Democracy subsists on a series of trade-offs, a balancing of competing values. When our founders set up our three-branch government and wrote a Constitution and Bill of Rights, they fashioned an infrastructure they hoped would keep those competing values in balance.
When Federal District Court Judge Richard Leon ruled yesterday that the NSA’s power-vacuuming of citizens’ phone data is likely contrary to the Fourth Amendment’s prohibition against unreasonable search and seizure, our system took a step toward rebalancing two competing values: our right to keep the government out of our private business versus our right to our government’s protection from our enemies.
This is only the beginning of what will undoubtedly be a long trip through the judicial process. But it gives me hope.
This particular clash of values may be the most difficult one we have to deal with. Of course, we all want to be safe – from terrorists and from criminals. But we also need to be safe from our own government.
The current administration and the agencies it controls like the NSA and its brethren may be motivated purely by a desire to keep us safe and not by any nefarious wish to know what we’re thinking so that they can use it against us.
But what about the next government and the one after it? That’s what the founders were trying to protect us from: a future government that could decide not to bother with civil liberties in the name of some alleged larger good, a good likely to serve the needs of the majority and ignore those of any minorities.
At the extreme, think George Orwell and “1984.” Everyone was safe, right? Because no one had a right or access to any individual liberties that might threaten the system. Hardly the way we want to live.
About 200 years before Orwell’s iconic date, back in 1792, the founders thought keeping the government out of our homes and possessions was so important that they wrote it into the Bill of Rights. And they did not say, “But the government’s intrusion into your home and privacy is perfectly OK if you have nothing to hide.” They knew that what is orthodox and acceptable today may be suspect and punishable tomorrow.
That’s the danger of giving authorities free rein to know whom we call and email. Just think of what Joe McCarthy could have done with the kind of info the NSA has been gathering. Both the Fourth Amendment’s prohibition against invasion of our privacy and the First Amendment’s protection for freedom of association are being breached when the government knows whom we contact and with whom we “associate.” It would be so easy to take a few more steps and tell us whom we may contact and with whom it is OK to associate, which is what McCarthy tried to do.
Using the judicial system, Judge Leon has taken us a step back from that precipice and toward restoring the balance between privacy and freedom on the one hand and safety and security on the other. So much better that we face this and deal with it now – through the system set up to do that – than to slide so far toward the security side that we tip into tyranny.