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Can You "Compromise" On The Constitution?

text of the Fourth Amendment

Former Virginia Attorney General Ken Cuccinelli and our colleague Mark Fitzgibbons have published a new op-ed on the Fourth Amendment in the Washington Examiner and it makes a point that has been all too overlooked in the debate over the future of the Patriot Act and other Obama Fourth Amendment abuses.

"Americans do not and cannot trust government to be benevolent - nor should they. This is part of the reason our Constitution was written as it was in the first place. And this truth has been proven again and again in modern times, by so many recent official misdeeds and falsehoods coming from the mouthpieces of government - including prosecutorial misconduct that has had grave consequences and serious criminal penalties for its victims."

What makes the Patriot Act debate stand out say Cuccinelli and Fitzgibbons is that some people in positions of responsibility deny that there is even a Fourth Amendment problem with arbitrarily collecting the metadata of all customer records from telephone companies.

This mass collection is not merely an expansion of power beyond previous Fourth Amendment interpretation they say, it also sets dangerous precedent that all metadata is subject to government's taking without a warrant signed by a judge after a showing of probable cause that the law may have been violated.

"Metadata" is everywhere observe Fitzgibbons and Cuccinelli. It runs our websites and social media pages and underlies the accounting and financial records of businesses. Government is already banging on both of these doors, with the Federal Communications Commission trying to seize control of the Internet and the Consumer Financial Protection Agency claiming blank-check authority over business records. A metadata "exception" to the Fourth Amendment could give government unchecked power over business, free speech, freedom of association, religious liberty and more.

Making matters worse, they say more than 300 federal statutes authorize government agencies to issue "administrative subpoenas" unilaterally. Bypassing neutral judges and probable cause, government agencies may obtain private records of individuals and businesses, Fourth Amendment be damned.

The Constitution's Bill of Rights was written in broad strokes in the context of the era. The First Amendment freedom of the press, naturally extended to radio, then television, neither of which existed when the Bill of Rights was adopted. The Fourth Amendment's protections of "papers and effects," which are private records and property, should naturally extend to metadata. The government's authority to reach metadata of persons and merchants should be read in this originalist context.

To preserve the Fourth Amendment, certain reforms would be useful in clarifying it for the 21st Century, and correcting mistakes of judicial, executive and legislative interpretation. First, there should be no presumption that private records in the possession of private third parties may be taken by the government without probable cause. Also, all warrants - and that includes administrative subpoenas - should be issued only by neutral judges or magistrates to preserve the separation of powers inherent in the Fourth Amendment. Because warrants are issued in chambers, there is no danger in matters of national security conclude Cuccinelli and Fitzgibbons.

This would seem to be the time for constitutionalists in Congress to strike and to rein-in the abuses of the Fourth Amendment that have gradually built-up like barnacles on our right to be secure in our persons, houses, papers, and effects, against unreasonable searches and seizures, but Congress it seems is headed in the wrong direction.

Now that Senator Rand Paul has almost singlehandedly stopped the reauthorization of Section 215 of the Patriot Act and its metadata collection program the USA Freedom Act is being touted as the appropriate "compromise" between security and liberty.

The problem with the USA Freedom Act is that rather than perfect the Fourth Amendment by clarifying its application to data, it would appear to legalize some of the abuses to which constitutionalists object -- particularly judge-less warrants.

Senator Paul and others, including The Electronic Frontier Foundation, a digital rights group, also oppose the “USA Freedom Act” arguing that “One of the reforms being offered in Congress is the USA Freedom Act, which bans bulk collection but replaces that collection with a new authorization for collection from phone companies.

Now that the appellate court has ruled that Section 215 doesn’t authorize bulk collection, would the USA Freedom Act actually be expanding the Patriot Act?

“That would be a bitter irony if the attempt to end bulk collection actually gave new authority to the Patriot Act to collect records,” concluded Senator Paul.

We don't think you can "compromise" on the Constitution.

As Senator Paul noted, there are those who “contend the NSA data collection has made our country more safe, but even the most vocal defenders of the program have failed to identify a single thwarted plot… If anything, the terror attack during the Boston marathon is a tragic reminder that casting too wide of a collection net for intelligence can be a distraction from the analysis necessary to stop plots — and, I’d argue, push us further from the fundamental reform necessary for our intelligence agencies to successfully counter terrorism.”

We're with Senator Paul: “The NSA should keep close watch on suspected terrorists to keep our country safe — through programs permitting due process, the naming of a suspect, and oversight by an accountable court. The sacrifice of our personal liberty for security is and will forever be a false choice, and I refuse to relinquish our Constitutional rights to opportunistic and overreaching politicians.”

Click the link to read "NSA and how the Fourth Amendment stops government abuses" by Ken T. Cuccinelli and II and Mark Fitzgibbons.

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Which part of the Constitution is not subject to compromise?

"We don't think you can compromise on the Constitution."

I agree wholeheartedly. So why have you compromised on the presidential eligibility clause in Article II of the Constitution?

You refuse to say a word about the obvious ineligibility of the current fraudulent occupant of the White House, and you include candidates who are clearly ineligible in your presidential polls.

How do you reconcile these apparent inconsistencies?