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Is Government Faithful to the Constitution?
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When the government is waving at us with its right hand, so to speak, it is the government’s left hand that we should be watching. Just as a magician draws your attention to what he wants you to see so you will not observe how his trick is performed, last week presented a textbook example of public disputes masking hidden deceptions. Here is what happened.

Last week was dominated by two huge news stories. One was the revelation by the Senate Intelligence Committee of torture committed by CIA agents and contractors on 119 detainees in the post-9/11 era — 26 of whom were tortured for months by mistake. In that revelation of anguish and error were the conclusions by CIA agents themselves that their torture had not produced helpful information. President Barack Obama acknowledged that the CIA had tortured, yet he directed the Department of Justice not to prosecute those who tortured and those who authorized it.

The other substantial news story was the compromise achieved by Congress and the White House to fund the government through the end of September 2015. That legislation, which is 2,000 pages in length, was not read by anyone who voted for it. It spends a few hundred billion dollars more than the government will collect in tax revenue. The compromise was achieved through bribery; members of Congress bought and sold votes by adding goodies (in the form of local expenditures of money borrowed by the federal government) to the bill that were never debated or independently voted upon and were added solely to achieve the votes needed for passage. This is how the federal government operates today. Both parties participate in it. They have turned the public treasury into a public trough.

Hidden in the law that authorized the government to spend more than it will collect was a part about funding for the 16 federal civilian intelligence agencies. And hidden in that was a clause, inserted by the same Senate Intelligence Committee that revealed the CIA torture, authorizing the National Security Agency to gather and retain nonpublic data for five years and to share it with law enforcement and with foreign governments. “Nonpublic data” is the government’s language referring to the content of the emails, text messages, telephone calls, bank statements, utility bills and credit card bills of nearly every innocent person in America — including members of Congress, federal judges, public officials and law enforcement officials. I say “innocent” because the language of this legislation — which purports to make lawful the NSA spying we now all know about — makes clear that those who spy upon us needn’t have any articulable suspicion or probable cause for spying.

ORDER IT NOW

The need for articulable suspicion and probable cause has its origins in the Fourth Amendment to the Constitution, which was written to prohibit what Congress just authorized. That amendment was a reaction to the brutish British practice of rummaging through the homes of American colonists, looking for anything that might be illegal. It is also a codification of our natural right to privacy. It requires that if the government wants nonpublic data from our persons, houses, papers or effects, it must first present evidence of probable cause to a judge and then ask the judge for a search warrant.

Probable cause is a level of evidence that is sufficient to induce a judge into concluding that it is more likely than not that the place to be examined contains evidence of crimes. In order to seek probable cause, the government must first have an articulable suspicion about the person or place it has targeted. Were this not in the law, then nothing would stop the government from fishing expeditions in pursuit of anyone it wants to pursue. And fishing expeditions turn the presumption of liberty on its head. The presumption of liberty is based on the belief that our rights are natural to us and that we may exercise them without a permission slip from the government and without its surveillance.

Until last week, that is. Last week, Congress, by authorizing the massive NSA spying to continue and by authorizing the spies to share what they have seized with law enforcement, basically permitted the fishing expeditions that the Fourth Amendment was written to prevent.

How can the president and Congress defy the Constitution, you might ask? Hasn’t every member of the government taken an oath to uphold the Constitution? Doesn’t the Constitution create the presidency and the Congress? How can politicians purport to change it?

The answers to these questions are obvious, as is the belief of most of those in government that they can write any law and regulate any behavior and ignore the Constitution they have sworn to uphold whenever they want, so long as they can get away with it.

Copyright 2014 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Civil Liberties 
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  1. “And hidden in that was a clause, inserted by the same Senate Intelligence Committee that revealed the CIA torture, authorizing the National Security Agency to gather and retain nonpublic data for five years and to share it with law enforcement and with foreign governments. “Nonpublic data” is the government’s language referring to the content of the emails, text messages, telephone calls, bank statements, utility bills and credit card bills of nearly every innocent person in America”

    Judge, in case you missed it, Diane Feinstein could care less about the rights of Americans, her record is, and has been, ‘pro-trample’ in relation to the 4th Amendment. Her related actions translating as concern for the USA’s ‘torture record’ is laughable and stricken with hypocrisy through and through:

    http://ronaldthomaswest.com/2014/08/03/we-tortured-some-folks/

    ^ Feinstein has been in bed with the worst offenders against our Constitution on the issues that matter most. Insofar as the larger picture, it’s almost as though the neo-cons and neo-liberals are in a competition to see who can damage the rule of law to most effect:

    http://ronaldthomaswest.com/2013/06/23/if-the-left-are-sheep-the-right-are-fish/

    ^ It’s pretty unbelievably twisted model and both sides engage in the ‘constitutional horseplay’ (like kids that never grew up) where the oath to uphold is patently ignored and deferred to the courts where Jane and Joe Citizen face financial ruin and attending stress, wrecked lives and broken dreams when up against the law firm war chests of the multinationals who’d figured out it’s cheaper to buy congressmen than to buy elections-

  2. […] read this language by Diane Feinstein’s committee inserted into a law Obama signed this […]

  3. Kevin says:

    AMERICAN GOVT. CORRUPT AND BROKEN DOWN DUE TO ONE SERIOUS MISTAKE IN THE CONSTITUTION.
    SOLUTION: BINDING SUPERSEDING NATIONAL REFERENDA.

    Sir, you are so very right. This govt’s lawlessness is shocking. It is because the constitution gave all power to the 3 branches only and left none to the people. Even 3rd world countries have national referenda.

    But there is one great solution: It is a constitutional amendment to allow irreversible binding superseding national referenda, so people can pass good laws in the national interest themselves. These laws will supersede laws passed by Congress or Parliaments and Sup. Ct. rulings and cannot be overturned except on constitutional grounds by a supermajority of both houses and a unanimous vote of the Supreme Court. The people can thereupon override them with a 66% vote. Others suggest an actual amendment to the country’s constitution (with paper ballots and after ID showing proof of citizenship) started at the state level. A survey showed that 76% of the American public approved the idea.

    For eg., see:

    National Citizen’s Initiative for Democracy: http://ncid.us/index.htm
    http://www.iandrinstitute.org/National%20I&R.htm

    • Replies: @D. K.
    , @Reg Cæsar
  4. D. K. says:
    @Kevin

    Democracy, as the Founders well anticipated, is the problem, not the solution: “A republic– if you can keep it!” Alas, we could not….

  5. Yeah. That’s the really crucial question right now.

  6. J1234 says:

    From the article:
    “How can the president and Congress defy the Constitution, you might ask? Hasn’t every member of the government taken an oath to uphold the Constitution? Doesn’t the Constitution create the presidency and the Congress? How can politicians purport to change it?

    The answers to these questions are obvious, as is the belief of most of those in government that they can write any law and regulate any behavior and ignore the Constitution they have sworn to uphold whenever they want, so long as they can get away with it.”

    —-

    As the old saying goes, “When treason becomes popular, it goes by another name.”

  7. @Kevin

    From your second link:

    Because elections are managed by the states and there are no national voter rolls or other election systems, leaving states out of the process would require changes in election management.

    To say the least.

    There are “no national voter rolls” for a good reason. The election laws differ as much between North Dakota and Arizona as do the firearm laws between Vermont and Illinois.

    As for the Swiss example, it’s a lot easier to manage four languages than five races, as in America.

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