There’s been a lot of virtual ink spilled on the subject of Judge Taylor’s decision on the (il)legality of the Bush administration’s warrantless wiretapping. For a discussion of fine legal points you’ll have to go elsewhere, but the view I’d like to associate myself with is expressed by historian David Kaiser at HIstory Unfolding.
In the Constitution and the Bill of Rights, the Founding Fathers set forth a vision of a new form of government and gave their descendants the best tools that they could to preserve it. Their work reflected their own painful experiences. Until the 1770s, they had believed that they lived under the most perfect form of government yet devised, the unwritten English constitution, which appeared to guarantee them a series of critical rights. As it turned out, however, that constitution had not prevented George III from imposing tyranny over the United States. Thus, in 1787 when they came together to write the constitution, they had learned the critical lesson that any system could conceivably degenerate into tyranny. That was the point of the correspondence between Jefferson and Madison the next year, which I have already quoted in an earlier post (of December 25, 2005), which began when Jefferson complained of the absence of a Bill of Rights. Defending the omission, Madison explained, first, that he had feared that it would be difficult to get all the necessary rights improved, and secondly, with or without such a bill, a government in times of crisis would always find some way to violate it. Jefferson replied wisely that while Madison was not wrong, the existence of a Bill of Rights would make it harder for a government to trample upon them during a crisis and easier to restore them when it was over. No wiser prediction, I venture to say, ever came from the hand of that remarkable man.