs presidential oath as opposed to that required of everyone else in Article VI? And what exactly is an insurrection. Meaty questions like these have no definitive answers (yet).

Seizing on definitional questions like these, some, like Professor Lawrence Lessig, have argued that section 3 should not be applicable to President Trumps involvement in the events that transpired on January 6. Worrying about the proverbial slippery-slope, Professor Lessig asks, What is the line that would divide insurrectionists from protesters?

Professor Steven Calebrisi now insists (after a change of heart) that Section 3 simply does not apply to the office of the President. Professors Josh Blackman and Seth Barrett Tillman add that not only does Section 3 not apply to the Presidency, it is not enforceable at all without congressional action.

Rejecting all of Lessigs, Calebrisis and Blackman/Barretts positions, Professors William Baude and Michael Stokes Paulsen argue in their upcoming Pennsylvania Law Review article that Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as aid or comfort. And in particular, it disqualifies former President Donald Trump because of his] participation in the attempted overthrow of the 2020 presidential election. President Trump is covered because he swore, as President, to uphold the Constitution. Section 3 applies to the Presidency as an office of the United States. Further, Section 3 is fully enforceable with or without congressional action.

Because I am not an expert on Section 3s application to insurrections and rebellions (is anyone?) and I profess no special knowledge about whether the office of the President qualifies as an office of the United States under Section 3 (though I think it does), I address my focus here on something that is within my wheelhouse: the enforceability of constitutional norms, particularly those found in Section 1 of the Fourteenth Amendment. Specifically, I explore whether congressional legislation was considered necessary in 1868 (when Section 3 was ratified) to enforce the Fourteenth Amendments restrictions. If true of Section 1, then a much stronger argument can be made that the disqualification provision in Section 3 was also meant to require enabling legislation. If not, then the argument that Section 3 was not considered directly enforceable (as Justice Salmon Chase argued in In re Griffin) loses some weight.

In sum, I am confident that Section 1 of the Fourteenth Amendment was understood by the framers of the Fourteenth Amendment and the legal community to be fully enforceable without congressional enabling legislation. As I explain below, direct, positive enforcement of constitutional provisions was the norm.

Toward this end, I would first like to add a word about legalese. Unlike discussions about state constitutional laws, which frequently include digressions into whether provisions are self-executing, federal constitutional discussions rarely (if ever) use that term. Instead, federal constitutional analyses inquire whether powers have been exercised, whether limitations apply, and generally whether the Constitution is enforceable. Addressing the Fourteenth Amendment as self-executing is therefore a non-starter, whether in todays terms or across history. It may be unenforceable without a statutory vehicle, or it could present a non-justiciable political question, but neither of these equates with its being non-self-executing. The question is whether it is enforceable without congressional support. And to that problem I now turn.

In support of their claim that Section 3 requires congressional support, Professors Josh Blackman and Seth Barrett Tillman argue for a distinction between defensive and offensive enforcement. Although a defensive use of the constitutional constraints found in the Fourteenth Amendment is always permissible, they claim, the offensive use of the Fourteenth Amendments limitation (including those in Section 3) is not. As a general matter, to sue the federal government or its officers, a private individual litigant must invoke a federal statutory cause of action. It is not enough to merely allege some unconstitutional state action in the abstract. The same is true for suits against states and their officers, they claim. Section 1983, including its statutory antecedents, i.e., Second Enforcement Act a/k/a Ku Klux Klan Act of 1871, is the primary modern statute that private individuals use to vindicate constitutional rights when suing state government officers. Tying this into a historical thread, they then assert that [c]onstitutional provisions [including Section 3] are not automatically self-executing when used offensively by an applicant seeking affirmative relief, with the implication being that it has always been that way. It is in this latter regard that they are mistaken.

Section 1983 was passed in 1871 to correct state and local abuses of freed slaves throughout the Reconstructed South. It awarded, and still awards, the victims of unconstitutional conduct a private action against the offending government official. It has in modern times (defined as since 1961) become the premier mechanism for vindicating federal wrongs perpetrated by state and local officials.

But before modern developments beginning in 1961, constitutional provisions (including those in the Fourteenth Amendment) were always understood to be enforceable without federal enforcement statutes like section 1983. As explained by Professor Anne Woolhandler, positive, direct, offensive constitutional litigation in state and federal courts long preceded the adoption of the Fourteenth Amendment in 1868, section 1983 in 1871, and general federal question jurisdiction in 1875. Throughout the nineteenth century, both before and after Reconstruction, she explains, the Court saw diversity jurisdiction as an appropriate vehicle to raise federal questions, sometimes providing an expansive scope to diversity explicitly to accommodate this use of it. Consequently, much of the Supreme Courts development of individual rights and remedies took place without reliance on either federal question jurisdiction or statutes such as 1983, but rather under the rubric of diversity jurisdiction. Congressional enforcement mechanisms and federal question jurisdiction did not exist, were not used and were unnecessary. Constitutional provisions were fully enforceable without congressional assistance.

This remained true in 1868 when the Fourteenth Amendment was ratified. The Supreme Court in 1978 explained in Monell v. New York Department of Social Services that at the time the Fourteenth Amendment and section 1983 were put in place it had already granted unquestionably positive relief in Contract Clause cases, the question being simply whether there had been a violation of the Constitution. It added that federal courts found no obstacle to awards of damages against municipalities for common-law takings at this time, either, citing an 1873 case as an example.

So-called confiscatory challenges under the Fourteenth Amendments due process clause were heard in federal court in the late nineteenth century through the early twentieth century, too, with one of the better-known examples being the 1908 case of Ex parte Young, which remains a cornerstone of modern constitutional litigation. There the Supreme Court concluded that the presence of constitutional claims under section 1 of the Fourteenth Amendment, when coupled with federal question jurisdiction, was enough all by itself to support a federal courts entertaining a positive constitutional challenge to Minnesotas confiscatory rates. No statutory vehicle, like section 1983, was discussed. None was needed.

In 1946 the Supreme Court in Bell v. Hood, without mention of any statutory enforcement mechanism, observed that it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the state to do. In support of this established practice the Bell Court cited to late nineteenth century and early twentieth century precedents under constitutional provisions including the Fourteenth Amendment.

None of this was changed by the additions of section 1983 in 1871 and the advent of federal question jurisdiction in 1875.Although having maintained a constant presence in the United States Code, albeit in various different subsections (such as 8 U.S.C. 43 when Bell v. Hood and Brown v. Board of Education (1954) were decided), section 1983 remained little-used until the 1960s. Justice Scalia observed in his dissent in Crawford-El v. Britton that section 1983 produced only 21 cases in the first 50 years of its existence. In the collection of the cases that make up Brown v. Board of Education, for example, most of the plaintiffs did not mention section 1983s ancestor, 8 U.S.C. 43, at all in their pleadings, and not one mentioned it before the Supreme Court as a basis for the suit. Judge Marsha Berzon was thus certainly correct to state in her 2008 Madison Lecture at NYU Law School that in Brown the plaintiffs grounded their claim for relief directly in the Fourteenth Amendment. Constitutional scholars, I think, tend to agree.

Professors Blackman and Tillman are thus wrong to suggest that the Fourteenth Amendment somehow distinguished or was meant to distinguish between positive (using the Amendment as a sword) and negative (using it as a shield) uses. Calling this an American constitutional tradition and claiming that the Fourteenth Amendment was meant to be wielded as a shield without legislation but not self-executing in court [for] affirmative relief unless Congress provides for its enforcement is far-fetched to say the least. It is not a tradition and has no basis in the many cases that were directly raised under the Fourteenth Amendment throughout the late nineteenth and early twentieth centuries. The Fourteenth Amendment was directly used as a sword and a shield for more than eighty years without need of a congressional enforcement mechanism. The generation that framed the Fourteenth Amendment must have known all this. It would not have expected the Fourteenth Amendments terms to lie moribund until Congress took action.

So what happened to change all this? Why are Professors Blackman and Tillman correct about the lay of the constitutional land today? Why are statutory remedial vehicles like section 1983 now needed? The question is a difficult one with no ready answer. The short (and admittedly incomplete) answer is that in 1961 the Supreme Court in Monroe v. Pape breathed new life into section 1983 by allowing it to be used against unauthorized governmental actions. Before that happened section 1983s under color of law requirement had been interpreted to required authorized governmental wrongs. When attorneys fees were added to section 1983 in 1976 that pretty much sealed the switch from direct constitutional litigation to section 1983, with the latter now being both available and preferred by the plaintiffs bar.

Not that this killed off all direct constitutional litigation. Far from it. The Supreme Court in 1971 in Bivens v. Six Unknown Named Agents of Bureau of Narcotic recognized a direct constitutional cause of action for damages under the Fourth Amendment against federal agents, and extended this rationale in 1979 and 1980 to cover violations of the Fifth and Eighth Amendments. While it seems plain that no more direct constitutional actions will be recognized today, and in 2010 the Supreme Court put the final kibosh on attempts to circumvent section 1983 with direct constitutional logic, this most recent history demonstrates how powerful and lasting was the traditional use of direct constitutional causes of action.

In the end, how direct, positive, offensive constitutional actions came to be replaced by actions based on congressional legislation should prove unimportant to the debate over Section 3s enforceability. The point is that Section 3 could not have been considered offensively unenforceable as part of some traditional view. No such tradition had ever existed. Section 1 of the Fourteenth Amendment, like just about every other constitutional provision (such as the Contracts Clause in Article I, 10) was expected to be enforced directly in state and federal court. Further, to the extent congressional support for Section 3 is needed it is today readily found in section 1983, which has been extended to cover just about every constitutional provision worth litigating. Whether the dormant Commerce Clause, the First Amendment, the Fourth Amendment, or the Fourteenth Amendments limits in Section1, section 1983 has been recognized as an available vehicle. There is no apparent reason that it could not be used with Section 3 of the Fourteenth Amendment if that became necessary (though I think it should not).

None of this is meant to suggest that anybody and everybody is free to sue in state or federal court to force Trumps name from ballots. In federal court Article III standing presents a huge obstacle, as does the political question doctrine (though I think the latter is overstated). State courts have their own restrictions on who may sue for what violation. Section 3 of the Fourteenth Amendment does not override any of this. Suffice it to say that enough water has flowed under a sufficient number of bridges to prove that state elections officials and state courts generally have the authority to entertain challenges to and remove potential federal candidates from ballots for a number of reasons, such as not having paid the required fees, not properly collecting signatures and not being qualified under Article I of the federal Constitution. States, moreover, have disagreed to the point that some presidential candidates, like Ralph Nader, have been disqualified in some states but not others. I dont see that Section 3s disqualification provision being applied to Trump should be any different.

Mark Brownis alawprofessor and the Newton D. Baker/Baker & Hostetler Chair atCapitalUniversityLawSchool.

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Trump and Section 3 of the Fourteenth Amendment: An Exploration ... - JURIST

Editors Note: This is part of a multi-part series on theFISA Section 702reauthorization and reform debate.

Q. There are loud voices on either end of the spectrum with regard to Section 702 of the Foreign Intelligence Surveillance Act (FISA), the intelligence authority set to expire at the end of the year unless reauthorized by Congress. The Biden administration and other supporters of the Section 702 program argue that it should be reauthorized as is; others believe that it should be overhauled (if not allowed to sunset). Where do you fall on this debate? From your experience investigating and litigating prominent national security cases and as an intelligence operations attorney, do you think Section 702 is as imperative as the Executive branch has stated? And likewise, do you think any reforms to the program are necessary or appropriate?

Yes I think it is imperative to reauthorize Section 702. It is a fast and efficient way to obtain important national security information in a manner that complies with the Constitution. But I do want to distinguish Section 702, which is a foreign intelligence tool, from a classic criminal investigative tool. I worked in the Department of Justices National Security Division in three capacities: as a FISA operations and oversight attorney, as a national security policy counsel, and as a cyber and counterespionage prosecutor. My views on Section 702 which are my own and not those of any employer, past or present come more from my experience as an operations and oversight attorney and policy counsel than my time as a national security prosecutor.

And I also think it should be updated, consistent with the history of updates to FISA as the technology, scale, use, and public perception of foreign intelligence surveillance have evolved. In particular, because of the global nature of communications and travel, the built-in safeguards to prevent targeting of U.S. persons and people within the United States have to be periodically updated. And because law enforcement officers and intelligence officers are always thinking of new ways to use the information and systems available to them for good-faith reasons related to keeping the nation safe it is important to keep tabs on, and think critically about, those new uses.

Queries of previously collected information are a great example. At first, for many it was hard to see how searching information that had already been collected pursuant to court-approved procedures would cause a problem. As the practice became more widespread, however, public concerns grew about reverse targeting or routine checks for U.S. person information. This all happened as storage capacity and search capability continued their exponential expansion. New technology and new practices led to new concerns, which led to new rules. That is entirely appropriate.

To me, the important lesson here is that the system worked. The oversight mechanisms built into Section 702, which involve all three branches of government, provided the insight and transparency necessary to surface the issue and address it. That oversight distinguishes Section 702 from many historical and non-U.S. intelligence collection programs.

Q. Thats an important insight on intelligence programs and their oversight structures changing over time as communications and technology evolve. Can you provide some further context on changes to FISA over time and how Section 702 fits into this picture?

I started working on FISA operations in 2005, before Section 702 existed. People may not remember how intense the pace of global counterterrorism efforts was at that time. If you look at publicly available statistics, you can see the drop in full-blown individually targeted FISA orders that occurred after Section 702 became law. If we can infer that this drop is at least partly due to the governments new authority to target, without a particularized warrant or order, the communications of people who are neither U.S. persons nor present within the United States, this makes a lot of sense. There is no Constitutionally based reason to apply Fourth Amendment protections such as particularized findings of probable cause to that group (that is, non-U.S. persons located abroad), and there is a limit to how many individual FISA applications DOJ, the FBI, and the FISA court can process and oversee. So, it is reasonable to come up with a new system that applies Constitutional protections to those who are entitled to them, imposes court supervision over Executive branch activities, and allows for policy-based limitations such as those contained in Executive Order 14086.

Much of the opportunity and need for Section 702 is based on technological change. When FISA was enacted in the 1970s, most international communications were transmitted by radio transmissions. Those communications were exempt from FISA as long as they did not target a U.S. person in the United States and included a party outside the United States. The U.S. government could therefore use technical means to collect those communications with no court oversight at all. Signals intelligence collection can sometimes be unreliable and risky, and if you go visit the NSA museum you will see a memorial wall that shows just how dangerous it could be. But as technology developed, the same foreign communications that the government used to try to pull from the air are increasingly transmitted over the wire and through the United States, where the U.S. government can often acquire them more reliably and safely.

That change in some ways enhances intelligence agencies technical ability to safely acquire those foreign communications. Because people around the world, including in the United States, often use the same infrastructure and services to communicate, it also increases the risk of acquiring communications of U.S. persons or people within the United States. Thats one big reason that close court supervision is required but that oversight can be accomplished without requiring lengthy factual declarations and individualized findings of probable cause.

Q. On that note, lets discuss in more detail one of the proposed reforms: a warrant requirement to query the database of information already collected under Section 702 for U.S. person information. Is there precedent for imposing such a requirement? Do you think it would be a valuable modification to the program?

Requiring a warrant to search previously collected data for U.S. person information is a good idea. I dont think its clear that the Constitution requires it. But thats not the end of the inquiry.

For example, when the Electronic Communications Privacy Act was enacted, there was not general agreement that the Constitution required a warrant to search the contents of email messages a user stores with their service provider, but Congress nonetheless imposed a statutory requirement to provide the same level of protection based on a policy goal of extending a Fourth Amendment level of protection to electronic communications.

Its also helpful to remember that the U.S. government was conducting national security surveillance before FISA without orders, warrants, or any other involvement of judges. When Congress first enacted FISA, there was no consensus that the Executive branch required a warrant to conduct foreign intelligence surveillance. People dont appreciate this now, but FISA brought national security surveillance under judicial supervision. So while the Constitution sets a minimum standard when it comes to civil rights and limits on the government, Congress can go further, and has done so for policy reasons in the past.

There is a case for Congress to do that now. It is essential for Americans to have confidence in their government and particularly in their law enforcement and intelligence agencies commitment to protecting Americans rights. Particularly given the skepticism that currently pervades American society, requiring the government to establish probable cause and obtain judicial approval before searching for a U.S. persons communications within previously collected material would bolster that confidence and is a relatively light burden on the government.

Yes, search warrants take time, and FISA search warrants can be onerous to draft (which is in part the responsibility of DOJ to fix). But when you think about how much 702-acquired data the government may be sitting on and how long it may keep it, you can see how practitioners and the public alike would be concerned that collecting all of that information without probable cause or a warrant based on targeting of non-U.S. persons, and then searching that information for U.S. person information with no further approvals, could be seen as an end-around the warrant requirement. I dont personally see it that way, but a warrant requirement (with an emergency exception) is a small price to pay to earn and maintain the confidence of the American people in their national security institutions.

Q. Some have argued that imposing a warrant requirement for U.S. person queries of the Section 702 database is too onerous. Given your extensive experience in obtaining both FISA and non-FISA warrants, can you walk us through what this would really mean in practice?

Obtaining a criminal search warrant is usually a fairly straightforward process. When I was a local and federal prosecutor, my detective or agent and I would draft an affidavit that was accurate and established probable cause. For physical search warrants, such as a search of a residence, there might be discussions with supervisors about officer safety, means of entry, strategic considerations about alerting the target, the permissible scope of the search, or the potential for media attention. Other than my first several warrants as a junior Assistant District Attorney, I dont remember having a supervisor flyspeck an affidavit or ask for more factual detail. For search warrants targeting electronic communications accounts like email and social media, the process and timeframe for obtaining a warrant were quick and smooth.

In contrast, it is well-known that writing a FISA application and getting it approved for submission is hard and takes a long time. Part of this is by design, and is a purposeful safeguard given the classified nature of the proceedings. Every FISA application has to be approved by the Attorney General (AG), Deputy Attorney General (DAG), or Assistant Attorney General (AAG) for National Security, and has to be certified by the FBI Director or a similar official at an intelligence agency. The legislative history from the 1970s indicates that part of the reason for the high-level approvals is to ensure quality control as well as individual accountability; no one wants to bring a substandard or under-investigated application to a high-level official.

Another reason for this difference is that criminal search warrants are much more likely than FISA orders to be unsealed and revealed to the target at some point. If the execution of a criminal warrant reveals evidence that is later used to charge and prosecute a defendant, the affidavit and warrant are disclosed to the defendant, who can challenge their sufficiency in a motion to suppress evidence. Criminal warrants to search premises or physical property are often provided to the target at or near the time of a search. Criminal warrants to search electronic communications accounts may be subject to non-disclosure orders, but those orders are usually not indefinite and most providers will notify targets when a non-disclosure order elapses and is not renewed. FISA orders, in contrast, usually do not produce evidence that is used in criminal cases and by default remain classified. In fact, even when evidence acquired through a FISA order is used in a criminal case, the order and supporting materials are neither provided to the defendant nor made available to the public. Rather, if a defendant moves to suppress FISA-acquired evidence, the judge who hears the motion reviews the FISA materials without the involvement of the defense.

As a result of these considerations, lessons learned from negative experiences, and, to an extent, bureaucratic inertia, the amount of detail that FISA applications contain has grown to far exceed what would be included in an ordinary criminal search warrant application. This comes at a cost. DOJ attorneys and FBI agents spend substantial time taking questions from supervisors, finding answers, and incorporating new facts into lengthy declarations. And every new detail is an opportunity for an inaccurate or unsupported statement, whether or not the statement is material. Successive rounds of editorial and supervisory reviews add additional time to the process. Each extra requirement, whether official or unofficial, comes from a good place a desire to avoid mistakes, an appropriate response to prior errors, anticipating supervisors questions ,, but they add up can result in extremely lengthy applications that take weeks to prepare. In short, there are some good reasons to have more controls and more review for FISA applications than criminal ones, but it would be worth stepping back and revisiting whether the current system is optimal.

In any event, if Congress does add a warrant requirement, it is likely to contain an emergency exception. In fact, the PCLOB recently recommended individualized judicial review and authorization by the FISC for all U.S. person queries with exceptions limited to consenting U.S. persons or exigent circumstances. Moreover, FISA itself allows the AG, DAG, or AAG to authorize emergency authorities under specific conditions and seek retroactive approval from the court. Fourth Amendment jurisprudence provides an additional exception to the warrant requirement under circumstances such as imminent threats to life and safety. It would therefore be important and reasonable for a new warrant requirement to allow law enforcement to move quickly in the event of an imminent threat.

In that regard, it is important to bear in mind that Section 702 targets overseas threats to U.S. security such as international terrorism. If investigators urgently need to access a U.S. persons communications that were collected under Section 702, that could mean that a potential terrorism threat is crossing the border into the United States (physically, electronically, or otherwise). That is the exact situation in which we need an efficient process in place to allow law enforcement to get the information they need consistent with Constitutional considerations.

A warrant requirement that contained an emergency provision with retroactive approval would provide the accountability needed to maintain public confidence. If configured and implemented properly, it would allow officers to obtain the information they need and move as quickly as necessary, just as they have historically done in the criminal law enforcement sphere.

4th Amendment, Biden administration, communications, Congress, Department of Justice (DOJ), Federal Bureau of Investigation (FBI), FISA Section 702, Foreign Intelligence Surveillance Act (FISA), intelligence community, national security, Right to Privacy, Surveillance, United States

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Expert Q&A with David Aaron on FISA Section 702 Reauthorization ... - Just Security

Six months ago, 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 protect the Constitution are in fact doing so. In reality, the feds continue to assault and violate a core freedom protected by the Constitution the right to be left alone.

The reason for the FBI revelation 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. 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.

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 receive.

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 British agents used their general warrants to search colonial homes ostensibly looking for tax stamps in compliance with the Stamp Act, they were really attempting to find 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 of British agents roughing up colonists in their homes. 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 kings authority. Yet, within a year, farmers and artisans 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. The colonies-become-states presumed a right to secede. They believed that what they had joined voluntarily, they could voluntarily leave. 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 the government because the amendment protects the natural human right to personal privacy and autonomy from the government.

James Madison who drafted the Bill of Rights and his colleagues 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 theyd 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 dont believe its words or accept its values. They dont 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.

Section 702 expires on Dec. 31, 2023. Last week, President Joe Biden asked Congress to renew it. It should die a natural death. Paraphrasing 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.

Tags: FBI, Section 702, Surveillance

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A Constitution the Government Evades - Tenth Amendment Center