Madison Wrote the Warrant Into the Constitution. This Congress Keeps Voting to Skip It.
On June 8, 1789, James Madison rose in the First Congress and introduced the amendments that became the Bill of Rights. Two years later, on December 15, 1791, the states ratified the Fourth Amendment — a direct answer to the British writs of assistance that had let customs agents ransack colonial homes without cause. Its command is one sentence: no warrants shall issue but upon probable cause.
Two hundred thirty-five years later, the 119th Congress spent the first half of 2026 trying to renew Section 702 of the Foreign Intelligence Surveillance Act — the authority under which the FBI ran more than 278,000 improper warrantless searches of Americans’ own communications in a single stretch — without ever attaching the one thing Madison wrote down: a warrant.
The statute lapsed at midnight on June 12, 2026 — the first sunset in its 18-year history. The catch: the surveillance did not stop. A Foreign Intelligence Surveillance Court permission slip keeps the collection running on autopilot through roughly March 2027. And this is emphatically not a one-party story. Leadership in both parties is pushing reauthorization; reformers in both parties want the warrant back. Here is the record.
- 278,000+queriesimproper FBI warrantless searches of Americans' §702 data, 2020–early 2021 — declassified FISC opinion (Fox News / Brennan Center)
- June 122026midnight — the first-ever statutory lapse of Section 702 since it was created in 2008 — NPR / Cato
- March 2027autopilothow long the FISC's March 2026 certifications keep collection running despite the lapse — Cato Institute
- 235yearssince the Fourth Amendment was ratified on Dec. 15, 1791 — constitution.congress.gov
- 39,650pagesof §702 noncompliance records the FBI is withholding in FOIA litigation until Aug. 15, 2026 — DCNF
The Fourth Amendment did not come from an abstract worry about privacy. It came from a specific abuse the colonists had lived under. In 1761, the Boston lawyer James Otis argued for hours against British writs of assistance— general warrants that let customs officers search any house, shop, or ship, at any hour, without naming a place or a cause. A young John Adams sat in the room and later wrote that “then and there the child Independence was born.” The grievance against warrantless, suspicionless search was, quite literally, a founding one.
So when Madison stood in the First Congress on June 8, 1789, the answer he proposed was surgical. On September 25, 1789, the First Congress passed the twelve proposed amendments and sent them to the states; on December 15, 1791, the Fourth was ratified. Its text does not ban searches. It regulates them — by making a neutral magistrate, and probable cause, the price of intruding on a citizen’s papers and effects.
“…no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Fourth Amendment · U.S. Constitution · Ratified December 15, 1791
That is the standard the founders wrote into law on a July-4 timescale — a document the whole country toasts each year. The question this Independence Day is not whether Section 702 collects useful intelligence. Nearly everyone agrees it does. The question is narrower and older than the statute: when a federal agent wants to read an American’s communications, does the Constitution still require him to get a warrant first? For two decades, Congress has answered no.
Section 702, added to FISA by the FISA Amendments Act of 2008, lets the government collect the communications of foreigners located abroad without an individual warrant. That much is not the fight. The fight is over what happens next. When a foreign target emails, calls, or texts an American, that American’s side of the conversation is swept into the government’s database — “incidental” collection, in the term of art. The FBI, NSA, and CIA can then reach back into that trove and search it by the American’s name, email, or phone number— with no warrant. Critics call it the “backdoor search.”
The authority runs on a clock. The 2024 Reforming Intelligence and Securing America Act — RISAA, signed into law as Public Law 118-49 on April 20, 2024 — extended Section 702 for two years, setting a sunset of April 20, 2026. RISAA also expanded the reach of who can be compelled to help the government collect: a change that critics, including Sen. Ron Wyden (D-OR), warned could rope in ordinary service providers. What RISAA did not do was add a warrant requirement for querying Americans. That omission is the whole story.
Also in 2024, Congress expanded the range of who can be forced to comply with Section 702 surveillance orders. Your cable guy could be forced to install spyware on behalf of the government and help them surveil you.
What it targets: foreigners located outside the United States — no individual warrant needed for them.
How Americans get swept in: “incidental” collection when a target communicates with, or about, a U.S. person.
The disputed step: agencies then query that database by an American’s own identifiers — the warrantless “backdoor search.”
The clock: RISAA (P.L. 118-49) set a sunset of April 20, 2026; a short stopgap pushed it to June 12, 2026.
The reformers’ case is not hypothetical. A Foreign Intelligence Surveillance Court opinion, declassified in May 2023, found that the FBI conducted more than 278,000 improper warrantless queries of Section 702 data between 2020 and early 2021. The FISC described the violations as “persistent and widespread.” The Americans caught in those improper searches were not foreign spies. According to the declassified record and the Brennan Center’s tally, they included George Floyd–protest and Black Lives Matter demonstrators, January 6 suspects, crime victims, journalists, and 19,000 donors to a single congressional campaign.
A second declassified opinion revealed the FBI had queried the database for a sitting U.S. senator and a state senator. These were not criminal charges against agents; they were rule violations the surveillance court itself caught. But that is precisely the reformers’ point — the abuses surfaced through an internal audit, not because a judge had to sign off first. Under the pressure of RISAA’s new rules, the FBI’s U.S.-person query count fell sharply, from roughly 3.4 million in 2021 to a small fraction of that by 2024. Reformers say that drop proves the guardrails work and should be codified as a warrant; leadership says the program has already cleaned itself up.
The transparency fight is still live. In June 2026, the Daily Caller News Foundation reported that the FBI is withholding 39,650 pages of Section 702 noncompliance records in FOIA litigation until August 15, 2026 — conveniently after any likely reauthorization vote — while releasing just 128 pages now and touting a “99% compliance rate.” A rate calculated on records the public is not allowed to see is a claim, not a proof.
It is tempting to sort this into a tidy partisan box. The votes will not allow it. When the House passed its no-warrant reauthorization, H.R. 8035, on April 29, 2026, by 235–191, the majority was bipartisan — 42 Democrats voted yes, and 22 Republicans voted no. Two years earlier, the warrant fix itself — an amendment by Rep. Andy Biggs (R-AZ) requiring a warrant for U.S.-person queries — died on a 212–212 tie, with 126 Democrats among the votes that sank it. The coalition to skip the warrant, and the coalition to restore it, each cross the aisle.
Leading the push for reauthorization: Senate Majority Leader John Thune (R-SD), Speaker Mike Johnson (R-LA), House Intelligence Chairman Rick Crawford (R-AR), and Sen. Chuck Grassley (R-IA), who warned that letting 702 lapse is “a gamble we can’t afford to take.” But the loudest institutional defense came from across the aisle: Rep. Jim Himes (D-CT), the ranking Democrat on House Intelligence, said he “cannot in good conscience allow this program to expire.” The June 11 Democratic “no” votes that helped sink a stopgap were a protest over the administration’s intelligence appointments — not a stand for warrants.
“The most successful tool when it comes to keeping people and this country safe.”
Sen. John Thune (R-SD) · Senate Majority Leader, on Section 702
President Donald Trump (R) personifies the whiplash. In April 2024, after FISA authorities were used against his campaign, he posted “KILL FISA” in all capitals. By 2026, his administration had reversed course and backed reauthorization — on the condition that his own voting-law package ride along, a demand Thune publicly called unrealistic. The through-line across both years is the same: at no point did leadership’s preferred vehicle include a warrant requirement.
KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!
Truth Social · verbatim, widely reported (The Hill, Washington Times, Forbes)
Here is the part that surprises even people who follow this closely: the statute is gone, and the surveillance is on. When Section 702’s authority expired at midnight on June 12, 2026, collection did not switch off. The FISA Court had approved the government’s annual certifications in March 2026, and those certifications remain valid for about a year — roughly through March 2027. So for perhaps nine months, the most sweeping foreign-intelligence surveillance program in the country runs without a current act of Congress behind it, purely on a court’s standing permission. The statute lapsed; the machine did not.
Reauthorization, meanwhile, is hostage to a leadership fight that has nothing to do with the Fourth Amendment. Trump conditioned FISA renewal on attaching his SAVE America Act. Layered on top is a personnel crisis at the top of the intelligence community: Tulsi Gabbard resigned as Director of National Intelligence; Trump installed housing regulator Bill Pulte as acting DNI on June 19, nominated Jay Clayton for the permanent post, then canceled Clayton’s confirmation hearing via Truth Social — pushing it to mid-July. In his first weeks, Pulte fired dozens of intelligence officials. The warrant question is not even on the table in these negotiations.
I'm against FISA if it doesn't come with The Save America Act (Full version!) firmly attached to it.
Truth Social · verbatim fragment reported by Axios, June 14, 2026
None of that turmoil changes what a citizen should take from it. Whether the program is authorized by an active statute or coasting on a year-old court certification, the same threshold question remains unanswered: can the government search an American’s communications without a warrant? On June 12, the answer quietly became “yes, and now without even a live vote of Congress to point to.”
The reform the critics want is not exotic. It is the warrant — the same instrument Madison put in the Constitution. A cross-party bloc has spent 2026 demanding it. Sen. Rand Paul (R-KY) is pushing his Fourth Amendment Restoration and Protection Act; Sen. Mike Lee (R-UT), Sen. Ron Wyden (D-OR), and Sen. Dick Durbin (D-IL) have all pressed for query limits. In the House, Rep. Thomas Massie (R-KY), Rep. Andy Biggs (R-AZ), Rep. Warren Davidson (R-OH), and the Freedom Caucus’s June “Don’t Spy on Me” campaign have carried the same flag.
Pass my Fourth Amendment Restoration and Protection Act. Get a warrant. Stop violating Fourth Amendment protections.
Their argument is not that Section 702 is worthless. It is that a genuinely important tool is exactly the kind that needs a neutral check — and that the seven Republicans who joined Democrats to sink the House package on a 47–52 Senate vote (Hawley, Lee, Paul, Schmitt, Scott, Kennedy, and Tuberville) were not soft on security; they were unwilling to renew a warrantless power a court had already caught abusing 278,000 times.
Republicans are in charge because we promised: to Make America Healthy Again. to start No New Wars, to put people above corporations, to put America above foreign countries, to release the Epstein files, to not spy on citizens, to eliminate fraud, what the hell happened?!
Every serious analyst agrees that gathering foreign intelligence is a legitimate function of government. The dispute is over one clause the founders considered non-negotiable. On the anniversary of the country’s independence, the plainest way to state where things stand is this: the machinery that reads Americans’ messages is humming, no statute currently authorizes it, and the fix — a warrant — is the oldest idea in the room.
The First Congress made a neutral magistrate and probable cause the price of searching a citizen’s papers. The 119th Congress spent 2026 trying to renew a program that searches Americans’ communications without either — and, when it could not agree, let the statute lapse while the surveillance kept running under a court’s standing permission.
Both parties’ leadership drove the no-warrant renewal; both parties’ reformers demanded the warrant back. The 212–212 tie, the 42 Democratic yes votes, and the seven Republican no votes make clear this is a Washington failure, not a partisan one.
235 years after Madison wrote the answer down, the only reform on offer is the one the founders already ratified. Congress keeps voting to skip it.
