During an appearance last week at Brooklyn Law School, Supreme Court Justice Antonin Scalia hinted that he and his colleagues are likely to soon consider a challenge to the constitutionality of the unwarranted surveillance programs of the National Security Agency (NSA).
Although he apparently believes the Supreme Court will take up the issue, he clearly said he doesn’t think the justices are qualified to settle questions as critical as national security.
"The Supreme Court doesn't know diddly about the nature and extent of the threat," Scalia said. “It's truly stupid that my court is going to be the last word on it,” he added later.
Reading between the lines of Scalia’s other statements made at the law school event, it seems that the court’s longest currently serving justice would find constitutional clearance for the NSA’s dragnet collection of data that many find violates the Fourth Amendment.
A story in the Business Insider indicates that the Reagan appointee’s possible position on the NSA’s activities might include excluding telephone data from the protections provided in the Fourth Amendment. “Conversations are quite different” from the persons, houses, papers, and effects covered by the Bill of Rights, Scalia said as quoted in the article.
Though activists and journalists on both sides of the issue are berating Scalia for their own interpolations on his statements, the fact is that it should matter very little what the Supreme Court believes about the constitutionality of the NSA’s searching and seizing.
The Founding Fathers believed that states should serve as the greatest check on the federal government’s usurpation of powers. And, although some would deny them that right and the 17th Amendment has nearly obliterated their influence over Congress, states are on sound constitutional, legal, and historical footing when they nullify any and every unconstitutional act of the federal government, including unwarranted surveillance.
Simply put, nullification occurs when a state legislature declares that an unconstitutional act of the federal government will not be enforced within the sovereign borders of that state.
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Photo of Supreme Court Justice Antonin Scalia: AP Images