Can the 3rd Amendment Save Us from the NSA?

If like me you have been appalled at the utter lack of respect for our privacy that the federal government has shown, then you’ve probably considered all of the 4th and 5th Amendment protections that the NSA seems to be violating. While the government seems to have many defenders from both major parties – President Obama to Senators John McCain and Lindsey Graham. There are still those of us who value our liberties and would rather be attacked for our beliefs than have the freedoms we enjoy stripped from us by a tyrannical government. And make no mistake–this government is tyrannical.

Let’s quickly recap how and why the 4th and 5th Amendment should protect us from the NSA snooping on our private lives.

The Fourth Amendment says:

“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.”

There is no question that the Fourth Amendment “should” protect us from the unreasonable search and seizure of our private information that is on our computers, phones, and other electronic devices. The simple fact that we use these devices to conduct transactions does not mean that transaction was meant for public consumption. Yet in the NSA scandal that is exactly what is taking place – the government keeping record of every electronic move we make simply because they  can. No warrant, no probable cause, no specific items cited, not even an investigation to give the grounds to conduct their search.

The pertinent portion of the Fifth Amendment says:

“Nor shall private property be taken for public use, without just compensation.”

Our personal email correspondence, our record of transactions, our conversations with loved ones and friends… all of these can reasonably be assumed to be our private property. But the NSA has treated all of our electronic communications, phone calls, and text messages as material to be publicly consumed. No just compensation has been given; in fact, no compensation has even been considered. What is the NSA’s ground for the illegal work it has conducted by tapping my phone and your phone, by recording my emails and your emails, by keeping track of our every online move? “To keep America safe.”

Law Professor and popular legal blogger Glenn Reynolds of Instapundit fame has argued that the NSA is most likely violating the 3rd Amendment.

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

The image that comes to my mind when thinking about the 3rd Amendment is that of a British red coat being forcefully “quartered” in the home of a local citizen. However, Reynolds argues that the Framers and the Supreme Court both think about this amendment in a bit of a different way.

3rd Amendment“Troop quartering also violated one of the classic “rights of Englishmen,” the notion of the home as a castle. As the U.S. Court of Appeals for the Second Circuit said in one of the few Third Amendment cases ever to be heard, the Amendment was designed to assure a fundamental right of privacy. If you think of it that way, what things does the government do that violate that privacy right today? …The famous birth-control case of Griswold v. Connecticut invoked the Third Amendment, along with several others, with the Court asking, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? …These specific concerns weren’t what the Framers had in mind. In their day, to spy on a family in its own home, you’d have to put a soldier there. But now we have electronic troops in the form of software, gadgets and sensors. Maybe the law needs to take account of this. We have updated our interpretations of the First Amendment to go beyond hand-operated letterpresses, the Second Amendment to go beyond flintlocks, and the rest of the Bill of Rights to account for technological change of all sorts. Why not the Third Amendment, too?”

If the Third Amendment is primarily supposed to be a measure of protection of privacy for our citizens, then it should be the primary weapon we use to fight off the NSA’s invasive domestic spying program.

Beyond that, shouldn’t it be disconcerting for our politicians that a strong argument can be made from various and sundry perspectives that the NSA spying program is unconstitutional? In fact, shouldn’t the first concern of our representatives in Congress be the protection of our liberties as opposed to protecting us from some possible future attack? Any way you slice the matter, the NSA program goes too far and our elected officials need to step up and dismantle the program.