As other legal scholars, most notably Yale law professor Akhil Reed Amar, have pointed out, when the Fourth Amendment was ratified in 1791 as part of the Bill of Rights, government agents were liable for damages in civil tort actions for trespass. The Seventh Amendment preserved the right to have a jury composed of ordinary citizens pass upon the “reasonableness” of any searches or seizures. Because judges were not trusted to jealously guard the liberties of the people, the Fourth Amendment restricted the issuance of warrants to the heightened requirements of “probable cause” and specificity.
Over time, as law-enforcement agents were granted qualified immunity from civil suits, it fell mainly to judges to assess the “reasonableness” of a government search or seizure during a criminal prosecution, thereby undermining the original republican scheme of holding law enforcement accountable to citizen juries.
True, judges have long been approving search warrants by relying on ex parte affidavits from law enforcement. With the NSA’s surveillance program, the Foreign Intelligence Surveillance Court has apparently secretly approved the blanket seizure of data on every American so this “metadata” can later provide the probable cause for a particular search. Such indiscriminate data seizures are the epitome of “unreasonable,” akin to the “general warrants” issued by the Crown to authorize searches of Colonial Americans.