The United States Constitution is the definitive principle in which our country was founded on. For the first time since the Magna Carta, had a document established not only the rights and liberties of a people, but this time also restricted and established the foundations of a limited government. Sadly, forces have been working to dismantle the Constitution for nearly half a century, attacking the civil liberties of Americans and establishing a bigger, more centralized government than our founding fathers intended. In a call for a system of checks and balances within government, James Madison, Alexander Hamilton, and John Jay wrote a series of articles and essays to promote the ratification of the Constitution called The Federalist Papers. In essay number 51, Madison, known throughout history as the Father of the Constitution, wrote:
All the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. (qtd. in Paulsen, Michael Stokes. 11).
At first read, one might think he’s advocating for bigger government with his mention of multiple departments. However, further into this essay we find that he is not only advocating for a system of checks and balances, but for a system of government that can and must restrain itself from excessive power. Madison continues in essay Number 51:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. (qtd. in Paulsen, Michael Stokes. 11-12).
In this he advocates a government that while a necessity for men, must restrain from over-exerting its power. Considering they had just fought to free themselves from the chains of oppressive government, they knew that they must not allow this experiment called “America” to follow in its footsteps.
As Americans, we should be concerned with the expansion of federal power in recent years. To stand and fight against this growing trend, we as Americans need to ask ourselves two profound questions, “What are some examples of this expansion of federal power?” and “What can we do about it?” I will help uncover some answers to both those questions. The federal “leviathan” is orchestrating its power to dismantle the Constitution through its bureaucracies like the National Security Agency and disastrous laws like the Patriot Act, that allows the government to abuse the civil liberties granted to Americans by the Constitution. What do I mean by the term federal leviathan? Thomas Hobbes, a seventeenth century writer, penned a book entitled Leviathanwhere he advocates for strong centralized government. In it he wrote, “The government it self, or the administration of its affairs, are better committed to one, then many” (163). The term Leviathan is biblical. It is a ferocious sea monster in the Old Testament. In this quote he contradicts the separation of powers advocated by our founding fathers. Some people might see this expansion of government as a safety measure to the threats in the 21st century like terrorism, but when should we sacrifice our civil liberties for safety? Now, do not let this call for less government give the implication that I’m advocating for no government or no social programs, quite the opposite is true – I dream of a streamlined government that is fiscally responsible, where fear of a shut down or default is a thing of the past, and of a government that adheres to the Constitution to protect Americans from an outside force while promoting individual rights to life, liberty, and the pursuit of happiness. I decided to do this research because I recognize the government is growing outside the bounds set by the Constitution and can no longer sit silent.
To begin this long task of uncovering government bureaucracy, we must first go back in time. We must do this to understand the history of how the federal government first began to diminish our civil liberties granted to us in the Constitution. By understanding how they intrude on our liberties, we can recognize the importance of standing up against such atrocities and that is the truest and the only way to defend the Constitution. It begins with the National Security Agency and programs like the Foreign Intelligence Surveillance Act. Understanding how they came in existence, we can realize that in many ways are they are interconnected with one another and have since weakened the powers granted to us as United States citizens. In my opinion, this is important because it sets a backdrop to an ever-expanding government.
The creation of the National Security Agency is long and a bit complex. Douglas Stuart, an adjunct professor at the U.S. Army War College, details the events preceding the creation of the National Security Agency in his article entitled, Ministry of Fear: The 1947 National Security Act in Historical and Institutional Context. The 1947 National Security Act, as Stuart describes, was intended to prevent an attack within the continental United States as catastrophic as Pearl Harbor by designing a new system that would foster “inter-service cooperation within the armed forces, centralizing the gathering and analysis of foreign intelligence and facilitating civilian–military coordination” (Stuart 297). The act created the Central Intelligence Agency, the National Security Council, and an agency that would become the Department of Defense, a unification of all three branches of the armed forces.
So where does the National Security Agency fall into all of this? A declassified file named The Origins of the National Security Agency 1940-1952 from the National Security Agency shows that the Joint Chefs of Staff were tasked to coordinate what was then called the Armed Forces Security Agency to centralize communications among the separate branches of the military (Burns 115-116). This endeavor would ultimately fail and President Truman would request a special committee, headed by his friend George A. Brownell, a New York attorney and consultant to the State Department, to analyze the shortcomings of the Armed Forces Security Agency and apply fixes; the product of his inquiry was the Brownell Report (National Security Agency). The roots of the National Security Agency can be traced to this document and a memorandum from Truman. One interesting provision in this memorandum states the following on the duties of the National Security Agency, “To coordinate the communications intelligence activities among all departments and agencies authorized by the President to participate therein” (Truman). Now, most of that seems reasonable, right? Streamline communications to prevent another Pearl Harbor. But there was another attack, and soon thereafter began the eradication of our civil liberties.
During the three decades following the National Security Act of 1947, the federal government conducted near free-reign, warrant-less surveillance, and smear campaigns on American citizens suspected as communist supporters or sympathizers, most notably journalists, civil-rights organizers, and anti-war activists, including Muhammad Ali and Martin Luther King, Jr., in the name of national security. The details are now declassified (Aid and Burr, National Security Archive). In an attempt to bring in congressional oversight to the matters of foreign intelligence gathering, the 95th Congress passed the Foreign Intelligence and Surveillance Act of 1978. This act defined what the federal government classified as an “agent of a foreign power” and the methods foreign intelligence could be gathered ranging from physical and electronic surveillance to physical searches. It also established a special court, the Foreign Intelligence Surveillance Court, to handle warrant requests by federal investigators. The most notable aspect of this court is that it is ex parte, meaning the government is the only party present. The act allowed the President of the United States to authorize electronic surveillance for up to one year without Foreign Intelligence Surveillance Court order by discretion of the United States Attorney General “provided the surveillance is directed solely at communications among or between foreign powers” (Foreign Intelligence Surveillance Act of 1978, Dept of Justice).
September 11, 2001 – I remember like it was yesterday. I had gotten up early for a test at the Department of Motor Vehicles. I passed. I walked into my place of employment to tell all my co-workers the great news, but I could tell something was wrong when I walked through the double set of sliding glass doors. Customers and employees were huddled around the giant TV by the service desk. The images on television lit up their faces like a campfire. The first tower had been struck. Nobody said anything. It was as if the impact of the airliner had taken the wind from their lungs. We all stood there for what seemed like an eternity and again gasped as if we were coming up for air as we witnessed the second plane came into view. I couldn’t believe it. What was happening? Were we at War? Would the people in the towers make it out in time? Throughout the day the news unraveled like a ball of innocent yarn and my heart, shattered, sank hard and fast, further and further into reality.
October 26, 2001 – President George W. Bush signs into law the Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, the PATRIOT Act. This act, which undercuts large provisions of the Fourth Amendment, was passed with overwhelming support in Congress. Patricia Mell, dean at John Marshall Law School, wrote Big Brother At The Door: Balancing National Security With Privacy Under The USA Patriot Act that explained the reason why the Patriot Act had such huge support by Congress and the majority of Americans at that time was because people believed drastic measures were needed to restore security and prevent future attacks (Mell 379). What are some of the dangers of the act? In her article, Mell states, “The Patriot act expands government access to private records without significant judicial review and that it gives the federal government the ability to compile dossiers on private citizens” (394).
The Fourth Amendment of the Bill of Rights, the principle amendment granting individual privacy from government, reads as follows, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (U.S. Const., am. IV). Mell writes in her article that while the “United States Constitution does not explicitly guarantee the right to privacy, the framers of the Constitution created the Fourth Amendment to be the guardian of American civil liberties. By ensuring freedom from unreasonable governmental intrusion, the Bill of Rights guaranteed core principles” (Mell 377). She continues, “Both the warrant clause and reasonableness clause of the Fourth Amendment acted as buffers between the government and the individual” (Mell 381).
With the Patriot Act undermining the protections fourth amendment and the United States’ current “War on Terror,” the federal government has a constant focus on anyone and everyone who might be considered a terrorist. This includes not only what the government classifies as “agents of a foreign power,” as defined by the Foreign Intelligence Surveillance Act, but United States citizens as well. In a article written by Cathy Zeljak, a director of global resources at George Washington University entitled The USA Patriot Act And Civil Liberties (Part II): Problems Of Post-Communism, asks a very definitive question, “Are we sacrificing essential liberties in the fight against terrorism?” (Zeljak 69). Some people may think or say, “I’ve got nothing to hide, so why worry?” Like a domino effect, once one liberty of the Constitution is defiled, the rest shall follow. Under the Patriot Act, the indefinite detention of terror suspects without trial is warranted within the discretion of the Attorney General (Patriot Act 107-56). However, not to sound like a conspiracy theorist, this law does not apply to American citizens as detailed by the National Defense Authorization Act of Fiscal Year 2013:
Nothing in the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.” (112 Congress H.R.4310).
However, there are a few people that question the wording of this phrase. The American Civil Liberties Union, a non-profit corporation dealing primarily in civil rights advocacy, has questioned the wording of the bill. In an interview with the newspaper Politico, an ACLU employee said that the “language on indefinite detention of Americans is completely meaningless. There’s no doubt that habeas rights are available to anyone who’s detained in the U.S.” (Gerstein). Raha Wala, a lawyer for Human Rights First, another non-profit civil liberties corporation, told the Huffington Post, “This language doesn’t do anything of substance, It doesn’t ban indefinite detention within the United States or change anything about existing law” (Mcauliff). Without a clear definition or understanding of the law, could that possibly put the fifth, sixth, seventh, and eighth amendments of the Bill of Rights in a cloud of uncertainty? As the lines blur on who is defined as a terrorist, some major concerns are raised with the recent release of a report by The Huffington Post that writes of four Americans that had been killed by drone strikes while overseas (Yost). In this article, Eric Holder, United States Attorney General, argues the drone strikes were counter-terrorism operations. One begins to question, however, if the ends justify the means in combating terrorism. A day later, BBC News confirmed the story (BBC News).
June 6, 2013 – A story would come out of The Guardian, a British newspaper, describing an international data-mining program run by the National Security Agency called PRISM. This program collected data on private citizens abroad and in United States. The program snatched data from tech industry leaders like Apple, Google, Facebook, and Yahoo (Greenwald). Three days later, the Washington Post reported the leaked information came from a Central Intelligence Agency employee named of Edward Snowden (Gellman, “Edward Snowden comes forward as source of NSA leaks”). In an alarming story from the Associated Press, Snowden said the National Security Agency looked at and recorded the social connections of millions of Americans from sites like Facebook and also collected GPS location information, voter registration data, property records, and tax data (Associated Press). Snowden would later tell the Washington Post that the National Security Agency collected millions of address book information from United States citizens from services like Google, Yahoo, Microsoft, Apple, and Facebook (Gellman, “NSA collects millions of e-mail address books globally”).
To go deeper in the rabbit hole, in an extensive article written for the The Harvard Law Review Association by Neil Richards, a Law Professor at Washington University School of Law, entitled,The Dangers of Surveillance, he details a massive National Security Agency storage facility being built in Utah that will channel most of the world’s internet traffic for the purpose of decryption and analysis (Richards 1938). He mentions that through the National Security Act government agencies such as the Federal Bureau of Investigation can obtain information on people through their telephone companies, Internet service providers, banks, credit agencies, and other institutions. He articulates that theses activities are often covert and come with a gag order that prohibits the recipient of the letter from disclosing its existence, even to the person whose secrets have been told to the government (Richards 1941-1942). In a further twist of the Constitution, the press isn’t even protected by the first amendment nor are they safe from this Orwellian state of government. A recent article in U.S. News and World Report said that congressman Alan Grayson of Florida is pushing for the Justice Department to rein in Glenn Greenwald, The Guardian’s Brazil-based journalist who first reported the National Security Agency domestic spying program story. Greenwald in response said, “There is a lot of concern at this point that the administration and the Justice Department are criminalizing investigative journalism and infringing on the First Amendment” (Nelson).
America is in peril. How can we as Americans stop runaway government? Is it even possible? Honestly, I think so. Fixing our system of government is more attainable than you might think. Currently, the only person in government who must abide by term limits is the President. House of Representative members and Senators hold their seats for two and six years, respectively. They are, however, not bound by a set number of term limits. One of the senators from Kentucky, Rand Paul, has expressed concern over this issue, believing that the longer a member serves, the more they are inclined to vote on their interests over those of the American people. His solution, S.J. Res.1, is to limit terms to 12 years (Paul). Here in the public sphere, one of the simplest ways of restoring our Republic is to have more people interested into politics.
Now is not the time to be cynical about government though. Believe me, I used to firmly articulate that my vote didn’t matter when in fact that couldn’t be farther from the truth. It does matter. Engage in politics and voting for those who value principle not their political party is a step in the right direction. Standing by the Constitution will ensure victory in curbing government overreach. Also, having Americans more invested in politics will ensure that the unjust be held accountable for their actions as well. It is good that there are different ideologies in our realm of politics and it is important that each voice has an equal say, so I must interject to say that my thoughts and theories on solutions are not soundproof – compromise is fundamental.
If we recognize that we might not agree on everything, but accepting differences of opinion and compromising is one way to move this nation forward. In 1958, at a Loyola College Alumni Banquet in Baltimore, a senator from Massachusetts spoke some very wise words of bipartisanship and a direction for our country, “Let us not seek the Republican answer or the Democratic answer, but the right answer. Let us not seek to fix the blame for the past. Let us accept our own responsibility for the future” (Kennedy). In this he pleads to all to put aside political differences to do what we know is the noble cause in protecting our country. Three years later, this same senator would become president of the United States and in his inaugural address utter these words:
I do not believe that any of us would exchange places with any other people or any other generation. The energy, the faith, the devotion which we bring to this endeavor will light our country and all who serve it. And the glow from that fire can truly light the world… With a good conscience our only sure reward, with history the final judge of our deeds, let us go forth to lead the land we love. (Kennedy).
112 Congress H.R.4310.”National Defense Authorization Act for Fiscal Year 2013.” Library of Congress, n.d. Web. 20 Oct. 2013.
Aid, Matthew M, and William Burr. “Disreputable if Not Outright Illegal”: The National Security Agency versus Martin Luther King, Muhammad Ali, Art Buchwald, Frank Church, et al..” The National Security Archive. George Washington University, 14 Nov. 2008. Web. 28 Oct. 2013.
“BBC News – US confirms four American citizens killed by drones.” BBC – Homepage. N.p., 23 May 2013. Web. 21 Oct. 2013.
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Yost, Pete. “Four American Citizens Killed In Drone Strikes Since 2009: Eric Holder.” Breaking News and Opinion on The Huffington Post. The Huffington Post, 22 May 2013. Web. 21 Oct. 2013.
Zeljak, Cathy. “The USA Patriot Act And Civil Liberties (Part II): Problems Of Post-Communism (2004) 69-71. Web. 13 Oct. 2013.
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