The right to privacy is facing its gravest challenges in Congress and the Supreme Court since colonial days, writes Andrew P. Napolitano.
President Donald Trump at a Turning Point USA event at Dream City Church in Phoenix on April 17. (White House /Daniel Torok)
The Fourth Amendment protects all persons from warrantless government searches and seizures of their persons, houses, papers and effects.
It requires that warrants be supported by probable cause of crime and specifically describe the place to be searched and the persons or things to be seized.
Last week, for the first time in the modern era, the U.S. government argued to the Supreme Court of the United States that the Fourth Amendment to the Constitution did not outlaw general warrants.
General warrants were issued in the colonial era by a secret court in London. They were not based on probable cause of crime or even on articulable suspicion about a potential defendant. They did not identify a target or state what crime was being investigated.
Rather, general warrants were based on governmental need; a meaningless standard as whatever the government wants it will tell a court it needs. The warrants authorized the bearer of the warrant to search wherever he wished and seize whatever he found.
The stated motivation for the general warrants was the British government’s enforcement of the Stamp Act. That legislation required all colonists to have stamps affixed to all papers, books and newspapers in their possession. The enforcement of the Stamp Act was the government’s fig leaf for spying.
We know that the true reason for the Stamp Act was to conduct surreptitious searches for revolutionary materials. We know this because during the one-year existence of the Stamp Act — 1765 — a group of enterprising students at the College of New Jersey, now known as Princeton University, calculated that more revenue was spent to enforce the act than was collected by the sale of the stamps.
Historians believe that the use of general warrants for the enforcement of the Stamp Act pushed many colonists into the independence camp 10 years later in 1775.
The use of general warrants also motivated James Madison and his colleagues in 1791 to craft the Fourth Amendment whose specificity requirement “particularly describing the place to be searched and the persons or things to be seized” poignantly did away with search where you wish and seize whatever you find.
Until now.
Renewed Threat of General Warrants
A colored version of “The Repeal”. – or “The Funeral Procession of Miss Americ-Stamp,” a famous 1760s political cartoon depicting the repeal of the Stamp Act 1765. George Grenville, whose ministry passed the act, carries a coffin representing the act, with other notable politicians in the funeral train. (Unknown author/ Royal Museums Greenwich/Wikimedia Commons/ Public Domain)
Now, in one week on Capitol Hill, the right to privacy is facing its gravest challenges in Congress and the Supreme Court since colonial days.
Congress will wrestle with Section 702 of the Foreign Intelligence Surveillance Act, which expires in just days, and the court will hear a claim that general warrants are still viable.
Sec. 702 permits warrantless surveillance on Americans by permitting federal agents to use software that allows them to conduct surveillance of all fiber-optic means of communication — mobile phones, message texting, emails — based on the lawful communications of some Americans to foreign persons, and then their subsequent lawful communications to other Americans.
The “other Americans” can include all 340 million of us.
Theoretically, the data gathered from these warrantless searches cannot be used for criminal prosecutions, since even the feds who do this spying have told members of Congress that they recognize the need for search warrants to access the content of the data.
There are at least two reasons that no one should believe what the feds have said.
The first is the feds lie. In 2023, they accessed the content of the data thousands of times without warrants.
The second reason is that James Madison and the Fourth Amendment’s ratifiers did not believe the government would restrain itself, hence the specificity requirement.
As if all this were not enough to keep those of us who monitor constitutional fidelity awake at night, this week the Trump administration actually told the court that it should be able to use general warrants if the target has failed to inform his service provider of his wish for privacy.
Okello Chatrie was convicted of bank robbery when the feds persuaded a state judge to sign a search warrant for Google records that failed to identify a target, failed to articulate a crime and failed to specify what the government sought.
The warrant was for the ping records — the records of cellphones showing their location — of all cellphones in the vicinity of a bank that had been robbed on the day and at the time of the robbery.
Then the feds persuaded another judge to sign another general warrant that ordered Google to unmask the identity of the owner/users of all those cellphones. This led them to several homes that the feds persuaded another judge to authorize them to raid.
All three of these warrants were in direct violation of the Fourth Amendment by failing to describe particularly the place to be searched or the persons or things to be seized.
At trial before one of these constitutionally challenged judges, the defendant Chatrie was convicted on the basis of the Google pings and the loot found in his home.
The government is patting itself on the back. Yet, its agents and prosecutors took an oath to uphold the Fourth Amendment; just as the government’s domestic spies have done; just as judges do.
Does anyone in the government take the Constitution seriously? If it means what it says — as the late Justice Antonin Scalia argued literally thousands of times — then why does the government evade it?
The Constitution is intended to be an obstacle to the government.
Its principal value judgment is that the individual is sovereign, not the government; and the government can only do what the governed have affirmatively consented to allow it to do.
And the governed have not consented to general warrants.
Justice Scalia recognized that the Fourth Amendment protects more than pings and loot. He knew it protects beliefs, thoughts, sensations and emotions when he famously wrote that “there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.”
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit here.
Published by permission of the author.
COPYRIGHT 2026 ANDREW P. NAPOLITANO
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The views expressed are solely those of the author and may or may not reflect those of Consortium News.
When the president openly solicited and accepted multi-million dollar bribes I knew the constitution was a dead duck.
But…..but…..but…..Ronald Reagan!!!! 9-11!!!!!!!!
Bear in mind that a new constitution with a powerful central government was the new elite’s reaction to the armed uprising in Massachusetts the year before of Continental Army veterans who lost patience waiting for the freedom (and the back wages) they had fought for. Boston merchants financed an army of 1,500 mercenaries to suppress them. From Virginia George Washington commented, “negotiation, sir, is not government.”
The background of the Fourth Amendment lies in the Writs of Assistance, or search warrants, issued by the English Board of Trade. Smuggling was rampant in the largely lawless colonies. Americans evaded customs duties so blatantly that writs were issued to empower local authorities to enter businesses and private homes to ferret out the lawbreakers. The leading attorney spokesman against the writs, James Otis, framed his objection in the weak argument that the writs were illegal because they did not describe the suspected contraband in enough detail.
Parliament’s repeal of the Stamp Act rather contradicts the legend of its tyranny. Colonial business interests were well represented in Parliament by a small army of paid lobbyists, including Ben Franklin. The dispute was largely over the cost of colonial defense, which Americans did not feel they should pay after British forces ended the French threat in Canada.
The Constitution is intended to be an obstacle to the government.” Judge Andrew Napolitano.
………………..… An “obstacle;” hence, the work-around, Executive Orders!!!
“What is the constitutional basis of executive orders? How far can a president go before crossing the line into unconstitutional overreach? And what historical precedents define the scope of this power?” hXXps://usconstitution.net/constitutional-basis-of-executive-orders/
…. “The executive order came into use before 1850, but the current numbering system goes back only to the administration of President Abraham Lincoln. One of the earliest executive orders still in force (as amended) is Executive Order 9, issued January 17, 1873:
……“To [CURB] abuses of power by individuals who concurrently held State & National political offices”. President Ulysses S. Grant.
“It received considerable publicity when it was modified by Executive Order 4439 issued May 8, 1926, by Pres. Calvin Coolidge for the purpose of aiding Prohibition enforcement by allowing the same persons to be simultaneously state and federal enforcement officers.”
“The evolving role of executive orders in governance” began a long f/time ago:
1) Franklin D. Roosevelt issued more executive orders than any other president – 3,728. He is also the only president to average more than 300 per year.
2) William Henry Harrison is the only president to have never issued an executive order.
3) John Adams, Madison, and Monroe issued the fewest executive orders while serving at least one full term – one.
4) Ulysses S. Grant was the first president to issue more than 100 executive orders.
5) Theodore Roosevelt was the first president to issue more than 1,000 executive orders.
“The Constitution is intended to be an obstacle to the government.” Judge Andrew Napolitano.
Imo, the US Constitution is riddled w/bullet holes, bleeding profusely, on life support, for f/ever!!! An “obstacle”; hence, the work-around, Executive Orders.*“In 2025, Donald J. Trump signed 225 Executive orders (from EO 14147 through EO 14371). Fm January 2017-January 2021, Trump’s first term, he signed a total of 220 executive orders. As of January 2025, 72 of them (33%) have been revoked, many by his successor, Joe Biden.
…..“Does anyone in the government take the Constitution seriously?” NO.
* January 31, 2017. “Whatever kind of president Trump chooses to be, he now has the power to completely alter the landscape of this country for good or for ill. He has this power because every successive occupant of the Oval Office has been allowed to expand the reach and power of the presidency through the use of executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements that can be activated by any sitting president.”
…“All of the imperial powers amassed by Barack Obama and George W. Bush”: 1) to kill American citizens without due process, 2) to detain suspects indefinitely, 3) to strip Americans of their citizenship rights, 4) to carry out mass surveillance on Americans without probable cause, 5) to suspend laws during wartime, 6) to disregard laws with which he might disagree, 7) to conduct secret wars, 8) and convene secret courts, 9) to sanction torture, 10) to sidestep the legislatures and courts with executive orders and signing statements, 11) to direct the military to operate beyond the reach of the law, 12) to act as a dictator and a tyrant, above the law and beyond any real accountability—have been inherited by Donald Trump.”
“Those of us who saw this eventuality coming have been warning for years about the growing danger of the Executive Branch with its presidential toolbox of terror that could be used—and abused—by future presidents. Our warnings went largely unheeded”. John W. Whitehead, Constitutional Attorney, Author, Founder & President of The Rutherford Institute.
* January 31, 2017: hXXps://www.rutherford.org/publications_resources/john_whiteheads_commentary/rule_by_brute_force_the_true_nature_of_government
* Listed @ hXXps://www.federalregister.gov/presidential-documents/executive-orders/donald-trump/2025
Apparently CNN and the New York Times – as well as an increasing number of other American media/journalism organizations – have recognized the elephant-in-the-room-sized problem and consulted members of the psychology/mental health profession for serious discussions about Donald Trump’s clearly-deteriorating mental condition, notably evident in Trump’s many pathetic, incessant, manic (Mania: Violent derangement of mind; madness; insanity. [American Heritage Dictionary of the English Language]) and extremely-disturbing Truth Social postings.
Hi, Jerry,
TY! Not for nothin’, Jerry; but, imo, neither CNN or The NYT ‘hold a candle’ to you, CN’s Readership and/or CN, i.e., *“Back in 2017, twenty-seven [27] psychiatrists and mental health professionals broke their profession’s long standing ‘Goldwater rule’ against diagnosing public figures from afar, publishing the book, “The Dangerous Case of Donald Trump”.…..“Nine (9) years” later, “that warning is no longer prophecy, it is the reality.”
Hear! Hear! Once again, “Mayday! Mayday! Mayday!” Trump’s-Vance’s, Inc.,WH of Voodoo’s $atanic cult is a life-threatening, International, Emergency. No One Is Safe!
NEEDED. WANTED. OVER-DUE. IMO: “the most” [repugnant] head of the snake’, “in the world,” POTUS, needs to be removed from office by the most repugnant among him, Vance, Rubio, Hegseth, Israel. The cards are stacked against POTUS. He indicts himself every day!!! Indeed, *“Before the World Goes Dark”, Vance, Rubio, Hegseth, Israel “must” reduce the risk by serving up the 25th Amendment b/c Trump’s beyond f/“under water!”
….Plummeting polls! Trajectory straight f/downward!!! “Vote like your life depends on it!”
It’s either them, Republicans, Vance, Rubio, Hegseth, up for reelection or f/losers like him, DJ “bloody, f/orange bone $pur” Trump who has no boundaries, no morals, no self-respect; AND, IMO, there’s “No Love” for Trump-Vance, Inc.
…..But, “they” Vance, Rubio, Hegseth, got the power to STOP Trump! *“He’s a deranged, dangerous, unstable, lethal, ignorant, monomaniacal, he knows more than everybody, he’s surrounded by “yes” people,” [POTUS]. Ralph Nader.
W/o a doubt, in the cards, “Operation Dump Trump” i.e., “Mr. Trump, you’re Fired!”
TY, Jerry Alatalo. “Keep It Lit!”
*”Back in 2017” @ Comments @ hxxps://consortiumnews.com/2026/04/23/military-disasters-the-end-of-empire/
…..*Middle East Monitor – April 23, 2026 @ hxxps://middleeastmonitor.world/
…..*The Mandate to Speak: “Before the World Goes Dark” Dr. Sahar Huneidi.
* “Fighting Back Against Trump’s Regime” Chris Hedges & Ralph Nader @ hxxps://consortiumnews.com/2025/10/01/hedges-report-fighting-back-against-trumps-regime/ (October 1, 2025, Chris Hedges & Ralph Nader).
There are at least two reasons that no one should believe what the feds have said.
The first is the feds lie. In 2023, they accessed the content of the data thousands of times without warrants.
The second reason is that James Madison and the Fourth Amendment’s ratifiers did not believe the government would restrain itself, hence the specificity requirement.
As if all this were not enough to keep those of us who monitor constitutional fidelity awake at night, this week the Trump administration actually told the court that it should be able to use general warrants if the target has failed to inform his service provider of his wish for privacy.
*
To make the matter perfectly clear:
The Fourth Amendment to the United States Constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Judge is quite right. I disagree with some of his politics, but he knows the Constitution backwards and forwards. Most Americans have never read the Constitution. I have and keep a copy of it on my desk.