“Freedom has more often been lost in small steps by progressive incrementalism, than it has been by catastrophic upheavals such as violence or war.”
— James Madison (1751-1836)
Last week, the US Circuit Court of Appeals for the Fifth Circuit, which covers Louisiana, Mississippi and Texas, ruled that the problem of undocumented immigrants in the US is so acute and vast and the Fourth Amendment so burdensome and time-consuming that it should cut some constitutional corners. The federal judiciary is supposed to be in the business of protecting the rights of individuals from infringement by Congress or the president or the states. In this case, the court saw fit to allow Immigration and Customs Enforcement, or ICE, to trample the sacred American right to be left alone.
How sacred? Well, James Madison, who was largely responsible for crafting the new Constitution and stewarding it through the states, realized a few years later — after Congress created the First National Bank — that the government would need some restraints. The restraints were cataloged in the Bill of Rights. The Fourth Amendment, which protects privacy, has some of the most precise Madisonian language in the Constitution in order to enshrine privacy and protect it from the government.
To prevent the new government from doing what British soldiers and agents had done to the colonists, the Fourth Amendment prohibits general warrants which had authorized the bearer to search wherever he wished and seize whatever he found. The amendment recognizes that our rights come from our humanity — not from the government — and they are inalienable unless and until we give them up by violating someone else’s natural rights.
This concept of rights as integral to humanity was articulated by Aristotle, refined by Augustine, codified by Aquinas, modernized by John Locke, embraced by the Continental Congress and Thomas Jefferson in the Declaration of Independence, and made part of the Constitution in the Ninth Amendment by Madison and the ratifiers.
The Fourth Amendment requires that if the government wants to search or seize any “persons, houses, papers, (or) effects,” it needs to be investigating a crime and it must have probable cause to believe that in those papers, houses or effects or on those persons is evidence of criminal behavior.
Then the government must present its probable cause to a judge under oath. If the judge agrees that the presentation does constitute probable cause of crime, the judge can sign either a search or an arrest warrant; and the warrant must particularly describe the places to be searched and the persons or things to be seized.
That language and procedure were not crafted to strike a balance between governmental needs and personal privacy, rather they were crafted to recognize the primacy of the individual over the state because of the inalienability of every person’s natural rights. Hence the presumption of innocence, no matter the quantity or gravity of the evidence of guilt.
All of this history, plain meaning of the text and Aristotelian value judgments was cast aside when the Fifth Circuit permitted one ICE agent to authorize another to arrest persons unlawfully in the US — the largest mass arrests in American history — even those here for decades, even those who are the parents and grandparents of US citizens, even those whose unlawful presence is not criminal, even those with valid work permits; and to do so without the presentation of probable cause to a judge and the acquisition of a judicial warrant; all without a hearing and without the opportunity for bail.
But even this decision, as unconstitutional as it is, is limited to the permissive use of administrative warrants — documents in which one ICE agent authorizes another to engage in collective arrests of noncitizens. Last week, we learned that ICE has been issuing administrative warrants to American telecom and internet service providers seeking records of the communications of Americans who have publicly railed against ICE and who have followed its agents and videotaped them on public streets.
The recipients of these warrants should ignore or challenge them. It is none of the government’s business what folks have said about ICE and who videotaped ICE agents in public. These expressive rights — talking, writing, assembling, photographing — are absolutely protected by the First Amendment because free expression is an inalienable natural right integral to our humanity. It is also integral to our democracy.
When the feds conscript private entities to do for them indirectly what the Constitution prohibits them from doing directly, they are engaging in chilling. Chilling is government behavior that gives folks fear or pause before exercising a natural right. Chilling is as unconstitutional as silencing.
ICE has not sought judicial warrants for the telephonic and social media history of its critics because no judge would sign such a warrant, as there is no evidence of any criminal behavior, much less at the level of probable cause. What carrot or stick induced the telecom and internet behemoths to give ICE agents what one of them has authorized another to demand?
This is Madison’s progressive incrementalism writ large. This is the transformation of a simple administrative inquiry about the civil wrongs of immigrants — you weren’t born here, do you have papers? — into a bypass of fundamental constitutional protections for all persons.
What is the value of personal freedom if it comes with strings attached? Strings that permit the very government we have hired to protect our freedoms — in Jefferson’s words, to secure them — slowly and incrementally to bypass the profound protections we have installed to safeguard them.
To paraphrase Justice Louis Brandeis, the greatest dangers to liberty lurk in the insidious encroachment by government agents who lack constitutional understanding and fidelity to first principles — the value judgments about the inalienability of natural rights. Their concept of liberty comes with strings attached. That’s not liberty. It’s subservience.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
COPYRIGHT 2026 ANDREW P. NAPOLITANO
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