Georgetown University Law Center professor Randy Barnett nailed it in a short post on the Volokh Conspiracy Blog this week.
Much as I believe that the NSA bulk data seizure program is unconstitutional because it is an “unreasonable” general warrant, the preferable remedy would be a congressional fix. Moreover, I agree that we should never count on the courts to save us.
Barnett crams a lot of truth into a single sentence.
The NSA bulk seizure program certainly violates the simple, specific terms of the Fourth Amendment and looks a whole lot like the general warrants issued by the British that prompted the founding generation to demand explicit restrictions on searches and seizures in the Bill of Rights. The king issued “writs of assistance” – open ended search warrants that allowed British officials to search anytime anywhere. They were primarily used by customs officials fighting smuggling. Writs of Assistance allowed officials to “enter and go into any House, Warehouse, Shop, Cellar or other Place” to seize contraband goods. (1) These writs did not require any probable cause or judicial oversight. They essentially authorized legal fishing expeditions at the expense of basic privacy. Once issued, a writ of assistance remained valid for the life of the king. The specific requirements of the Fourth Amendment were designed to prevent the federal government from exercising such sweeping, privacy violating powers.
Barnett also echos a frequent Tenth Amendment Center assertion: we should never count on the courts to save us. Over and over again, the federal employees sitting on the federal bench render opinions supporting the expansion of federal power.
Thomas Jefferson and James Madison also believed that we could not count on the courts to protect us from federal overreach. In the Kentucky Resolutions of 1798, Jefferson insisted “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits.”
James Madison expressed a similar idea in the Virginia Resolutions of 1798.
The powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.
So, while a congressional fix might be preferable – might we want to consider another remedy should they fail as well?
1.M.H. Smith, The Writs of Assistance Case 1 (quoting a 1767 measure by Parliament establishing a new writ of assistance “in the British Colonies or Plantations in America.”)