Dear conservatives, why do you not defend the Fourth Amendment?

On June 1 at 12:00 am , three sections of the Patriot Act expired. Those sections, including the infamous Section 215, are used as a legal justification for mass data collection of American citizens’ phone records. It remained up to the Senate to pass the “USA Freedom Act” which will allegedly end the bulk data collection as it stands, and will set up a different system for national security surveillance. However, certain lawmakers such as Senator Rand Paul and Congressmen Justin Amash and Thomas Massie are determined to see the data collection ended in its totality, and stop authorization of the “Freedom Act.”

The “USA Freedom Act” has been heavily criticized by the aforementioned three lawmakers as being misleading about the surveillance measures of the federal government. Yes, the data collection as we know it currently know it will end, but there may actually be something more sinister in H.R. 2048 than its proponents are willing to admit. A former senior intelligence official spoke with the Daily Beast after the Act passed the House, and called it a “ big win for the NSA, and a huge nothing burger for the privacy community.”

The USA Freedom Act does not stop the NSA from spying on American citizens as its proponents claim. Justin Amash further explains why:

The bill’s sponsors, and unfortunately some outside advocacy groups, wrongly claim that H.R. 2048 ends “bulk” collection. It’s true that the bill ends the phone dragnet as we currently know it—by having the phone companies themselves hold, search, and analyze certain data at the request of the government, which is worse in many ways given the broader set of data the companies hold—but H.R. 2048 actually expands the statutory basis for the large-scale collection of most data.

H.R. 2048 does this by authorizing the government to order the production of records based upon a “specific selection term” (i.e., like a search term used in a search engine). The records sought still must be relevant to an investigation, so it’s possible the court’s ruling will continue to restrain the government in some fashion. But it’s more likely a court looking at H.R. 2048’s language will see the “specific selection term” as defining the outer limits of what Congress considers acceptably “relevant” under Section 215.

Amash, Massie, and Paul have received heavy criticism from both the left and the right over their stances. Criticisms from the left are understandable, as partisan politics reign supreme in Washington. However, opposition from the right is a rather puzzling demonstration of inconsistency in constitutional interpretation among many conservatives.

For conservatives, certain aspects of the Constitution are highly cherished. The Second Amendment guarantees our right to bear arms, and conservatives are highly vigilant of any trace of infringement of this right. Especially in the past few years, the Second Amendment has become a dangerous topic to touch for the gun grabber crowd, as conservatives rally to defend their right to bear arms any time it is threatened. And they do so with an unparalleled vigor and passion.

However, when it comes to the Fourth Amendment, that same energy and passion is often nonexistent. What reigns rather than protections of the right against unwarranted government surveillance? The War on Terror! The War on Drugs! The War on Crime!

Procedural protections are not avidly defended by a large percentage of conservatives because they would rather see a perceived threat eliminated than to take the time and consider the long term cost of ignoring Constitutional criminal procedure. Do they not recognize the need for protections of the accused? There’s a reason why the Fourth Amendment was ratified: customs officials constantly used general warrants and writs of assistance to arbitrarily search anything they so desired on the suspicion of smuggling.

Do these conservatives who so proudly flaunt their support for the American Revolution not remember the long train of abuses by those customs officials? Do they not remember James Otis’ eloquent monologue against writs of assistance in 1761? Do they not remember that the purpose of the Fourth Amendment’s procedures is meant to protect the innocent more than the guilty? Apparently so.

It’s rather appalling that the same conservatives who claim to love the Constitution so much, and claim to have an unending respect for our fundamental law, do not emphasize the need for protections against government surveillance in their rhetoric. What good will it do any of us if we have the right to bear arms, but the government can enter our house and search into our records without any sort of due process? The right to bear arms is important, but the right against unwarranted government intrusion is just as important.

What the opponents of the spying program are asking for is really not a lot. We simply are asking that if the government believes that a person is a threat to public safety, they go to a judge, who signs off on a warrant for that person ONLY, particularly describing the person and places to be searched. Is that so much? If so, then maybe we should just repeal the Fourth Amendment in the name of national security. After all, isn’t safety and security the most important thing to Americans? I beg to differ!

Safety and national security are some of the most important things that the government must work to ensure, yes. However, there are procedures to protect the citizens from overzealous national security schemes that incriminate the wrong people. Yes, it is possible for government to make mistakes, and conservatives are usually one of the first groups to recognize this. But when it comes to national security issues, all of a sudden the beliefs in the incompetence and corruption are gone, and essential Constitutional protections along with it.

What if I told you that we can have both liberty and security? What if I told you that it were as simple as “get a warrant?” Yes, even in the days of global terrorism we can still be a safe country by following the Constitution. And yes, even when it comes to phone records the Fourth Amendment matter. This idea seems incomprehensible to many conservatives these days, and it’s a shame to see.

All of the vigor that conservatives have for the Second Amendment should be equally as powerful as the vigor for the Fourth Amendment. Why should the two be any different? Either the entire Bill of Rights matters or none of it matters. When it comes to the fundamental law of the law, either all of it applies, or none of it does.  Simply because there are terror threats from abroad does not mean that we can discard protections afforded to the people of this country. Whether it is physical property, or digital information, the people of the United States are not to be spied upon by the government without due process. More conservatives need to understand this in a time where the Bill of Rights has never been under more vicious attack in the name of “national security.”

This article has been updated.

Follow Seth on Twitter: @sconnell1776



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