“Aghast” is the word that a United States district judge uses to describe how the author of the Constitution, James Madison, would react to the collection of metadata by the National Security Agency. The judge, Richard Leon, whose court is in the Columbia District, says he “cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast.”

Just for the record, this newspaper is not convinced. It is true that Madison was wary of the arbitrary use of government power. He was able to maintain that vigil even amid the whiff of war. He was the author of, among other things, the Virginia Resolution, which attempted to nullify in the Old Dominion the Alien and Sedition Acts that Congress passed to stifle criticism of the government during the quasi war between America and France that erupted during the last years of the 18th Century. But it’s also true that Madison shrank, as did Jefferson, from the idea that nullification should be taken to the point of breaking up the federal union. The fact is that neither Virginia, nor Kentucky, won their point in any federal court, and it was the election of Jefferson that ended the crisis over those most infamous of laws.

It’s also true that Madison was the author of the Constitution and played a key role in the Congress in crafting the first ten amendments, which became the Bill of Rights, including the Fourth Amendment. But Madison’s own proposed wording of this towering amendment was more lax than that finally enacted. His draft, Tracey Maclin of Boston University has pointed out, was “aimed only at improper warrants.” It said that the rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures “shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.”

The final and stronger language — with the famous phrase “no Warrants shall issue, but upon probable cause” — resulted from maneuvering by Egbert Benson, a congressman from New York. What Professor Maclin takes from the episode is that there is “good reason to believe that the precise language of the Fourth Amendment was not particularly important to the founding fathers.” This may be because while the Founders were punctilious about the language of the Constitution, and argued about it back and forth, they were no peck sniffs. They were practical men operating in the real world. Here is Madison in 1788, writing to Jefferson in respect of the Rights Bill:

“I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public; and after repeated violations in extraordinary cases, they will lose even their ordinary efficacy. Should a Rebellion or insurrection alarm the people as well as the Government, and a suspension of the Hab. corp. be dictated by the alarm, no written prohibitions on earth would prevent the measure. Should an army in time of peace be gradually established in our neighbourhood by Britn. or Spain, declarations on paper would have as little effect in preventing a standing force for the public safety. The best security agst. these evils is to remove the pretext for them.”

So we’re not so sure that Madison would have been aghast at the collection by the NSA of metadata in a time of war. What Madison would have been aghast at is a conspiracy of religious fanatics, conducting their plots over our telephone wires and airwaves and driving two gigantic airliners into a tower of innocent Americans and attempting to fly another into the very Congress of the United States in which Madison served. That would have made Madison aghast. We can imagine that he would warn Judge Leon against assuming that government is always the danger. “It is a melancholy reflection,” he wrote to Jefferson at one point, “that liberty should be equally exposed to danger whether the Government have too much or too little power, and that the line which divides these extremes should be so inaccurately defined by experience.” Hence the reasonableness doctrine and the importance of what Justice Frankfurter once called the “test of reason which makes a search reasonable.”