It seems each day offers new insights into the scope of NSA spying.
We know they look at our phone records. We know they look at our emails. We know they poke around in our social media worlds. We know they spy on our “allies.”
And that’s just what we know. What about what we don’t know?
Stopping the mammoth spy agency seems impossible. Congress shows no inclination to reel it in. The president feigns ignorance and outrage, but doesn’t seem any more inclined to act. Federal courts almost always side with federal power when the government screams, “National security!” loud enough.
So, what do we do? Do we limit ourselves to marches and protests? Do we beg and plead, hoping the feds will relent and dismantle the spy agency?
It won’t happen. We must act.
Fortunately, we have a blueprint.
James Madison laid out the plan in Federalist 46. He said when the federal government commits an unwarrantable act, “the means of opposition are powerful and at hand.” He went on to explain that state and local governments can stand in the way of federal exercises of unconstitutional power. How? “Refusal to cooperate with officers of the Union.”
Nothing in the Constitution says the states have to cooperate with the federal government. In fact, at least four Supreme Court opinions affirm the federal government cannot commandeer the states to do its bidding.
The majority opinion in Printz v. United States (1997) brought together cases dating back to 1842 and emphatically held that the federal government cannot force state cooperation.
We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-bycase weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.
This fact gives Americans a powerful tool to protect their basic privacy rights. If state and local governments simply refuse to cooperate with the NSA, we can drastically impede its violations of the Fourth Amendment.
This tactic works. Northern states proved it in the years leading up to the Civil War.
Northern abolitionists embarked on a multi-state, multi-year campaign to nullify the Fugitive Slave Act of 1850. This disgusting federal law denied due process to black people accused as fugitive slaves. Essentially, a white man could drag a black person south into bondage on his word. The accused wasn’t even allowed to provide testimony or evidence in his own defense. The act also outlawed assisting fugitive slaves. A simple kind act like giving a woman and her children bread could land a person in federal prison. Even worse, the act also compelled northern citizens to serve as slave catchers when recruited by federal marshals. There was no provision for conscientious objectors.
Northern states responded by passing personal liberty laws designed to thwart execution of the Fugitive Slave Act. For instance, the Michigan legislature approved a law in 1855 that guaranteed trial by jury and prohibited the use of state or local jails for holding accused fugitive slaves. The Massachusetts personal liberty law prohibited any state officer from serving on a fugitive slave commission, making it an impeachable offense. It also provided for disbarment of attorneys assisting in fugitive slave rendition. Later personal liberty laws ratcheted things up another notch. Vermont passed an act in 1858 that essentially declared any black person within its borders free and subjected slave catchers to kidnapping charges.
These efforts proved so successful, several southern states cited northern nullification of the fugitive slave acts in their declaration of causes for secession.
A broad coalition of grassroots activists plan to take this blueprint and stop unconstitutional NSA spying.
In the same way the federal government depended on states to enforce the fugitive slave acts, it depends on state support for the NSA. And in the same way state refusal to cooperate with the fugitive slave acts thwarted enforcement, localized efforts can impede and eventually stop NSA spying.
States can prohibit their agencies, or local agencies within their jurisdiction, from providing any material support to the NSA. Take Utah for example. The data collection center there uses 1.7 million gallons of water per day. A subdivision of the state of Utah provides that water. Utah can turn it off.
States can also make information unconstitutionally gathered by the NSA and shared with law enforcement inadmissible in state court. State legislatures can defund universities serving as NSA research facilities or recruiting grounds. And states can make corporations doing business with the NSA ineligible for state contracts.
We have the opportunity to walk in the footsteps of northern abolitionists and face down unjust and unconstitutional power.