REMEMBERING THE CONSTITUTION: PART ONE

     This past Monday may well emerge in the history books as the day that constitutional law began to gain the upper hand following revelations of spying by the National Security Agency.

     On December 16th, 2013, federal judge Richard Leon ruled that the bulk gathering of so-called meta-data by the National Security Agency is probably unconstitutional. Richard Leon, ironically, was appointed by George W. Bush, who gave the NSA the green light in the wake of 9-11 to prosecute the war on terror with little Congressional oversight. Metadata is a word that has rentered the public lexicon only recently. It refers to everything associated with a phone call except for its content. If I call someone, the NSA keeps a record about whom I am calling and the duration of the call. You may recall that the first story that broke in the media about the NSA earlier this year concerned the collection of metadata by Verizon. Further revelations about the NSA have made the collection of metadata seem almost quaint in comparison; however, the fact that a federal judge is questioning the constitutionality of this collection has great consequences for the future of the surveillance state. It also illuminates a way forward for conservative candidates in 2014 and beyond.

     Those conservatives who would like to dedicate future electoral campaigns to trashing Obamacare have a strategic problem. Time and again when the GOP is asked to offer an alternative to the Affordable Care Act, none is forthcoming. Mitt Romney stammered repeatedly during the campaign that the same plan he had implemented on a state level would not work for the country at large, yet he never suggested another realistic way to deal with the deficiencies of the current health care system. We conservatives would be much better off expending our energy in devising a concrete alternative to the Heritage Foundation/Butler/Romney/Obamacare model than in attacking it! Since none appears to be at hand, we should thank Providence that Edward Snowden has revealed the ugly underbelly of the Obama Administration for all to see. What began as an anomaly under President George W. Bush – namely, the expansion and consolidation of federal surveillance powers – metastasized under the current regime into a sophisticated and systematically codified domestic spying apparatus unprecedented in recorded history. Conservatives would be wise to make this overreach of the executive branch one of the most signficant issues of the 2014 and 2016 campaigns (second perhaps only to the economy) as long as an alternative to Obamacare remains nebulous.

     Concretely, conservatives are in a position to make sure that their 2014 Congressional candidates will implement legislation requiring that the domestic activities of the NSA be drastically curtailed. Instead of encouraging the epithet of the “Do-Nothing Congress,” conservatives could detail with great specificity the ways they would create safeguards to protect the civil liberties of Americans, such as by abolishing the Foreign Intelligence Surveillance Court, making the NSA’s actions transparent to Congress, limiting collection of metadata to that of known terrorist suspects, and so on. This position will be bolstered by the view that the panopticon of the NSA has failed to prevent even a single terrorist attack, including the Boston Marathon bombing and the assault on the Benghazi embassy. This is not cynical electoral opportunism like Bush’s repeated evocation of 9-11 during the 2004 campaign – this is the position of a party returning to its conservative roots and rejecting the Big Brother-style GOP of the aughts, which was too quick to deny its origins when it came to the Bill of Rights and constitutional liberties. Republicans’ flirtation with the surveillance state as fostered by heretics such as John Negroponte (Total Information Awareness, anyone?) has severely damaged their brand and rendered potential electoral supporters confused or cynical. Imagine how the electorate would be invigorated by a GOP that dared to be true to itself in promoting a vision of smaller government, respectful of citizens’ privacy and constitutional rights! How many former Obama supporters that have become disaffected and disengaged because of Mr. Snowden’s revelations might find common cause with GOP candidates decrying the abuse of federal surveillance powers? How many Ron Paul supporters might work diligently for the election of a Republican presidential candidate that wanted to present Congress with bills designed to render the NSA more transparent? Is this merely a romantic fantasy? I think not. A GOP dedicated to preserving the security and liberties of its constituents is infinitely more electable (and romantic) than one that has nothing to offer the country when it comes to replacing farces such as Obamacare besides vague bromides. It remains only for conservatives to see if they have the guts to stand up against an Orwellian future instead continuing to waffle on the question of civil liberties in the United States. Sometime the arc of justice (personified by Judge Leon) and political opportunity coincide, and the astute politician knows when to act in accordance with this harmony.

Thomas Davis – NEWSslinger Contributor

Thomas Davis is a politically and economically conservative writer living in Portland, Oregon. He is happily married with two children and when not fulminating against the liberal stranglehold on our country, enjoys hiking, country music, and cooking outdoors. He welcomes your comments and questions.