In what I consider to be a blow for liberty and fundamental American principles, but which I imagine some of my more conservative readers may not be pleased with, an Oregon District Court judge has ruled two provisions of the Patriot Act unconstitutional.

In the case of Brandon Mayfield v USA (click HERE to read Court's opinion) Judge Ann Aiken made very strong arguments, returning to the intent of our Founders and our Constitution, ruled that "50 U.S.C. ¡ì¡ì 1804 and 1823, as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution."

These sections of the code allow the Executive Branch (primarily via the FBI) to search or surveil American citizens without what the court ruled to be sufficient probable cause and without warrants.

The judge's concluding paragraphs are so important and powerful that I will quote them at length:

Finally and perhaps most significantly, In re Sealed Case (Ed: a case which the government was trying to use to bolster its position) ignores congressional concern with the appropriate balance between intelligence gathering and criminal law enforcement. It is notable that our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the Bill of Rights. Where these important objectives merge, it is critical that we, as a democratic Nation, pay close attention to traditional Fourth Amendment principles. The Fourth Amendment has served this Nation well for 220 years, through many other perils. Title III, like the Supreme Court's pronouncements in Katz and Berger, recognizes that wiretaps are searches requiring fidelity to the Fourth Amendment.

Moreover, the constitutionally required interplay between Executive action, Judicial decision, and Congressional enactment, has been eliminated by the FISA amendments. Prior to the amendments, the three branches of government operated with thoughtful and deliberate checks and balances - a principle upon which our Nation was founded. These constitutional checks and balances effectively curtail overzealous executive, legislative, or judicial activity regardless of the catalyst for overzealousness. The Constitution contains bedrock principles that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment.

Despite this, the FISCR holds that the Constitution need not control the conduct of criminal surveillance in the United States. In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate. The defendant here is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.

For over 200 years, this Nation has adhered to the rule of law - with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as illadvised. In this regard, the Supreme Court has cautioned:

The price of lawful public dissent must not be a
dread of subjection to an unchecked surveillance
power. Nor must the fear of unauthorized official
eavesdropping deter vigorous citizen dissent and
discussion of Government action in private conversation.
For private dissent, no less than open public
discourse, is essential to our free society.

Not only am I very pleased to see any judge actually rely on the Constitution and our Founders' intent when making a ruling, I am also pleased to see the over-reaching hand of the Executive Branch slapped back as they try to take the liberty which they are sworn to protect. Judge Aiken deserves the thanks and respect of all Americans who believe in the rule of law.