by Professor Randy Barnett of Georgetown University Law Center had an excellent op-ed in yesterday’s Wall Street Journal. In the op-ed, he calls the seizure of private data by the NSA unconstitutional. Barnett goes on to say that the work of the Consumer Financial Protection Bureau in compiling a database of our private financial transactions including credit card payments, mortgage transactions, etc. should also be considered a violation of our Fourth Amendment rights to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”.
The comment of the day concerns what should be the proper role of government in relationship to the citizenry: the government is the servant and the people are the masters.
In a republican government based on popular sovereignty, the people are the principals or masters and those in government are merely their agents or servants. For the people to control their servants, however, they must know what their servants are doing.
The secrecy of these programs makes it impossible to hold elected officials and appointed bureaucrats accountable. Relying solely on internal governmental checks violates the fundamental constitutional principle that the sovereign people must be the ultimate external judge of their servants’ conduct in office. Yet such judgment and control is impossible without the information that such secret programs conceal. Had it not been for recent leaks, the American public would have no idea of the existence of these programs, and we still cannot be certain of their scope.
Even if these blanket data-seizure programs are perfectly proper now, the technical capability they create makes it far easier for government to violate the rights of the people in the future. Consider why gun rights advocates so vociferously oppose gun registration. By providing the government with information about the location of private arms, gun registries make it feasible for gun confiscation to take place in the future when the political and legal climate may have shifted. The only effective way to prevent the confiscation of firearms tomorrow is to deprive authorities of the means to do so today.
