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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!


There are a couple of questions.

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.




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