Perhaps another route is available, using an amendment so rarely cited that the American Bar Assn. called it the "runt piglet" of our Constitution. It's the 3rd Amendment, which prohibits the federal government from lodging military personnel in your home.
Many Americans know that the 1st Amendment protects free speech and religious freedom, that the 2nd protects the right to bear arms and that others establish the right to a jury trial and freedom from cruel and unusual punishment. Very few know what the 3rd Amendment does, and understandably so. Since colonial times and the early days of the republic, no one has been routinely forced to feed and house soldiers. There has never been a Supreme Court case primarily based on the 3rd Amendment.
But let's examine whether a case may be made. The National Security Agency is part of the Department of Defense and therefore of our nation's military. By law, the NSA director must be a commissioned military officer, and per its mission statement, the NSA gathers information for military purposes. That's strong evidence that NSA personnel would qualify as soldiers under the 3rd Amendment.
And why did the framers prohibit the government lodging soldiers in private homes? Besides a general distaste for standing armies, quartering was costly for homeowners; it was also an annoyance that completely extinguished a family's sense of privacy and made them feel violated. Sound familiar?
The British could spy on American colonists by keeping soldiers among them. Today, the government can simply read your email. Centuries ago, patriots wrote angry letters about soldiers observing the ladies of the house at various stages of undress. Now, as John Oliver joked, the NSA can just view your intimate selfies.
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