When British soldiers were roaming the American countryside in the 1760s with lawful search warrants with which they had authorized themselves to enter the private homes of colonists in order to search for government-issued stamps, Thomas Paine wrote, “These are the times that try men’s souls.” The soul-searching became a revolution in thinking about the relationship of government to individuals. That thinking led to casting off a king and writing a Constitution.
What offended the colonists when the soldiers came legally knocking was the violation of their natural right to privacy, their right to be left alone. We all have the need and right to be left alone. We all know that we function more fully as human beings when no authority figure monitors us or compels us to ask for a permission slip. This right comes from within us, not from the government.
Thomas Jefferson made the case for natural rights in the Declaration of Independence (“endowed by their Creator with certain inalienable rights”). The Bill of Rights was added to the Constitution to reduce to writing the guarantees of personal liberty. (“Congress shall make no law abridging the freedom of … religion … speech … press … assembly…” “No person shall … be deprived of life, liberty, or property, without due process of law…” “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”)
And, of course, to prevent the recurrence of soldier-written search warrants and the government dragnets and fishing expeditions they wrought, the Constitution mandates that only judges may issue search warrants, and they may do so only on the basis of probable cause of crime, and the warrants must “particularly describ(e) the place to be searched, and the persons or things to be seized.”
Last week, we discovered that the government has persuaded judges to issue search warrants not on the constitutionally mandated basis, but because it would be easier for the Feds to catch terrorists if they had a record of our phone calls and our emails and texts. How did that happen?
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