Prior to the Revolution, the British claimed the authority to issue Writs of Assistance allowing officials to enter private homes and businesses to search for evidence of smuggling. These general warrants never expired and were considered a valid substitute for specific search warrants.
With British tyranny fresh on their minds many states’ Ratifiers insisted on a Bill of Rights to the U.S. Constitution, and among those fundamental rights, the founders included a provision protecting the people from the arbitrary search and seizure.
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.
Note the Fourth Amendment includes NO exceptions for the kind of blanket warrantless monitoring and data collection that the NSA has engaged in for years.
Not for catching “terrorists.” Not for super secret intelligence agencies. Not to “keep us safe.”
Yet the NSA spies on Americans incessantly. It digs through emails, collects Internet data and sifts through phone records. No warrants. No specification. No restraint. British tyranny pales in comparison.
So what do we do?
We could wait on Congress, but it has had plenty of chances to shut it down. Our representatives and senators keep rubber stamping it. We could rely on the courts. But when was the last time those black-robed federal employees did anything to limit federal power? They rubber stamp it too. Maybe the president will save the day. But the commission Obama formed to review NSA surveillance was packed with government insiders. More rubber stamps.
James Madison, known as the Father of the Constitution, gave us a blueprint for stopping federal overreach.
In Federalist 46, he argued that action at the state and local level, such as “a refusal to cooperate with officers of the Union,” should be used in response to unconstitutional federal acts, or even constitutional ones that are just very unpopular.
Taking his suggestions, he wrote, would create “serious impediments” for the federal government. And when several states join together doing the same, Madison said it would “present obstructions which the federal government would hardly be willing to encounter.” (You can read more about Madison’s blueprint HERE.)
In the Virginia Resolutions of 1798, Madison wrote that “in case of a deliberate, palpable, and dangerous exercise” of power by the federal government, states “have the right, and are in duty bound, to interpose for arresting the progress of the evil.”
NSA spying represents just the kind of dangerous, palpable evil Madison was talking about.
It’s time for states to act.
Northern states successfully followed this blueprint to resist federal fugitive slave acts. Between 1820 and 1860, most northern states passed personal liberty laws to resist these acts that denied due process to any black person accused of escaping slavery. Personal liberty laws included provisions prohibiting state or local officials from cooperating with fugitive slave rendition and denying use of state or local facilities, such as jails. They were so successful, several southern states cited northern noncooperation with the fugitive slave acts in their declaration of causes for secession. (learn more about that here)
FIRST STEP: NOW
We can follow in the courageous footsteps of northern abolitionists who fought federally
sanctioned kidnapping at the state and local level, and rein in the U.S. surveillance state.
The first step? A state-level response, the 4th Amendment Protection Act, the first step in the process that James Madison advised.
The strategy? Hinder the NSA’s ability to gather information unconstitutionally in the United States by denying them any cooperation from state and local governments, and incentivize others to refuse cooperation as well.
First off, it prohibits any political subdivision in the state from providing material support to any agency collecting information without a warrant describing the person(s), place(s) and thing(s) to be searched or seized. It denies the use of state resources or state funds for these organizations. And, it bans state and local law enforcement from utilizing such information obtained by the NSA because they’re violating the 4th Amendment.
In other words, a “refusal to cooperate with officers of the Union.”
Second, it prohibits any political subdivision in the state from providing services to organizations like the NSA engaging in warrantless spying. This becomes particularly significant when considering a political subdivision of Utah supplies 1.7 million gallons of water to keep the NSA spy grid cool. That would shut off.
Third, it makes any person or business cooperating with unconstitutional spying ineligible to do business with state or local governments. This would give Internet providers and other tech companies economic factors to consider before signing on to turn information over to the NSA.
It also provides some pretty severe penalties for anyone violating the act and lending the feds a hand.
Passage of such legislation in your area (state OR local) will begin a process which will lead to “obstructions which the federal government would hardly be willing to encounter.” And once step one is moving forward, Step 2 will up the ante considerably.
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