Rectifying the Fourth Term

The Guardian’s disclosure of the federal government’s (until now) covert program of gathering communications data between American citizens and foreign countries has vindicated our piece on the constitutional underpinnings of Hamilton’s financial policies. The need for an evolving stance toward strict constructionism has become incumbent on civil libertarians.

Before embarking on the two-hour drive from Cromarty, Scotland to John O’Groats, I picked up a copy of today’s Guardian from a local convenience store. Therein appeared extensive coverage of official British complicity in the NSA’s zealous data mining activities, capped by an editorial in which the journalist responsible for breaking the story, Glenn Greenwald, argues that we have arrived at a constitutional crossroads reminiscent of the post-Watergate era, during which a broad realization of governmental overreach catalyzed a movement toward curtailing presidential powers.

Richard Nixon’s abuse of the national security apparatus and his persecution of those who brought such misfeasance to light led to the enactment of the Foreign Intelligence Surveillance Act. This law created a secret court to which president (theoretically) must appeal whenever intelligence collection might encompass American citizens. It was FISA that the Bush administration circumvented via the NSA’s warrantless wiretapping program.

We hope that similar safeguards are pursued in the coming months. Americans’ ignorance of their government’s behavior, juxtaposed with the American government’s knowledge of its citizens’ behavior, has persisted for far too long.

One method for achieving such change involves an unadulterated reading of the Bill of Rights, specifically the Fourth Amendment’s restrictions on unreasonable search and seizure. To use Supreme Court parlance, the federal government should be subject to “strict scrutiny” in its gathering of information. Any scenario that could conceivably threaten the Constitution’s explicit guarantees concerning the conduct of investigations or its implicit recognition of the right to privacy (what one justice referred to as the “broad penumbra” cast by the Bill of Rights) demands an unequivocal judicial veto.

Prism, the NSA’s recently disclosed program, meets these criteria. Notwithstanding President Obama’s insistence that congressional oversight should alleviate constitutional objections to the system, the collection of Americans’ call logs and the parsing of their foreign communications are patently inconsistent with the basest reading of the Constitution, particularly when such surveillance occurs without the subject’s knowledge.

Though we approach their Orwellian narratives with skepticism, Tea Party activists and their political sympathizers, much maligned on this blog, have a right to treat the Prism controversy as a partial confirmation of their raison d’être. While their most virulent protests were elicited by the President’s domestic reforms rather than his foreign policy, their insistence that an overbearing central government has overstepped its constitutional bounds has attained greater validity.

Liberal readers reluctant to tip their hats in a similar fashion must distinguish between President Bush’s pursuit of terrorism and Obama’s. Ari Fleischer, former press secretary to the younger Bush, perceives the 44th president’s adoption and subsequent expansion of his boss’s rhetoric, tactics, and rationale in the realm of foreign policy as a long-awaited vindication of Bush’s tenure in the Oval Office. We take issue with his conclusion, but concur in his suggestion that Obama has expanded rather than curbed the powers of an imperial presidency.

Followers will recall our argument for an elastic ideological treatment of the Constitution in a previous post. To illustrate our object, we foregrounded Hamilton’s reliance upon Congress’s implied powers to create a national bank under the necessary and proper clause. We argued that the feckless system of government that existed under the Articles of Confederation necessitated assertive constitutional stances stern enough to buttress a fledgling national government.

Our contemporaneous support for strict constructionism raises a critical question: if we determine whether or not to take the Constitution at its face value according to the times, what principles contained therein remain constant? To justify Hamilton’s erection of a federal government, we must prove that there is something worthy of erecting. A cyclical emphasis on implied powers and civil liberties would prove pernicious to both if no coherent defense of the methods used to protect them were offered.

To these considerations we respond that the kernel of civil liberty threatened by Britain’s imperious actions in the wake of the Seven Years’ War and codified by the first ten amendments to the Constitution represent one leg of the American social compact. Our government exists to protect rather than confer these rights, and their temporary violation calls for electoral and legislative redress.

We infinitely prefer such a moderate course of action to its alternative, not broached by Americans since 1860. In the event of a permanent violation, the prudent and considered dissolution of the existing government and the systematic formation of a new one are called for.

The other leg involves the requisite powers of government. It must possess authority sufficient to prevent citizens from infringing upon the freedom of their fellows, and not a mite more. The threat to republicanism posed by violent minorities calls for vigorous action on the part of the central government, as it did during the Civil War.

The preservation of civil liberty and good government are equally inviolable and, we believe, mutually reinforcing. No present contingency calls forth the assertion of federal prerogatives, yet civil liberty has been violated. The hour has struck again for strict constructionism. The revolving hour hand will remain fixed until reforms commensurate with infringements have been adopted.


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