Time For Amendment XXVIII--The Right to Privacy

Time For Amendment XXVIII

    Edward Snowdon may be a traitor or a hero, but whatever your take on that, he has laid bare the stunning disregard for the Fourth Amendment now practiced by the American government. How the Professor of Constitutional Law who currently occupies the White House could allow such blatant disrespect for the Fourth Amendment become the norm is beyond understanding.  Unless we realize how we got here.  We panicked after 9/11.  We cried out that nothing like that should ever have occurred, and unleashed the watchdogs to try to ward off future attacks.  We gave Bush and Cheney and crew full license to restrict and invade our privacy, in a wishful exchange for security.  Now, alas, we have neither privacy nor security, but also no transparency, no accountability, and no representation.  Even our elected representatives have sold us out, sitting blandly through oversight hearings, and raising no objection, until Congress's own computers were hacked by the NSA.  Then they got up on their hind legs and bleated forlornly, but to no avail.  The spooks continue on unchecked. And the current lame duck finds he must be even more macho than the lame ducks he replaced.
    You may say, "I have nothing to hide, so why should I care if they collect my data?" The answer may come to you when your political opinions become politically incorrect, or perhaps when that snide and slightly racist joke you forwarded to friends becomes public knowledge.  Or, when you get referred to the IRS for your beliefs, and your taxes get a twice over. That Demand Letter from the tax examiner may help to sharpen your understanding.  The trouble is, this stuff is being stored forever, and can be brought out in unimaginable and illegal ways.  It is illegal and unimaginable that it is even being collected, so don't count on legality to protect you later.  The Fourth Amendment is clear.  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  None of that command is currently being honored.  The secret court which grants warrants does not require probable cause, nor oaths or affirmations, only a request from the NSA.  There is no description of the place to be searched and the persons or things to be seized, only a broad brush statement of possible relation to national security. No other Court has ever been secret, with the names of the judges unknown, and the cases unstated. This court does not even use an adversarial process.  A prosecutor presents lists, and a judge, in secret, decides, with no one representing the targets, even generically. A true Court, worthy of the name, cannot function that way. We have deviated so far from the protections afforded by our Constitution, that we are in danger of losing our democratic form of government, our republic.
    This debacle has yet to be decided by the Supreme Court, but given the current makeup, it is unlikely that the so-called textual conservatives will find their fidelity to the text any barrier to supporting the government's overreach. That is a shame.  I had hoped that our professed love for the Constitution as written might exert some pull on our government's actions, but alas, I am deluded.  This is not the first time in our history that our government has gone off the rails and violated the Constitution and our rights to representation.  There is a long history, from the Alien and Sedition Act of 1798, to the Dred Scott decision, to "Separate but Equal" doctrine of Plessy v. Furguson, to the internment of the Americans of Japanese descent in WWII validated in the shameful Korematsu v. US decision. In such instances, the People have always had the right to react to bad government by using the amendment process, and in some of these egregious instances, we have done just that. So it may be time again for us, the People of the United States, in whom all political legitimacy and power ultimately resides, to underscore our disagreement with the direction of our government, and amend our Constitution.  The Right of Privacy has been taken for granted, assumed to be covered indirectly by the First, Fourth, Fifth and Ninth Amendments, but is nowhere stated explicitly.  I believe it is time to push that forward.  The founders felt that these propositions were so self-evident, that stating them explicitly was unnecessary and redundant.  But their sensibilities would surely be violated by our blind eye to the obvious today. I suggest, fellow Citizens, that we use the process prescribed in our Constitution, to express the will of the People, and lay down in foundational law, the Right to Privacy in one's body, dwelling, relationships, writings and communications, and require that the Fourth Amendment return to its original and proper function.  I suggest that Congress is incapable of any principled act, and that only the will of "We the People" can draw us back from the quagmire we find ourselves in today. We the People must act, and We the People must prevail.