I have been asked by many who have read my initial post “Lessons Not Learned” what is the actual legal path for defending against a government acting unconstitutionally. Not being a lawyer I didn’t have a readily available solid answer. However after becoming slightly obsessed with the topic given relentless criminality by NSA, BLM, and almost daily examples of government overstepping or understepping, I found an incredibly informative paper (http://www.law.harvard.edu/students/orgs/crcl/vol38_2/park.pdf) presented by James J Park (bio included in footnotes of pg.1 of attached paper). One legal path is constitutional tort action. I will provide a summary here but anyone interested in the history and detailed understanding of constitutional tort action should read the paper. More than interesting from a historical context it provides an in depth understanding of the arguments for and against constitutional tort action. By way of understanding the action one further understands the applicability to our current environment whereby government seems to be antipathetic to its oath of upholding the constitution.
Constitutional tort action essentially provides a legal medium and basis for individuals to challenge government action that breach the basic tenets or inaction that fails to protect the basic rights of the constitution, its amendments and the Bill of Rights. It would seem to me that the NSA program, initially legalized under the Patriot Act to protect the American populace against terrorists, has been mutated to the point that one could legitimately use constitutional tort action to challenge the government constitutional disregard. Both the 4th and 14th amendments appear to apply to the current NSA activities in that the surveillance is being done without court orders approving specific and individual surveillance (4th amendment breach) and more generally breaching the 14th amendment (due process clause) of guaranteeing those facing deprivations of life, liberty and property protections of due process.
The limitation as I see it with constitutional tort action is that its remedy is one of monetary recompense. The effectiveness of a monetary penalty is going to be minimal to a federal government that has seemingly endless supplies of money. And so perhaps the penalty is less a deterrent than would be if the remedy was one of criminal prosecution resulting in direct personal liability such as prison time or even dismissal (one could reasonably argue a proactive and conscious breach of the constitution should be considered treason and so tort action should carry the applicable penalty of treason). However, there are certain and definite benefits to even monetary remedies and perhaps most importantly is the verdict defines specific acts of unconstitutionality and so defends us against those acts going forward. James Park does well to describe the various benefits of tort action even based on monetary remedy within the attached paper, and so I leave it to you to familiarize yourself with these via his paper.
The point is that we have been granted absolute rights by the founding fathers and there are legal (amongst other avenues such as protest and revolt) means to defend our constitutional rights specifically against a government that fails to defend them on our behalf. It is up to we the people however to defend these rights. I see the major impediment of we the people grasping the seriousness of what is being taken from us as two fold. First is that our rights are being dismantled slowly and under a guise of being for our own greater good. The second is our own comfortableness. The government ensures that the majority are being made comfortable no matter what the situation. Incredible amounts of money are being disseminated throughout society to ensure the ‘bottom half’ and the top 10% are content and so not incentivized to rock the boat. Anyone who has studied politics through civilization is well aware of leaders understanding that the best way to prevent an uprising is to ensure a basic level of content. This social behaviour to be willing to accept government manifestation was actually described within the Declaration of Independence,
“….all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security…”