Both on the pundit circle in D.C. and to some extent on this blog, there is a perception that protection of privacy rights must come from Washington D.C., and that if Congress doesn’t do it, and if the Regime won’t back down, then we’re all just screwed.
But people forget the 9th Amendment to the United States Constitution, which states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And then there is that pesky 10th Amendment, which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Much of the discussion of checking the abuses of the Regime is not taking place in Washington–its taking place in state capitals of both blue and red states. The notion is this–Congress can pass whatever laws it wants, and the Regime can do or not do what it wants, but the state legislatures of the states, respectively, are a valid check on abuse of natural rights. Thus, Congress can create the FISA court, but a state can refuse to do business with any corporation which agrees to comply with an unconstitutional court. Thus, a state could very well protect its citizens by saying to Verizon, “no contracts with the state of ___ without a pledge not to comply with the FISA Court warrants…” There are other things a state can do, and it is worth while to check out Daniel A. Farber’s book Retained by the People for a more thorough discussion. There is already some movement afoot in California and Texas to determine what the states can do to protect their own citizens, and it will be interesting to watch the debate unfold.
Remember 1861? I wonder if the Regime is ready to send troops to California to enforce the right to issue FISA warrants?