A Frisky Constitutional

RightsI thought the headline was so hilarious until I found out “constitutional” is decidedly not a word that means “enema.” Dammit!

Still, ever since colonic times we Americans have clung to fiercely held beliefs that we know to be self-evident. (Whew, that was a close one. For a moment there I almost didn’t bring this article down to the proper level.)

I may still be gin treatment but allow me to raise up my Tom Colonic and propose a wee toast:

O say NSA spying on through the night,
And so proudly assailed with your eyesight’s fast scheming,
With broad swipes and little regard to what was right,
O’er the sheeple you watched, and the porn they were streaming?

Source: Tom B. Taker, lyricist

As we all know, those rights our founders held so dear were elegantly immortalized in the U.S. Constitution. Except for the stuff they got wrong, of course, like those not “free” being counted as only three-fifths of a person and women not having the right to vote.

I don’t want to hit you with an elementary civics lesson, but we all know the primary function of the Supreme Court Of The United States (SCOTUS) is to chisel away at the rights enumerated in that great document.

In other words, it’s finally time for me to weigh in on NSA monitoring, PRISM and more.

SCOTUS has ruled in the past that the erosion of rights guaranteed in the Constitution can be acceptable if done in the name of the “public good.” For example, in the case of random sobriety checkpoints:

However, by a 6-3 decision in Michigan Dept. of State Police v. Sitz (1990), the United States Supreme Court found properly conducted sobriety checkpoints to be constitutional. While acknowledging that such checkpoints infringed on a constitutional right, Chief Justice Rehnquist argued the state interest in reducing drunk driving outweighed this minor infringement.

Source: Wikipedia – Random checkpoint

Some folks seem to be under the impression that some parts of the U.S. Constitution are sacrosanct and above the “public good” standard while seemingly being accepting of other intrusions. Yes, I’m thinking about you, Second Amendment. I don’t find this way of thinking to be logical.

I’ve been pondering the recent hubbub about the NSA, the gathering of phone records data, and reports of a program known as PRISM that collects internet data of Americans not under suspicion of wrongdoing. This clearly violates the intent of the Fourth Amendment and protections against unreasonable search without cause by the government.

If the Fourth Amendment is to be infringed in this manner, clearly we have to evaluate what is being gained in the name of the “public good” and if the cost is equitable. The government, initially intensely secretive about their programs, is now quick to point out that their surveillance programs have prevented 50 terrorist attacks. That’s a pretty hefty chunk of public good.

After thought, I’ve come to the opinion that yes, the occasional whittling of our basic rights are acceptable if accompanied by a sufficient measure of public good. Most of us accept this basic principle as a matter of course. We acknowledge that our First Amendement right of free speech can be restricted to the point that it’s illegal to exercise it in certain ways. Like yelling “fire!” in a crowded theater.

On the other hand, these infringements of rights must be purchased through the consent of the governed. The difference between yelling “fire” in a theater and NSA-style surveillance programs is that the public was never informed. It is quite hard to give informed consent to that which you do not even know.

The awesome power of government must be tempered by transparency and common sense. The founders who came up with the U.S. Constitution knew this and sought to establish common sense limits on governmental powers. I say that if the government wants to surveille all of us, they must get the “public good” exception from SCOTUS, and be public about what they are doing. That, in turn, gives the American people (aka those being surveilled)  the ability to live their lives accordingly.

Some will argue that such transparency will greatly weaken the effectiveness of the programs. This is just like sobriety checkpoints, which are frequently announced in advanced and even published in the media. Even with those concessions, their nets still manage to bring in a lot of fish. So it should be with surveillance programs, too.

There may be legitimate times when secrecy is absolutely required for effective law enforcement, but those periods must be limited and as infrequent as possible. Secrecy comes at the cost of public trust, even when done under the guise of good. Only when followed by transparency will the people know if they have been screwed or not.

Transparency must always be the price of weakening basic rights granted in the U.S. Constitution. The good news, if you think about it, is that this is a pretty damn easy fix.

Bringeth forth thy pith and vinegar

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