There is reason to feel optimistic on this Constitution Day

Back in 2004, Congress passed an amendment offered by the late Sen. Robert Byrd (D-WV) to an omnibus spending bill to commemorate the signing of the Constitution and declare September 17, the day on which the document was signed by its framers, to be “Constitution Day.”

It’s ironic that a legislative body that frequently steps outside it’s limitations would pass a measure recognizing a document for which they have little regard. In the years preceding the creation of Constitution Day, Congress passed a number of measures that fly in the face of the intent and spirit of the Constitution and the rights protected therein.

But Constitution Day means a little more this year than in the past, given the renaissance the document has seen, particularly in just the past few months.

There are several examples from which we could choose to highlight the rebirth of the Constitution, such as Sen. Rand Paul’s filibuster back in March or the defeat of onerous gun control measures, including expanded background checks and a ban on so-called “assault weapons,” that would have further infringed upon Second Amendment rights. But recent developments concerning the NSA and Syria are, arguably, in the back of most Americans’ minds.

Just 11 years ago, in the aftermath of the tragic terrorists attacks that claimed the lives of nearly 3,000 people, Congress passed a measure, the USA PATRIOT Act, that gave federal law enforcement and intelligence agencies new and expanded tools to combat terrorism. Civil libertarians voiced concerns that the unique powers given to these agencies could be used to violate Americans’ privacy, but the panic in the immediate aftermath of 9/11 carried both sentiment in Congress and among the public.

There have been instances of abuse of these powers in the past. In 2007, the Washington Post reported that an audit of just 10% of FBI national security investigations found that the agency broke privacy rules and protocols more than 1,000 times. Just a few years later, another report indicated that the FBI broke the law by obtaining phone records “by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records.”

Recent disclosures by Edward Snowden, a whistleblower who worked a private defense contractor, shined some much needed light on the vast national surveillance apparatus that now exists.

The disclosures, which are still coming out in media reports, show that the National Security Agency (NSA), through the secretive FISA court, has obtained access to Americans’ phone records and Internet metadata, even if they’re not suspected of terrorist activity.

The framers of the Constitution had experienced the dangers of general warrants, which allowed British authorities to search their homes and effects whenever they so desired.

James Otis, who represented merchants during a legal challenge to general warrants in 1760, called them the “worst instance of arbitrary power.” John Adams, who was in the courtroom to while Otis passionately spoke against this intrusion, later said, “[T]he child independence was then and there born,[for] every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance.”

Guarding against this sort of snooping is precisely why the Fourth Amendment exists. It was meant to protect Americans from unreasonable searches and seizures, serving as a check against government overreach.

Thankfully, Americans realize the threat that these tools represent to their privacy. A recent poll from the Associated Press found that nearly 60% of Americans oppose the NSA’s collection of phone and Internet metadata. Moreover, a majority believes that the federal government is doing a poor job of protecting their privacy.

Civil libertarians in Congress, members of both parties, have been working to limit the scope of this snooping. Though they’ve been unsuccessful in rolling back the illegitimate powers that law enforcement and intelligence agencies have obtain, they are clearly winning the narrative as even the author of the PATRIOT Act, the law through which the government is claiming such vast power, has joined the calls to rollback the surveillance apparatus.

The resurgence of the Constitution doesn’t end with the NSA. As the country was staring down the unilateral use of military force against Syrian President Bashar al-Assad’s brutal regime, nearly 200 members of Congress from both parties reminded President Barack Obama that he had a constitutional obligation to seek authorization.

Facing pressure from Capitol Hill and public opposition to another war, President Obama eventually decided to seek congressional authorization. As opposition to the proposed strikes mounted in Washington, the Obama Administration desperately embraced a diplomatic solution that may well keep the United States from going to war.

Some say that the Constitution is an outdated document written by men who didn’t foresee the challenges that the United States faces today. This is a poor narrative and a false premise. Indeed, it has largely been the deviation away from the Constitution that has presented the challenges that we currently face, not the other way around.

The limitations placed on the federal government and the civil liberties preserved by the Constitution are what makes the United States unique in history. That’s not mentioned from a perspective of arrogance, but rather to note the extraordinary principles of personal liberty and limited government on which this country was founded.

The Constitution has served “We the people” well when the restraints on government are followed. In a town where political expediency and power hungry politicians clamour for more power, there is a growing group of senators and representatives — including Rand, Paul, Mike Lee, Ted Cruz, Justin Amash, Thomas Massie, and many others — who are pushing back and changing the narrative that once prevailed.

To be sure, the constitutional crisis in which we find ourselves didn’t begin under President Obama or President Bush. It has been going on for some time. And tough there is still much more that needs to be done to beat back the leviathan in Washington — both by restraining executive power and electing members of Congress who respect limited government — this Constitution Day a little brighter than in years past.


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