Why conservatives should oppose the PATRIOT act

In a previous post, I showed why all people who love the Constitution should oppose Obamacare’s attempt to use the commerce clause to justify mandating economic inactivity. Many people saw this as a partisan issue, and indeed it is mostly the left and Democrats who find common cause in defending Obamacare.

In this post, I will appeal primarily to Republicans and conservatives to take another look at the Constitution and re-consider support for the PATRIOT Act. I hope we will see less partisanship on this issue.

Let us start by considering the 4th amendment. Keep in mind that it was inspired by a government (the British) not respecting the private property rights of American colonists. Drawing on 17th and 18th century natural law rights, the colonists felt that their home was their castle and that the government had no right to search their homes unless the government needed to protect somebody from imminent danger. I would like to remind readers that this desire to protect your home from unreasonable search and seizures is supported by inherent property rights. If your property belongs to the state or the community, you don’t have any property rights. Instead, if it is yours, then the purpose of the government should be to protect, not interfere with, your property rights.

This idea goes all the way back to English law from at least 1604, when Sir Edward Coke, in Semayne’s case, famously stated: “The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.” Semayne’s Case acknowledged that the King did not have unlimited authority to intrude on his subjects’ dwellings but recognized that government agents were permitted to conduct searches and seizures under certain conditions when their purpose was lawful and a warrant had been obtained.

One of the primary complaints in the colonies was that British troops used trumped up “general warrants” that allowed them to search whatever and wherever they wanted. Thus the language of the 4th amendment:


The purpose here is to prevent law enforcement from forcing its way into your home, your business and even your car without probable cause. The reason law enforcement must go to a judge first is to place a layer of protection between you and overweaning state power. Notice that the warrant presented to a judge must describe “the place to be search, and the person or things to be seized.”

The purpose of the 4th amendment could not be more clear: government is meant to protect us from bad guys, not to become the bad guy. If law enforcement has no checks on its powers, it becomes too easy for even well-intentioned police to interfere with your property rights in the name of “enforcing the law.”

What does the PATRIOT act say? Well, among many other things, it says that law enforcement officers can write their own search warrants, called National Security Letters. So, going back to the 18th century, imagine British troops, instead of going to a judge, having their captain write up a “general search warrant” that allows them to burst into your home and search at will for whatever they want. No judge needs to be convinced that what is taking place is legal or contained in any way. The FBI did this more than 1000 times between 2002 and 2007.

The PATRIOT Act was approved in the hysteria following 9/11. One thing history has show us is that civil liberties are the first casualties of war hysteria. Think of opponents of WWI being jailed without cause. Consider the Japanese being sent to concentration camps simply because of their heritage in WWII.

Congress is considering extending the PATRIOT act today. I urge all conservatives to oppose this extension until we have a lengthy debate about all of its provisions. Some of them may be necessary. Others are clearly unconstitutional.

To read more on the Patriot Act, I suggest the following links:





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19 thoughts on “Why conservatives should oppose the PATRIOT act

  1. Unfortunately most conservatives worship at the altar of state security. Big government is bad, unless it’s military, CIA, and NSA. The problem is these organizations are destructive to civil and economic freedom, and must be restrained if we are to have a nation based on liberty and prosperity.

  2. Totally agree. Look, we don’t have to embrace conspiracy theories about this. It is basic common sense that big government, not through conspiracies but through inertia and even sometimes good intentions, ends up doing things that hurt innocent citizens. There are literally thousands of people who are convicted of capital crimes and then later, through additional testimony or DNA evidence, found not guilty. The police and courts had good intentions: they were just wrong. By ignoring the Constitution, we are increasing the likelihood that innocent people will be damaged. This should alarm everybody.

  3. The Patriot Act is about political insiders from both parties who are drunken with power and exploiting Americans’ fears of terrorism running rough-shod over the Constitution. I was glad to see certain of the most offensive provisions fail to be extended in the House with the combined efforts of liberals and tea partiers. This was a great instance of finding some small amount of common ground and working together.

  4. I find the allegations of parties “drunken with power” a rather silly explanation of how government works. You obviously were too young to remember how pissed and fearful most Americans were following 9-11. What our public officials did was perfectly logical, given the circumstances, given the demands of the people, as was the creation of DHS. Both were terrible decisions, however. Unfortunately, we may never get rid of either.

  5. That was obviously not meant to be a comment on the general theory of “how government works.” It was specific to this piece of legislation which, as the post noted, gives unprecedented long-term power to the government to intrude into our private lives. And while there may have been a certain amount of fear and paranoia in the days following 9-11 which prompted the passage of the act, basing the passage of the act on emotion and not logic, it has been reauthorized twice since then and will likely be reauthorized again in the coming weeks. I don’t think fear and pissiness are involved in those decisions, and I do attribute it to addiction to and misuse of power.

    And, your assumption about my age is wrong. I was finishing up college at the time. And while I admit to having been far away from NYC on 9-11, I remember very little collective fear at the time, but rather resolve and unity. In any case, we both agree that the act is wrong, so that’s something.

  6. What hysteria.

    The Patriot Act and aggressive intelligence activity have kept Americans safe since 9/11. It is easy to claim that the tools overreach. But, we’ve had repeated real attempts to kill Americans. The Act is a key part of the successful efforts to stop the terrorists.

    Of course there has been some pushing and pulling on specific provisions. But, the overall gist is to provide law enforcement with the tools to deal with criminal activity that hops from place to place and device to device.

    Those who claim this or that is unconstitutional have a remedy — it is called the courts. They have struck various elements and probably will in the future. But, the overall structure has survived scrutiny and should stand. It is needed — and works.

  7. The PATRIOT Act was a vast overreaction to 9/11. It has not made Americans any safer, but it has given government bureaucrats enormous power over our everyday lives. Perry Willis of DownsizeDC.org put it this way, just this morning:

    Terrorists aim to cause fear, and by feeling fear we’ve given them what they want.

    But this also means that we can win the war on terror instantly, simply by NOT being afraid.

    This will defeat the terrorists’ intentions immediately, and completely.

    Our new-found courage will also correspond to reality, because fearing the terrorists is like a cat fearing a mouse. All the terrorists in the world amount to no more than an anemic mosquito on the snout of a whale. The fact is . . .

    There are more murders by American criminals each year than have been committed by terrorists in the past two decades. But we don’t trash the Constitution because of it, as we have in the face of terrorism.

    This statistical truth makes it very clear that Americans have VASTLY OVERREACTED to the terrorist threat, and the politicians have encouraged and exploited our cowardice to expand the power of The State.

    If Ernest Hemingway had the right definition of courage — “grace under pressure” — then our country has shown little grace in the face of not much pressure. To us, the official “War on Terror” amounts to one giant national cringe.

    We can do better, with less effort and more grace.

    There is really only one way to win a war on terrorism. Stop being afraid!

    Achieving this victory does not require large armies, invasions, illegal spying, torture, detention camps, Kangaroo courts, or multi-billion dollar Congressional appropriations. Neither does it require us to shred the Bill of Rights or the Geneva Conventions. All it requires is a little backbone. And a little common sense.

    The minute the first politician proposed the first imposition on the Bill of Rights, the first call to invade Iraq, or the first request for large new bureaucracies to fight the anemic mosquito, the terrorists won, and we lost.

    And they’ve been winning, and we’ve been losing, ever since.

    Can we stop being afraid?

    Can you?

    Here’s what it means to not be afraid . . .

    Here’s what it means to fight a real war on terror . . .

    And here’s what it means to win that war, instantly . . .



    It means that you declare your lack of fear to the politicians, and recruit others to adopt your war winning strategy of not being afraid.

    I feel strongly that we must continue to withdraw our consent for the bad things Congress does until finally they submit to obey the Constitution. If we do NOT do this, then we are sanctioning their crimes through our submissive silence.

  8. The problem, Steve, is that all of the examples the Heritage Foundation presents either (a) were individuals or groups that were completely incompetent and unlikely to have succeeded in their plans, (b) were sting operations that likely wouldn’t have progressed to the point they did without direct government coercion, or (c) would have been caught and charged anyway without the PATRIOT Act.

    Instead, what we DO have is people like Jose Padilla who should be afforded their Constitutional rights to an attorney, a speedy and open trial, and to confront witnesses against him, but instead have been held indefinitely without these rights, despite being American citizens.

    And Willis is still correct: There are tens of thousands of crimes that have caused more death and destruction in American since 9/11, and all the Heritage Foundation can come up with in their attempt to justify shredding the Constitution is 30 examples?



  9. Mike,

    Have you ever seen the 9/11 commission’s testimony on how we have thwarted these attacks? Repeatedly, the Patriot Act provisions have been key.

    The position you are taking is that it is better to put American lives at risk.

    I adamantly disagree.

  10. I am generally persuaded that the Patriot Act goes too far, and should not be renewed. However, I am hardly convinced that it is the end of the world for civil liberties, because the act restricts NSLs and the like to “investigations to protect against international terrorism or clandestine intelligence activities”.

    The reason why this is allowed by the courts is because it falls under the war powers of the executive branch. In any other context, no court is going to admit evidence gathered without a proper search warrant. The Fourth Amendment is real and the courts uphold it, so if you are not closely associated with something the government believes to be foreign intelligence or international terrorism, you don’t have a lot to worry about. The NSA/CIA have been monitoring international communications for decades on similar grounds – no warrant required.

    That said, what I want to know is why it would be an unreasonable burden for the FBI to get FISA warrants in cases like this. It doesn’t sound like an unreasonable burden to me, and that is the main reason I think these provisions should be allowed to expired.

  11. Amen, Geoff.

    We can’t be satisfied that a permanent law is justified by the president’s war powers. The constant state of war we have been in since 9/11 nullifies the effect of any such limitation.

  12. Mark D.: “The Fourth Amendment is real and the courts uphold it, so if you are not closely associated with something the government believes to be foreign intelligence or international terrorism, you don’t have a lot to worry about.”

    We really need to think hard about the phrase “something the government believes.”

  13. DCL, good point.

    Steve, I used to agree with your position, but I began thinking about an out-of-control government using such police powers to oppress its citizens. Doesn’t seem anybody wants that. The PATRIOT act was a nearly 400-page bill that nobody read (just like Obamacare). There are a lot of murky powers given to different groups, and these powers need to be vetted. I agree that different intelligence agencies need to do a better job sharing information, but I can’t get behind FBI agents writing their own warrants. The potential abuse is too alarming.

  14. And, wouldn’t you know it, internal audits turn up thousands of abuses of the PATRIOT Act by FBI agents:


    The Founders would be horrified at how much faith and trust we put in our government. The notion that “if you’re not doing anything wrong then you have nothing to fear” is completely foreign to philosophy of the Founders and the documents that established our nation.

  15. Steve, I grew up in a country where Americans explicitly put their lives at risk so that all of our God-given rights would be protected. You want it the other way around where we gladly give up our rights so that we won’t have to put anyone’s life at risk. I think that this is simply un-American.

  16. (We’ll see if this one actually gets through the spam filter)

    The problem with the Patriot Act is that its provisions aren’t used only to hunt terrorists but are used for any investigation. Were its provisions explicitly limited by statute to the war or terror instead of being used broadly on the so called war on drugs then I might be much more sympathetic. Instead much of it is being used to support a failed policy by making police departments into quasi-military outfits and often trampling on the innocent along the way. I hate drugs but honestly aren’t we well past the point where government policy is hurting innocent Americans more than the drug users are? Keep it illegal but tone down the military approach to enforcement and limit the Patriot Act to the war on terror.

  17. Clark, good point. There are literally hundreds of drug raids every year on innocent people. What a mess.

    Jjohnsen, sorry to see it passed. One small victory: Labrador, the Mormon tea party candidate from Idaho, joined three other Republicans in voting against it.

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