Considering the border search exception dates back to legislation by the First Congress in 1789, I don't think they'd have much of a problem with the current interpretation.
What would they think of putting "suspicious" people on a list so the govt could pounce on them the minute they try to cross the border? The purpose of which is to avoid warrant.
It is worth noting two things about the Alien and Sedition Acts.
1. A lot of the Founders really didn't like them. Both Madison and Jefferson spoke out against the laws and argued they were unconstitutional for various reasons.
2. They were allowed to expire around the same time Marbury v. Madison was decided so it isn't clear what the early court thought of the laws.
I agree that Alien & Sedition is a cheap shot (as would be "Lincoln suspended habeas"). It would be interesting for someone to dredge of examples of targeted surveillance and arrest policy from the time of the founders; I bet there's good stuff. You can find metadata surveillance policy in the mid-1800s!
The first is whether the Verizon warrant would have been considered ok to the founders. The answer is an easy "no." We have there essentially a general warrant, something they were quite familiar with and which they put in prohibitions regarding in the 4th Amendment. There is no serious question that the founders would be deeply concerned over the existence of such a warrant and nearly entirely opposed to such.
However the harder question would be whether the Founders would have found the surveillance authorized by the warrant to be problematic even without a warrant or what they would have thought of the warrant. That's the big question and I don't have an answer there. I do think that the programs would almost certainly have been extremely controversialin part at least due to the existence of secret courts and wide-ranging warrants.
If a customs official thought you had contraband in 1789, he could search your person, open boxes on your ship, etc, without a warrant and without probable cause. See U.S. v. Ramsey: http://scholar.google.com/scholar_case?case=6107136132398268... (616-617).
The difference is that this "plenary power" to search at the border has different implications today now that people carry their whole lives around with them on their phones. But that seems to me to be a fault of the people rather than a fault of the law.
...a fault of the people rather than a fault of the law.
An entire philosophy of government, in a nutshell!
You know, it's actually OK to change laws that are bad for the people. For example, three of the four Alien & Sedition Acts were allowed to expire within three years (the fourth is only in force during declared wars), since no one actually liked them.
I hope they would have some pause over the border zone attached to constricted friendly borders (For example, I don't see much reason to consider Michigan a border zone...).
And I do see CPB vehicles dozens of miles from the bridges, apparently working hard enforcing that open border (or buying Subway).
"Michigan" isn't a border zone. You might be referring to what I think is probably an urban myth about the "100 mile Constitution free zone stretching inward from every border", which is not a fact of law (and was in fact explicitly refuted by SCOTUS in the '70s).
