Hey, Mike Johnson: You’re trashing the Constitution

The right to privacy — to be left alone, to engage in personal behavior and communications immune from government regulation or surveillance, to be yourself — is a fundamental human right that we all exercise every day. It is also a constitutional right since it is expressly protected by the Fourth Amendment and has been expressly recognized and upheld by state and federal courts consistently for the past 60 years.

The Fourth Amendment requirement of a search warrant prior to surveillance is intended to prevent mass spying, and it is also intended to keep the government in the lane of law enforcement based on evidence, not fear of stereotypes. These two goals are accomplished by prohibiting warrantless searches and preconditioning the application for warrants upon the existence and presentation of probable cause of crime.

The probable cause of crime must be presented under oath, and it must satisfy the judge that it is more likely than not that additional evidence of crime will be found in the place to be searched or on the person or thing to be seized.

This probable cause requirement both protects the privacy of those of us as to whom there is no probable cause of crime and keeps the government in the lane of law enforcement and out of the lane of crime prediction. Yet, even this has been abused by both Congress and the executive branch.

Congress abused the Fourth Amendment when it enacted the Foreign Intelligence Surveillance Act in 1978, in response to President Richard Nixon’s use of the FBI and the CIA to spy on his domestic political opponents.

Can Congress modify a constitutional requirement? No.

The executive branch has abused the Fourth Amendment by its new confrontational style of enforcement. Prior to 1986, if the feds wanted your phone records, they obtained a grand jury subpoena or a judicial search warrant based on probable cause of crime and served it on your phone company. The phone company then informed you of the demand for your records and you had 10 days in which to challenge the demand in an appropriate court. In 1986, that procedure was changed to make the notification to you voluntary.

Then, after 9/11, the notification to you by your phone company and, by then, your internet service provider was prohibited, and if you are a foreign-born person, the warrant requirement was dropped.

The other unsavory and unconstitutional abuse by Congress has occurred when foreign persons communicate with Americans. Section 702 of FISA — which expires in a month — purports to remove all Fourth Amendment protections from foreign persons and from the Americans with whom they communicate.

Section 702 has spawned another executive branch abuse, that of purchasing private data.

Can the government do indirectly that which the Constitution prohibits it from doing directly? No.

After the uprising in the House of Representatives this past fall that removed Speaker Kevin McCarthy in favor of Speaker Mike Johnson, those of us who believe that the Constitution means what it says expected Speaker Johnson to permit an up-or-down vote on the extension of Section 702, as he urged before he became Speaker, and we expected him to oppose the extension of Section 702 as he has in the past.

But the world of power looks so differently from the inside looking out than it does from the outside looking in. He now has hinted that he’ll insert the extension of Section 702 into a bill to fund the Department of Defense — which is irrelevant to domestic spying — thus assuring its passage.

Thus, assuring more destruction of privacy and trashing of the Constitution and Big Government as usual.


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