Our founding document is neither a victory nor a right. It’s a scrap of paper with some basic governing principles, and about as effective as we consider it. You needn’t look far to see that our observance of the Constitution is eroding, either.
Take the Foreign Intelligence Surveillance Court (FISC). This is a court that approves secret warrants against Americans suspected of working for foreign powers. Its 11 members sidestep due process with ex parte proceedings — a judicial process in which it hears only from government attorneys — to determine whether probable cause exists to justify these warrants.
These warrants can include electronic surveillance — such as information about your emails — as well as physical property searches and compelled corporate records. Only a little-used appellate court exclusive to FISC and the Supreme Court itself may overrule its final decisions.
None of this is new. Since its inception in 1978, the court has sat outside most of the norms and practices we celebrate in the Constitution. This includes the separation of powers doctrine.
Unlike every other federal judgeship, which requires a presidential nomination with the advice and consent of the Senate, the surveillance court needs only a unilateral appointment from the sitting Supreme Court chief justice. The only qualification for a court member is that the official simultaneously serve as a federal district judge.
This selection process creates the situation you would probably expect. According to a New York Times analysis, the chief justice’s party affiliation — Republican since the FISC’s creation — ensures that close to two-thirds of all court appointments carry Republican registration cards.
About a third of the court’s judges also once worked for the federal government in some capacity, according to the same analysis.
And the Supreme Court is okay with it. The justices rendered a decision in 2013 that prevents anyone from challenging government surveillance without evidence that the government is secretly spying on them in the first place.
Writing the majority opinion in Clapper v. Amnesty International USA, Justice Samuel Alito said that respondents couldn’t sue the court or the government out of a “fear of surveillance,” calling these measures “speculative” and without standing.
Writing for the American Prospect, Scott Lemieux joined others in criticizing the decision as a Catch-22 that prevented anyone from ever challenging government surveillance in any U.S. court.
Experts say that the FISC effectively serves as a “parallel Supreme Court”— with its own body of law exempting the court from the Fourth Amendment in particular and many other constitutional principles as a result. Such is the court’s insularity and unresponsiveness to common law privacy concerns that it has approved all but 11 of the government’s 33,942 surveillance requests since 1978.a law from 2008 in which lawmakers greatly expanded the government’s grounds for warrant requests. The justices effectively upheld the ability of the government to submit warrant requests for suspects en masse instead of specific individuals.
At least one prominent court critic — a former judge who sat on the Foreign Intelligence Surveillance Court, and then resigned in the wake of news that the Bush administration was conducting mass warrantless surveillance — called the institution a de facto “administrative agency” in need of reform.
Not that the surveillance court is the only exception to our constitutional practices.
The years following September 11 illustrated how far the United States can and often does venture from its founding principles. A Senate report released in 2014 offers a look at interrogation practices that groups like Human Rights Watch usually condemn in more despotic countries.
And then there are the 122 prisoners still held at Guantanamo Bay, unable to secure transfers to other facilities or see some form of due process.
All of this isn’t to say that we’re somehow wrong to celebrate the Constitution. But it should make us weigh whether we’re actually practicing what we preach. As Benjamin Franklin is quoted as saying when asked about what form of government we’d assume, we have a republic — if we can keep it.