It's a great time for liberals to brush up on their knowledge of originalism and textualism. These judicial theories, which say that judges should interpret constitutional provisions or statutes by looking solely at their "original public meaning," are embraced by many of the conservative judges and justices appointed by President Donald Trump who have begun to build a stranglehold on the federal judiciary. Despite recent work demonstrating the bankruptcy of these approaches, liberal lawyers trying to get progressive results at the Supreme Court have already begun trying to pick off conservative justices through a calculated embrace of the theories. In recent decades, conservative judges and lawyers, led by Justice Antonin Scalia, advanced two language-based theories for judges to use when interpreting law. The theory of originalism says that courts should interpret phrases in the Constitution in line with the "original public meaning" of the words.
After the release of the DOJ inspector general report, Judge Andrew Napolitano says the real problem is with FISA's secrecy and standards that conflict with the Constitution. Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978 in response to the unlawful surveillance of Americans by the FBI and the CIA during the Watergate era. President Richard Nixon -- who famously quipped after leaving office that "when the president does it, that means that it is not illegal" -- used the FBI and the CIA to spy on his political opponents. The stated reason was national security. Nixon claimed that foreign agents physically present in the U.S. agitated and aggravated his political opponents to produce the great public unrest in America in the late 1960s and early 1970s, and thus diminished Americans' appetite for fighting the Vietnam War.
WASHINGTON--Police must get a search warrant before obtaining data showing the location of cellphone users, the Supreme Court ruled Friday, the third in a string of decisions that limit law enforcement's access to the most intimate details of citizens' digital lives. "When the government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone's user," Chief Justice John Roberts wrote in the 5-4 opinion. "Unlike the nosy neighbor who keeps an eye on comings and goings," he wrote, the signal towers and processing centers that track cellphone users "are ever alert, and their memory is nearly infallible," making analog-era precedents prosecutors cited to justify such warrantless searches all but obsolete. As it had in 2012 and 2014, the court rejected government arguments that police should have the same access to digital data as investigators do, under 20th century precedents, to examine business records held by banks or to conduct shoe-leather surveillance. "There is a world of difference between the limited types of personal information addressed" by 1970s decisions allowing warrantless examination of business records "and the exhaustive chronicle of location information casually collected by wireless carriers today," the court said.
Those of us who believe that the Constitution means what it says have been arguing since the late 1970s that congressional efforts to strengthen national security by weakening personal liberty are unconstitutional, un-American and ineffective. The Foreign Intelligence Surveillance Act (FISA), which Congress passed in the aftermath of President Richard Nixon's use of the CIA and the FBI to spy on his political opponents, has unleashed demons that now seem beyond the government's control and are more pervasive than anything Nixon could have dreamed of. This realization came to a boiling point last weekend when President Donald Trump accused former President Barack Obama of monitoring his telephone calls during the 2016 presidential election campaign. Can a U.S. president legally spy on a political opponent or any other person in America without any suspicion, probable cause or warrant from a judge? The president can order the National Security Agency to spy on anyone at any time for any reason, without a warrant.
Supreme Court hears challenge to union fees and reviews latest travel order. The Justice Department suffered a digital-age defeat Friday at the Supreme Court, which sided with the privacy rights of cellphone users in a dispute over law enforcement tracking their movements by law enforcement. In a 5-4 ruling, the court said law enforcement generally will need a warrant for such searches. At issue is whether the Constitution's Fourth Amendment requires a search warrant for the government to access a person's cellphone location history. It is the latest foray by the justices into how laws should be tailored to keep up with technological advances.