Spying and the separation of powers

  • 17 January 2019
  • msell

As a follow-up to our piece on federal spying on journalists and political opponents, we refer you to this item by Fourth Amendment law expert mark Fitzgibbons, which puts the practice into a larger constitutional context:

The concept of spying or otherwise using search powers to compromise Americans and government officials is nothing new. In her brilliant law review article, "The Original Fourth Amendment," Georgetown University Law professor Laura Donohue writes:

"The Founding generation voiced concerns about the harms that could ensue from giving the government access to information and thus providing officials with the power to head off political or religious opposition. Information obtained could be used to embarrass citizens or to harm their relationships with others. Even when innocent in itself, information could be combined to make it look as though an individual were engaged in illegal activity. Structural harms could also follow, with the targeting of the other branches' personnel, or of state and local leaders, undermining separation of powers and federalism."

The Founders' purposes for the Fourth Amendment, of course, were not merely concerns about compromising public officials in ways that harm the separation of powers. They were very familiar with attempts by the English Crown to invade and search the private papers of those who wrote and published criticisms of the government and public officials. The Fourth Amendment, you see, provides a shield for other liberties of We the People.

There's much more at the link, including a section on how investigative journalist Sharyl Attkisson is suing the federal government over its spying on her work.

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