Wiretapping's true danger

It's probably true that ordinary citizens uninvolved in political activism have little reason to fear being spied on, just as most Americans seldom need to invoke their 1st Amendment right to freedom of speech. But we understand that the 1st Amendment serves a dual role: It protects the private right to speak your mind, but it serves an even more important structural function, ensuring open debate about matters of public importance. You might not care about that first function if you don't plan to say anything controversial. But anyone who lives in a democracy, who is subject to its laws and affected by its policies, ought to care about the second.

Harvard University legal scholar William Stuntz has argued that the framers of the Constitution viewed the 4th Amendment as a mechanism for protecting political dissent. In England, agents of the crown had ransacked the homes of pamphleteers critical of the king -- something the founders resolved that the American system would not countenance.

In that light, the security-versus-privacy framing of the contemporary FISA debate seems oddly incomplete. Your personal phone calls and e-mails may be of limited interest to the spymasters of Langley and Ft. Meade. But if you think an executive branch unchecked by courts won't turn its "national security" surveillance powers to political ends -- well, it would be a first.