As Georgia10's
excellent post points out, the Bush Administration is relying heavily on a "state and military secrets" strategy to prevent any challenge to its wiretapping and datamining scheme.
Now, since this is the Internets, I am required to say: IANAL. But, I do have a pretty good education for an ol' public-schooled Buckeye, and I seem to recall that there was some document somewhere that said something about the ability to petition the Government for the redress of grievances. Oh wait - here it is - right on the government's own website:
Amendment I
(More on the flip.)
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
So, if Congress were to create an obstacle to "petition the Government for redress," which is a high-falootin' way to say "Sue," it would be Unconstitutional. But BushCo is arguing that it's hunky dory peachy keen for the Executive - the very object of the grievance - to do it. All I can say is: "huh?"
Well, I guess one can see how the President would get all confused by that. All those semicolons and everything.
Oh, but this part seems pretty clearly aimed at the Executive:
Amendment IV
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.
What is part of "got a warrant?" don't they understand? If it would help, I could break out some training films - reruns of "TJ Hooker," or perhaps "Walker, Texas Ranger" if that's more to Mr. Bush's taste. (I myself prefer "Adam-12" and "Dragnet," but I digress.)
Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
What a radical concept! Got an issue? let a judge sort it out according to the law of the land. You know, that pesky "rule of law" thing.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Ooooh that bears repeating.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Wow! look at this! the Founders decided to repeat it, too!
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Hey, this business about reserving to the people the "rights not specifically enumerated" must be some important stuff... Unless you're George W. Bush. In which case you make up a bunch of government superpowers that trump the Constitution - you know, the supreme law of the land...
Or is the "state secrets" authority in some double-super-secret Amendment that I don't know about?
The most frustrating part of the national conversation about the NSA warrantless wiretap scheme is the oft-repeated, "If you have nothing to hide, what are you afraid of?" Short answer: It's unconstitutional, undemocratic, and un-American. If the President can decide at any time to enact programs of this nature, without oversight by the Congress or review by an independent judiciary, what's to stop this country from becoming a police state? If the government can inspect any part of your life at any time for any reason (or none at all), and be accountable to none but itself, that's exactly where we're headed.
Longer answer: The Constitution - the structural framework on which our Democracy is built - is NOT about granting rights to ordinary citizens. The exact opposite is true: the Constitution states which specific powers the PEOPLE allow their GOVERNMENT to have. Everything else is Hands Off, Uncle Sam! In The Federalist No. 84, Alexander Hamilton argued (much more eloquently than I) against including the Bill of Rights in the Constitution. His reasoning was that some people would construe the enumerated Rights to be the only Rights retained by the citizenry:
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.
However, this question was not going to be settled by some mere hand-waving, especially by someone as polarizing as Hamilton. Some of the Revolutionary heavyweights (including a couple of guys named Thomas Jefferson, John Adams, and John Hancock) were very concerned about the absence of an explicit declaration as a check to the concentration of government power in the hands of the Executive. Patrick Henry urged that Virginia's ratification convention vote AGAINST the Constitution: "Is it necessary for your liberty that you should abandon those great rights by the adoption of this system? Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings--give us that precious jewel, and you may take every thing else!"
These giants in the early years of our country persistently and eloquently voiced their objection to a strong national government and came to be known as the "anti-Federalists." In a collection of essays containing the best of their arguments, the so-called "anti-Federalist Papers," is an essay (anti-Federalist No. 84) attributed to Robert Yates writing under the pen name Brutus:
We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion,-that no bill of attainder, or ex post facto law, shall be passed,-that no title of nobility shall be granted by the United States, etc. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms.
Ratification runs into a buzzsaw
By January 1788, the Constitution had been ratified in five states - Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut - with the Federalist/anti-Federalist debate still going strong but the Federalists prevailing. The ratification debate in Massachussetts however, was a turning point. Although Massachussetts ratified the Constitution after a prolonged and contentious debate, anti-Federalist John Adams succeeded in making the ratification contingent on making the adoption of a Bill of Rights the first order of business for the new Congress (Ever wonder why it's called the "Bill" of Rights? Think "I'm just a Bill, yes I'm only a Bill...") Six other states, including Virginia (which had its own State Bill of Rights), New Hampshire, and New York, soon followed suit.
Hamilton himself later admitted that the majority of people in his home state of New York probably opposed the Constitution, and only the promise of amendments made ratification possible.