These days the Constitution isn't worth the parchment it's written on.
The Fourth Amendment is currently under siege in New York City and in Washington, D.C. Tuesday, the Wall Street Journal ran a story which indicated that the National Security Agency's domestic surveillance operation was much more extensive than the agency has admitted. Two weeks ago, New York City Mayor Michael Bloomberg and police commissioner Ray Kelly came out swinging against a federal court ruling that New York City's stop and frisk policy was unconstitutional.
Our founding fathers wanted to make sure that the new government of the United States wouldn't become a police state. Recent government actions indicate the founders may have failed. They must be spinning around in their graves these days.
For those policymakers on the shores of the Hudson and Potomac Rivers who haven't read it recently, the first clause in the Fourth Amendment guarantees, "The right of people to secure in their persons, houses, papers and effects against unreasonable search and seizures shall not be violated."
It seems to me that stopping New York City residents and frisking them without any particular legal reason is an unreasonable search and seizure. Eighty percent of the people whom the NYPD has stopped and frisked have been members of minority groups. The New York Police Department singled out members of minority groups, so the motivation for the searches appeared to be black or brown skin.
Federal District Court Judge Shira Scheindlin ruled that stop and frisk constituted an unreasonable search in violation of the Fourth Amendment. Scheindlin also ruled that the stop and frisk policy amounted to racial profiling and was a violation of the equal protection clause in the 14th Amendment.
Commissioner Kelly is a possible replacement for outgoing Homeland Security Secretary Janet Napolitano. If President Obama does nominate Kelly for the post, the commissioner could get a real grilling on his policies during his Senate confirmation hearing.
Because of Edward Snowden, we now know that the National Security Agency is monitoring the electronic communications of millions of Americans. The searches are based on blanket search warrants approved by the federal judges on the Foreign Intelligence Security Act court. The FISA court routinely approves the surveillances and would probably allow the NSA to bug a ham sandwich if the secret agency made the request. One way to make the process more transparent would be to require Senate confirmation of any federal judge nominated to sit on the FISA court.
The officials that support domestic surveillance will have to deal with an interesting opposition coalition. The protectors of the Fourth Amendment include conservatives who worry about the encroachment of big government and liberals who fret about civil liberties. This unlikely alliance almost was able to eliminate funding for domestic surveillance in a close vote in the U.S. House of Representatives.
Both the National Security Agency and the New York City Police Department justify the searches on security grounds. Democracies like all countries need security. But the more security there is, the less democracy there will be. If the United States becomes more of a police state, America won't have much of a democracy to protect anymore.
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