The Fourth Of July And The Fourth Amendment
Contemporary Americans accept actions by the state that were once the cause for revolt.
Jazz Shaw reminds us today that John Adams had a pretty good idea of what the Fourth Of July ought to be like:
The records show that Congress actually voted for the resolution of independence on July 2nd, but it took a couple of days to get the announcement in order and signed. Actually, even that has been the subject of some debate, with various historians claiming that the declaration wasn’t actually signed until August. But in any event, this is the day we settled on eventually. As to its meaning, I think John Adams summed it up nicely in this letter to his wife.
The second day of July, 1776, will be the most memorable epoch in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward forever more.
Old John had a way with words. This was not intended to be just a solemn day, but a day of bold, brash strutting and an affirmation of the rejection of tyranny and dedication to God, nation and freedom.
As noted, Adams was incorrect in predicting that July 2nd, the day that the Second Continental Congress actually voted in favor of declaring independence from King George III, would be the day that Americans would celebrate. As it turned out, through one of those vicissitudes of custom and history, that the celebrations came to be marked on the day two days later when the text of the Declaration Of Independence was formally approved. (It was actually several weeks later, on August 2nd, that the document was signed, although it had been read aloud in public for the first time on July 8th) Whatever the day, though, the day set aside to mark the birth of the new nation did indeed become the vision of “bells, bonfires, and illuminations” that Adams predicted, and rightfully so. Imperfections aside, after all, the Declaration of Independence marked the first time in history that a nation was founded on an idea rather than based on conquest or the whims of Royal Decrees. Moreover, even though that idea was far from fully realized in 1776, the history of the nation has been a constant struggle toward implementing the idea that “all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty and the pursuit of Happiness.” It’s a never-ending struggle, but one that we can proudly say that, for the most part, we have always moved toward. So yes, let’s celebrate.
At the same time, it’s worth remembering some of the reasons that those early Americans decided to stand up to the most powerful nation on Earth at the time, which they conveniently listed for his in their Declaration of Independence. As Juan Cole reminds us, one of those reasons remains highly relevant today:
On the Fourth of July, Americans should be celebrating the freedoms enshrined in the US constitution, especially the Bill of Rights. At one time, Americans minded when the government usurped their rights and made over-reaching claims to be able to invade their privacy. No more. Most Americans have become little more than bleating sheep, perfectly happy to be sheared by faceless bureaucrats. They are willing to surrender to the state their most private information, the contemporary electronic records of everywhere they go, who they talk to and for how long, who they email, and even the contents of their communications. With the rise of datamining software, this information can be extremely revealing, and government and contractors with access to it can engage in all sorts of blackmail, insider trading, and corruption. Since the surveillance apparatus is “classified” and top secret, there is no effective oversight to ensure against public harm.
Though not listed directly in the Declaration of Independence, the rights set forth in the Fourth Amendment were put there precisely because, prior to the Revolution, British authorities routinely invaded the homes of American colonists and conducted searches without warrants. Colonial legislatures routinely attempted to pass laws to restrict the ability of British authorities to do these things, but the King would just as routinely issue writs that would override those legislative actions, and Colonial citizens continued to be subjected to warrantless searches and other indignities for the purpose of, among other things, ensuring that the taxes and customs duties being imposed by London were being paid as due. So, when the time came for those colonists, now citizens of an independent United States, to enact a Bill of Rights, the protection of the people to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” seemed to naturally belong in any such list. Indeed, similar protections had already been written into the various declarations of rights adopted by many of the several states over the years.
As Cole points out, though, things have changed significantly over the years:
America’s current national security state, which is a profound betrayal of the Constitution, holds that our email and our documents in the cloud are like postcards and thus can be examined at will by intelligence analysts and law enforcement. I doubt any ordinary Americans thinks that their email correspondence and digital documents are anything at all like a postcard.
Another exception, instituted as recently as 1979, is the stupid “third-party doctrine,” which comes out of a fascist court ruling that since you share your phone records with your telephone company, you can’t expect them to be private from the government. What? What brain-dead jurist thought that up. When I contract as a private citizen with a business for a set of legal transactions, that is none of the government’s business. A law is needed to overturn this ridiculous doctrine.
The argument that we have to give away the 4th amendment because of “terrorism” is equally stupid. (King George III set aside the need for warrants and specific searches on the grounds of fighting “smuggling,” the precedent for our current use of “terrorism” for this purpose). Charles Kurzman points out thatthere have only been 100 terrorist plots on US soil since 2008 and that the NSA only claims to have disrupted 10 of them through electronic surveillance. There have in those 5 years been 25,000 terrorist attacks worldwide, of which the NSA claims to have foiled 50 through electronic surveillance. So they are not actually so effective that we should be eager just to abrogate a whole amendment to the Constitution over it. And, moreover, there were 70,000 violent fatalities in the United States during this period since 2008, and 20 of those were owing to terrorism.
This is why I say those willing to kick the constitution to the curb over fear of “terrorism” are sheep, not bravehearts. And the government officials who issue thousands of ‘national security letters’ for warrantless searches every year and requisition Verizon business records on millions of customers, are frankly betraying the Constitution.
Many, perhaps, will be turned off by some of Cole’s strong language here, but he makes an important point. For decades now, Courts have been interpreting it the Fourth Amendment in a manner that expands the powers of law enforcement while restricting the zone of privacy that citizens are entitled to. At the same time, governments at the State and Federal level have been expanding those powers on their own in the name of fighting the “War On Drugs” and the “War On Terror” while citizens have stood rather meekly by and allowed it to happen. Even today, with the revelations that have come out regarding the extent to which the National Security Agency and law enforcement are engaging the collection of massive amounts of data regarding everything from phone records, to Internet activity, to credit cards, and even our snail mail, polls seem to indicate that the American public is largely accepting of what the government is doing, a sharp turn of events from 237 years ago when the idea of agents of the King snooping into the lives and affairs of private citizens was one of the motivations for an act of revolution.
There can be honest disagreements about where the boundaries of the Fourth Amendment begin and end, but one would think that we can all agree that there are boundaries that the government should not cross, at least not without a warrant issued by a judge based on probable cause (and preferable not a judge from a secret court unless absolutely necessary.) More importantly, it seems axiomatic that the American people should know when these things are happening to them without having to depend on someone who, depending on your perspective is either a whisteblower pointing out wrongdoing or a leaker with questionable motives. We owe at least that much to those who worked so hard 237 years ago to take the risks necessary to create the nation we now enjoy living in. So, as we celebrate today, and indeed for many of us for the rest of what will be a long, hopefully relaxing, weekend, let’s keep in mind those British agents that used to break into the homes of colonial citizens at will and ask ourselves how those colonists would feel about what we’re letting our government do to us today. Something tells me they wouldn’t approve.
Great piece Doug.
It seems that, now that we’re free, we accept the demands of the national security state. One thing is certain, we’re going to have to come to grips with modern electronic media and the fact that we’ve willingly and actively ceded our privacy. It isn’t only the government that is a party to this, it is ourselves and our businesses.
Support the Electronic Frontier Foundation. We need to have a national discussion on this – and I do not see it as a partisan concern, EVERYONE should be concerned.
“Bleating sheep?” Good lord, what contemptuous, self-important bullsh!t. The NSA knows if I make a phone call to London. God, I can practically feel the shears. Tyranny, I say! Here come the black helicopters!
On another thread Spartacus is doing a very good job of trying to make the case that we have in some sense been actually damaged. He started by eschewing slippery slope arguments, but has now (by his own admission) fallen back on them.
So, let me give you some real world slipperiness. Over the next six weeks, six Hezbollah sleepers who don’t like our stance on Syria, set off bombs in busy shopping malls, killing, say, 200 Americans. The news is nothing but video of the explosions and the carnage. No one knows how much longer it will continue.
Just how much freedom do you think we will willingly surrender in the weeks that follow? Do you think we’ll object to armed guards at every mall entrance? No, we’ll welcome them, we’ll demand them. How much do you think we’ll object to “suspicious” ie: Middle-Eastern appearing shoppers being pulled aside and searched on their way in and out of Macy’s? Mosques will be begging for protection. Airlines will be pressured into canceling flights in and out of the ME. Immigration from the ME will shut down.
You think after a week of bombing there’ll be a lot of votes in Congress to curtail the NSA? Or do you think there will be a public outcry to not just look at metadata but any other damn thing the government wants to look at? Have you seen what goes on in Israel? That’s the America we get if we are hit hard enough. That’s the America we get if naive fools puffed up with their own sanctimony have their way.
Civil liberties have ALWAYS been a balancing act. They have NEVER been absolute. The world cannot be reduced to absolutes, and only children fail to get this. Our job as citizens is not to treat the Constitution as inviolable Holy Writ but to understand that we will at times have to balance what we would like in a perfect world against what we have in the real world.
So far as anyone has been able to report, not a single US citizen has been materially damaged by PRISM. You are victims of paranoia, Orwellian imagery and immaturity.
I don’t know, I think nuclear weapons would scare them more.
Also, unless a bureaucratic error occurs somewhere, I’m still not going to have uniformed officers bust in my front door looking for contraband. After however many hours it’d take to explain to an 18th-century British colonist that I have a small rectangular gadget that can send messages anywhere on the planet, I doubt they’d be all that alarmed that someone can track it.
Let me try a less intemperate way of explaining this: the Constitution is not the end goal. The end goal is liberty. Right? That’s what we are after, that’s what we want. Liberty, justice, all that good stuff. The Constitution is a tool we use to get there.
So, if the Constitution is actually endangering liberty we need to focus on the goal, not the tool. Thus far in our history we have sensibly interpreted the Constitution to allow us to get ever closer to our goal. But if people insist on treating the Constitution as the inerrant word of God, as a Holy Koran, then we make ourselves inflexible and thus vulnerable.
There will be no points awarded if we end up, say, dead, but can with our dying breaths say, “Well, we stuck rigorously to the most narrow interpretation of a document written by 18th century slave-owners.” This is not a religion. There is no heaven. Our goals are real-world: liberty and justice.
People of limited imagination, people who are easily frightened by change, believe there is safety in dogma. There is no safety in dogma. We are creatures of evolution, we are meant to adapt and survive, not go down with the ship because we were too stupid to launch the lifeboats.
@michael reynolds: Do you not remember COINTELPRO? We only learned about what was happening because activists burglarized an FBI office. It’s odd to use the argument that no one can prove “harm”, because the government keeps its activities secret. You’re saying we are immature because we haven’t yet succeeding in breaking into NSA offices to find evidence we’ve been wronged.
You don’t recall the NSA, CIA and Homeland Security were cooperating with big finance to monitor and control Occupy activists? Did you not read weeks ago the NSA shares classified information with favored corporate cronies to give them an advantage against competitors? It’s a matter of public record the Patriot Act has been used vastly more in prosecution of criminal cases than in matters of national security, which it was never intended for. So abuse under that law and in every previous domestic surveillance program was and is rampant, but this new program is totally different and no abuses at all will occur? Why would you think that?
You say liberties are a balancing act: where then is the line, in your opinion? How much surveillance is too much? How much secrecy is anti-democratic? How much intertwining of government and corporation (which was Mussolini’s definition of fascism) is acceptable? You aren’t going to persuade anyone with your line of argumentation because you place no limits on the reach of these powerful institutions into our lives. Whether you realize it or not it is your position that is extreme, your demand that those uncomfortable with this be silent and submit, that we can without reservation trust every action an unaccountable intelligence apparatus chooses to take.
How is the Constitution endangering America?
Don’t confuse freedom with liberty.
So, Justice Harry Blackmun is a fascist now?
W. T. F.
Ben, when the hell have I ever demanded anyone be silent? And when have I said there could be no limits?
What I’ve said was that it is a balancing act. That does not imply no limits. It implies that we are grown-ups who can make adjustments as new circumstances and new technologies arise.
When the Constitution was written it enshrined slavery. But the goal was liberty. So the Constitution was wrong. It was changed to reflect a grievous error.
I want strong congressional oversight. I want FISA courts. I want legislation that confines PRISM et al to only intelligence uses and excludes all of that data from application to criminal or civil matters. I want the 4th Amendment to continue to stand against the improper use of data.
When there abuses — and yes, there will be — I want the abusers punished.
Is that rather complicated, given that we don’t know exactly how the data is being used? Yeah, very complicated. It is, again, a balancing act. It is imperfect. But the way to handle abuses and imperfections is to continue working rationally to protect necessary rights, not to endanger civil liberties by dismantling programs that may be extremely helpful in stopping terrorist attacks. Because we are only free when we have a reasonable sense of security. Scared people give up liberty, and you are proposing measures that are very likely to result in more people being a whole lot more scared.
9-11 brought us two wars and the TSA and PRISM. So you want, what? Less vigilance against the exact cause of those programs? We did a damned good job as a society in limiting the domestic damage done by that single really bad day. We didn’t round up Muslims and throw them in concentration camps. But if you cast your eyes back to 1942 you’ll see that we are perfectly capable of some serious overreaction. And if the American people get scared enough about their security there won’t be two dozen people listening to you tell them they don’t need an NSA. What do you think your liberties are worth if some pissed off Saudi with a biology degree starts spreading smallpox around? Your liberty wouldn’t last ten seconds.
PRISM is a reasonable compromise. It does not obliterate the 4th Amendment or the Constitution. Is it dangerous? Yes. Life is dangerous. Both government and the individual are dangerous. Mr. Orwell had not envisioned a world where people would strap bombs to themselves and blow up children. And yet, that’s what we have, so we need to adapt.
This seems a little strange. We don’t and can’t know how the founding fathers would have thought of these things. Let’s remember that these guys were eighteenth century propertied white men. They apparently didn’t think women were equal, found slavery acceptable, and had no problem expropriating the lands of native Americans. They might have been totally OK with this so called constitutional violation.
I am bemused that Doug thinks this NSA stuff is important than the real rights violations happening now. He posted once about the battle for abortion rights in Texas and didn’t even mention the other attempts to snuff out reproductive rights in Ohio and North Carolina. As for voter suppression , he pretty much ignores it. But he posts repeatedly on NSA “violations”, although no one can really even identify what harm people have suffered. Oh well, someone has to be concerned about First World Problems.
That’s a strange standard by which to judge whether PRISM goes too far. Literally, no one outside of a narrow group within the Executive branch of the government has any clue how data from the program is being used. We do, however, know that a minimum of 500 Americans are being denied their 1st Amendment rights of freedom of travel without any due process at all. We also know people are being aggressively prosecuted for crimes entirely unrelated to national security merely because the govt, for reasons that are entirely unknown to anyone, thinks these people are dangerous. Those are meaningful harms not Orwellian paranoia.
If I understand all of your arguments correctly, you seem to be saying (1) the kinds of PRISM abuses that would cause “real” harm (I still don’t know your definition of that) are so unlikely that it’s paranoid to be concerned about them, (2) PRISM et al are likely increasing our security so whatever “real” harms they do cause are worth it so it’s a reasonable compromise, and (3) even if PRISM isn’t increasing our security we should still accept it because we’ll get something a lot worse than PRISM if we have another major attack.
As pointed out previously, the Church reports unequivocally demonstrate that #1 is wrong. Moreover, the legal protections that were put in place after the Church reports to prevent the harms that were disclosed have been greatly weakened through the Patriot Act and amendments to FISA.
With respect to #2, although it is intuitive to think that all of this surveillance does in fact increase security, there’s simply no evidence of this because none of us (including Congressional overseers) knows how PRISM data is being used. The govt itself hasn’t even claimed that the unfettered collection of all metadata and all phone conversations, emails and texts of every single American has prevented a single attack. We do, however, know that the vast quantities of data possessed by the govt prevented it from stopping the underwear and Times Square bombers. So, from the evidence we do actually have, the only conclusion we can make is that these efforts are decreasing security. See the below link.
With respect to #3, it’s implausible to think that after the next big attack the govt is going to say to the public, “Don’t worry, there’s no need to give up more civil liberties at this time since you gave up some the last time. Thanks, but we’re good for now.” We’re going to have to give them up no matter what.
Those ” British agents that used to break into the homes of colonial citizens at will”? Bad.
Someone collecting metadata about phone calls? Meh.
It is simply foolish to try to equate the two.
What is your source for this? Is that a reference to the no-fly list? That would actually be an argument for better data collection and analysis, not for less. A better database and search tools would allow us to avoid putting Joe Jones from California on the list when what we mean is Joe Jones from Colorado.
Or are you arguing that we cannot keep people off airplanes?
As for appealing the no-fly, I absolutely agree there needs to be a mechanism in place to do that.
As I said, there will be abuses. There are always abuses. Of everything, ever. The potential for abuse is not in itself a convincing argument. The criminal justice system is abused, we still need it. Abuse should be dealt with as specific crimes.
The argument that we don’t know what harm is being done falls of its own weight, since harm is obvious to those harmed. This is also a safeguard. Were Americans being arrested, for example, they would know they were being arrested, so would their relatives, friends, etc… And their lawyers. And the judges who would rule on the admissibility of any evidence.
Actually, the NSA briefed the full Senate on specific instances where the data was useful in preventing attacks. Fewer than half the Senate bothered to show up. As for effectiveness, I’ll link to a critical source, Reason Magazine:
Now, as Reason points out, were all these attributable to PRISM? Maybe not. But that’s a long way from your assertion that the government doesn’t even claim particular successes.
They’ve also briefed the intelligence committees which – if they were convinced of either the abusiveness or uselessness of PRISM have the means to defund it.
The fact that PRISM doesn’t catch every single potential enemy is not compelling. Our armies also don’t always stop every single enemy soldier. Our police don’t catch every bad guy. No one expects any program to be 100% effective, and I can guarantee you no one at NSA is under any illusions as to that. And the fact that collection has outstripped analysis does two things. First, it points to a need to develop better methods of analysis, and second it makes the case pretty convincingly that PRISM does not mean that all our conversations are being listened to. Obviously the staggering quantity of data makes it highly unlikely bordering on impossible that any of us will ever have any of our calls listened to or our emails read.
As for the excerpt, Clarke was referring to efforts to enlist local police in various money-wasting, using optical scanners of license plates, for example. He was not referencing PRISM. Let’s slice that quote a different way:
So, let’s pretend the NSA is at least partly right that they have stopped at least some terrorist attacks. Fair? Now let’s ask whether our civil liberties today would be stronger or weaker had those attacks succeeded.
You take the position that PRISM is an intrusion on our liberty. Why do we have PRISM? Because of terrorist attacks. One led to the other. Right? So, what we have by your own reasoning is: Terror harms civil liberties. And your suggestion is to eliminate the countermeasures we put in place after the last terrorist attack and arguably increase the chance of terror attacks which will do what? Terror harms civil liberties.
Which brings us back to my point, that civil liberties will be harmed far more if we are hit repeatedly than they have been thus far.
If you wish to argue that government surveillance leads to tyranny, can you supply an example? Tyrants certainly love them some surveillance, but the cause and effect goes the other way. The insecure dictator needs surveillance. But of course the surveillance he needs is of his own people, of political parties, unions, etc… Is there any reason to think that’s the NSA’s objective? Is there something in this transparent and open society the NSA can’t find out about political parties or unions simply by reading a newspaper?
This is Orwell paranoia. Orwell was wrong. There never was an Oceania. There never was a Ministry of Truth. There was a Soviet Union in 1948 and it fell over dead of its own weight 40 years after Orwell wrote his book. So did East Germany. And China threw in the towel and decided to get rich. Orwell was wrong. He was not a prophet.
Since then the actual, real threats have come not from vast governments but from stateless individuals, lone nuts and fanatical groups. Orwell got it wrong. And all of you are getting it wrong. You are hunkered down waiting for something that is farther than ever from happening. And because you’re fighting the last (fictional) war, you’re missing the real war, the one that is actually happening.
I think there is a larger issue here that we are missing. What is happening is the growth and increasing power of agencies and bureaus, some of which Congress is not even aware of. There
is no oversight, control, or monitoring. This has come to be a government in itself and will have the power, through its connections with the military, to be a threat and control the elected government.
It will be an entity that will call the shots and control this country more and more: transportation, communication, utilities, commerce, banking, business, education, health. As it grows, the government “of, by, for” the people shrinks. The president and Congress will become less of an influence. Think about the military – industrial complex of Eisenhower, only several times more powerful, secretive, intrusive, and controlling, with a lot of control in the hands of unknown people calling the shots, even computers controlling actions, such as drones.
@michael reynolds: ” And all of you are getting it wrong.”
Only because you say so, and even this is weak tea.
What you offer is not freedom, Michael. It’s a pat on the head for the government to continue what it does without oversight. Without YOUR oversight.
Secret program, secret courts, all of it without any warrants or suspicion.
There is no reason privacy must completely vanish to deal with your delicate sensitives over “them terrorists” and their mall bombings,yet another scenario you made up to scare people. You have a greater chance of being struck by lightning. By far.
Thanks for your post. I am traveling and haven’t been able to think through, or respond to, it. I will do so as soon as I get the chance.
Well, then, he must have been struck with aphasia when he signed the Alien and Sedition Acts.
Can you please sign and share!