(The Conversation) – About six months ago, Americans’ belief in God hit an all-time low.

According to a 2022 Gallup survey, the percentage of people who believe in God has dropped from 98% in the 1950s to 81% today; among Americans under 30, it is down to an unprecedented 68%.

Up close, the trend looks even more dramatic. Only about half of Americans believe in “God as described in the Bible,” while about a quarter believe in a “higher power or spiritual force,” according to a Pew poll. Just one-third of Generation Z say they believe in God without a doubt.

Congregational membership, too, is at an all-time low. In 2021 Gallup found that, for the first time ever, fewer than half of Americans – 47% – were members of a church, synagogue or mosque.

Via Pixabay.

Yet another crucial measure of institutional religion in the U.S., the percentage of people identifying as religious, is also at a low: About 1 in 5 adults now say they have no religious affiliation, up from 1 in 50 in 1960.

In short, when it comes to three key realms of religious life – belief, behavior and belonging – all are lower than they have ever been in American history.

What’s going on? In my view, it’s clear: secularization.

However, despite these seemingly unambiguous numbers, debate about whether secularization really is happening has persisted. Indeed, for several decades now, many academics have continued to doubt its trajectory, especially in the United States.

‘The sacred shall disappear’

Secularization is the process whereby religiosity weakens or fades in society. Peter Berger, a sociologist of religion, defined it as the process that removes institutionalized religion’s domination over a culture, and a situation where more and more people make sense of their lives without traditional religious interpretations.

NYC Church. File. Via Pixabay.

As Berger noted, one key aspect of secularization is societal: Organized religion loses its overarching public power. Welfare of the poor and sick, for example, is no longer overseen by religious orders, but is largely the responsibility of state bureaucracies.

But secularization is also about families and individuals: Fewer people believe in supernatural claims, attend worship services or follow religious teachings. For instance, more and more Americans are choosing to get married in secular settings, and record low numbers are wanting to have religious funerals.

Secularization in industrializing societies had been anticipated by many European thinkers in the 19th century, including the likes of Emile Durkheim and Max Weber, two of the founders of sociology. Weber spoke of the “disenchantment” of the world: the idea that increasing scientific knowledge would replace supernatural explanations.

For decades afterward, social scientists who study religion took secularization in industrialized societies more or less for granted. Some assumed that religion’s disappearance from many societies was all but certain – such as C. Wright Mills, who proclaimed in 1959 that “the sacred shall disappear altogether except, possibly, in the private realm.”

Not so fast

Not everyone was so sure. In the decades after Mills’ dire prognostication, many sociologists began to voice skepticism about secularization’s inevitability. As they observed developments like the rise of Pentecostalism throughout much of Latin America and the momentum of the religious right in the U.S., debate took off about the extent of secularization, and even whether it was happening at all.

Other critics pointed out that sociologists of secularization tended to focus on wealthy, Western countries with Christian heritages, and that their theories did not always translate well to other settings. Even a question like “Are you religious?” can mean something different, especially in non-monotheistic religions or religions where “belief” is not as central as it is in Christianity.

The most notable critic of secularization was sociologist Rodney Stark, who, in the 1980s, insisted that secularization theory was a sham. Stark was so sure that religion was as strong as ever that he wrote the very idea of secularization ought to be carried off to “the graveyard of failed theories.”

Secularization cannot occur, Stark argued, because religion addresses certain human needs and fears that are fundamental, universal and unchanging. He viewed religions in diverse societies like companies in an economy: If a religion appears anemic, it is only because its “firms” aren’t marketing themselves well enough. Once they improve their outreach, messaging and branding – or if other, more innovative religious entrepreneurs step up – religious life continues as usual, or even increases.

As recently as 2015, Stark wrote that religion in the U.S. has actually strengthened, arguing that Americans simply aren’t responding to pollsters much anymore, and therefore results were unreliable. He also noted that only a small slice of people identify as atheists: fewer than 5% in most nations.

Latest data

In our 2023 book, “Beyond Doubt,” however, religion and secularism scholars Isabella Kasselstrand, Ryan Cragun and I argue that religious faith, participation and identification are unambiguously weaker than they have ever been.

This is not only true in the U.S, but many parts of the world, as seen in surveys of people in countries such as Scotland, South Korea, Chile and Canada.

Our book lays out data on declines in religion in areas that have traditionally been home to many different faiths. In 2013, for example, 10% of Libyans and 13% of Tunisians said that they had no religion. By 2019, those numbers had more than doubled. Declines in belief in God are apparent in countries from Denmark and Singapore to Malaysia and Turkey.

But why? In our analysis, the transition from a traditional, rural, nonindustrial society to an urban, industrial or post-industrial society is a key part of the answer – along the lines of the first sociologists’ predictions. As these changes take place, religion is more likely to become unyoked from other aspects of society, such as education and government. Additionally, there is an increase in the amount of religious diversity in a given society, and there tend to be changes in the family, with parents granting their children more freedom regarding religious choices.

In nearly every society that we examined that has experienced these concomitant phenomena, secularization has occurred – often in spades. Of course, compared to most other wealthy countries, the U.S. is quite religious. Fifty-five percent of Americans, for example, say they pray daily, compared to an average of 22% of Europeans.

Still, we argue that the latest numbers regarding religious belief, behavior and belonging in the U.S. paint a clear portrait of secularization. Beyond the more universal factors, other developments that have been detrimental to religion include a strong reaction against the political power of the religious right, and anger at the Catholic Church’s child sex abuse scandal.

The consequences of religion’s weakening are unclear. But while its meaning for America remains an open question, whether secularization is happening is not.

Phil Zuckerman, Professor of Sociology and Secular Studies, Pitzer College

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The voting patterns of religious groups in the U.S. have been scrutinized since the presidential election for evidence of shifting allegiances among the faithful. Many have wondered if a boost in Catholic support was behind Biden’s win or if a dip in support among evangelicals helped doom Trump.

But much less attention has been paid to one of the largest growing demographics among the U.S. electorate, one that has increased from around 5% of Americans to over 23% in the last 50 years: “Nones” – that is, the nonreligious.

I am a scholar of secularism in the U.S., and my focus is on the social and cultural presence of secular people – nonreligious people such as atheists, agnostics, humanists, freethinkers and those who simply don’t identify with any religion. They are an increasingly significant presence in American society, one which inevitably spills into the political arena.

In this last election, the emerging influence of secular voters was felt not only at the presidential level, but also on many down-ballot issues.

The new ‘values voters’

For years, both scholars and pundits have referred to the political impact of “values voters” in America. What that designation generally refers to are religious men and women whose scripturally based values coagulate around issues such as opposing marriage equality and women’s reproductive autonomy.

But dubbing such religious voters as “values voters” is a real semantic bamboozle. While it is true that many religious Americans maintain certain values that motivate their voting behavior, it is also very much the case that secular Americans also maintain their own strongly held values. My research suggests they vote on these values with just as much motivation as the religious.

Sex education

This played out in November in a number of ballot initiatives that have flown under the national media radar.

Voters in Washington state, for example, passed Referendum 90, which requires that students receive sex education in all public schools. This was the first time that such a measure was ever on a state ballot, and it passed with ease – thanks, in part, to the significant number of nonreligious voters in the Pacific Northwest.

The fact is, Washington is one of the least religious states in the union. Well over a third of all Washingtonians do not affiliate with any religion, more than a third never pray and almost 40% never attend religious services.

The referendum’s passing was helped by the fact that nonreligious adults tend to value comprehensive sex education. Numerous studies have found that secular Americans are significantly more likely to support comprehensive sex education in school. In his research, sociologist Mark Regnerus found that secular parents were generally much more comfortable – and more likely – to have open and frank conversations with their children about safe sex than religious parents.

Drugs policy

Meanwhile, voters in Oregon – another Pacific Northwestern state that contains one of the most secular populations in the country – passed Measure 110, the first ever statewide law to decriminalize the possession and personal use of drugs.

This aligns with research showing that nonreligious Americans are much more likely to support the decriminalization of drugs than their religious peers. For instance, a 2016 study from Christian polling firm Barna found that 66% of evangelicals believe that all drugs should be illegal as did 43% of other Christians, but only 17% of Americans with no religious faith held such a view.

Science at the ballot box

Secular people are generally more trusting of scientific empiricism, and various studies have shown that the nonreligious are more likely to accept the evidence behind human-generated climate change. This translates to support for politicians and policies that take climate change seriously.

It may also have factored in to the success of a November ballot measure in Denver, Colorado, to fund programs that eliminate greenhouse gases, fight air pollution and actively adapt to climate change. The ballot passed with over 62% of the vote – and it is of note that Denver is one of the most secular cities in the nation.

Meanwhile voters in California – another area of relative secularity – passed Proposition 14 supporting the funding of stem cell research, the state being one of only a handful that has a publicly funded program. Pew studies have repeatedly found that secular Americans are far more likely than religious Americans to support stem cell research.

Values versus values

On issues that the religious right has held some sway in recent years, there is evidence of a counterbalance among secular “value voters.”

For example, while the religious have been more likely to oppose same-sex marriage, secular Americans are more likely to support it, and by significant margins. A recent Pew study found that 79% of secular Americans are supportive, compared to 66% of white mainline Protestants, 61% of Catholics, 44% of Black Protestants and 29% of white evangelicals.

There are many additional values that are prominent among secular Americans. For example, the U.S. Secular Survey of 2020 – the largest survey of nonreligious Americans ever conducted, with nearly 34,000 participants – found strong support for safeguarding the separation of church and state.

Other studies have found that secular Americans strongly support women’s reproductive rights, women working in the paid labor force, the DACA program, death with dignity and opposition to the death penalty.

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Secular surge

According to Eastern Illinois University professor Ryan Burge’s data analysis, around 80% of atheists and agnostics and 70% of those who described their religion as “nothing in particular” voted for Biden.

This may have been decisive. As Professor Burge argues, “it’s completely fair to say that these shifts generated a two percentage-point swing for Biden nationwide. There were five states where the gap between the candidates was less than two percentage points (Georgia, Arizona, Wisconsin, Pennsylvania and North Carolina). Four of those five went for the Biden – and the nones were between 28% and 37% of the population in those key states.”

As this past election has shown, secular values are not only alive and well, but they are more pronounced than ever. It is also noteworthy that more openly nonreligious candidates were elected to public office than ever before. According to an analysis by the atheist author and activist Hemant Mehta, not only did every member of the secular Congressional Freethought Caucus win reelection, but 10 state senators who are openly secular – that is, they have made it publicly known that they are nonreligious – were voted into office, up from seven two years ago. There is now an all-time high of 45 openly secular state representatives nationwide, according to Mehta’s analysis. Every one of them is a Democrat.

Religious voters will certainly continue to vote their values – and for politicians that express similar views. But so, I argue, will secular voters.

Phil Zuckerman, Professor of Sociology and Secular Studies, Pitzer College

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Bonus video added by Informed Comment:

News 1130: “Millennials moving away from religion?”

‘The United States is no longer a majority white, Christian country, and that is already beginning to have profound social and political implications. At 45 percent of the population, white Christians are a shrinking demographic—and the backlash from many members of the group against the increasing diversification of America has been swift and bitter. “People fight like that when they are losing a sense of place, a sense of belonging, and a sense of the country that they understand and love,” says Robert P. Jones, the author of ‘The End of White Christian America,’ in this animated interview. “How do they reengage in public life when they can’t be the majority?”’

The Atlantic: “We’ve Reached the End of White Christian America”

Reporter Gianna Toboni gives a brief report on the attitude towards Muslims and Islam following the attacks in Paris.

Vice: “Gianna Toboni’s Cycle of Terror Debrief (Vice on HBO)”

After the tragic Charlie Hebdo massacre, it seems that Europe has several options regarding its policies on Islam and Muslims. Among them, the easiest option is to maximize security precautions in order to exercise absolute control over Muslims

If 9/11 was the start of a moral panic in the West that the “clash of civilizations” was now underway, the tragic killings at Charlie Hebdo may have driven this panic to a new high. After all, Hebdo has a unique symbolic significance. Its satirical anti-clerical journalism represents the most valuable cultural assets of the West – freedom of speech and secularism. Moreover, Hebdo is French, and the French nation historically played a pivotal role, with its bourgeoisie revolution and laicité, in the making of Western civilization. In the eyes of the West then, this was an attack on its very culture by Islamic extremists – perhaps not representative of all Muslims, but still inspired, the West maintains, by teachings of Islam. It certainly didn’t help that some Muslims responded by burning down churches and torching Western nations’ flags, further affirming the Western depiction of Islam as a religion prone to violence and radicalism.

With this affirmation, the question for Europe has come down to how to proceed from here, how to protect not just its public but also its civilization against a heightening global Islamic challenge and a radicalizing immigrant youth threatening Europe from within. Or put briefly, what to do with Islam now?

An impulsive solution is to have “less Islam” in Europe from now on, and to do that, there seem to be two approaches. One is to be rid of Muslims and Islam by stricter immigration and naturalization policies and tougher control on religious freedoms and practice and on political and civil Muslim mobilization. This approach has its fair share of grassroots supports already: The German PEGIDA, for example, has marched post-Hebdo, this time reaching 40,000 protestors, escalating its call to stop the Islamization of Europe and the growth of a parallel Muslim society in their country.

The other approach, one that is advocated by Marine Le Pen, president of France’s far-right Front National, is instead to establish and implement a proper assimilation policy. In other words, it is to effectively secularize Muslims in Europe and, somehow, transform their doctrine so that they can relate to French values and society – that is, so that blasphemy would no longer be punishable by death, that Muslims would be able to laugh at themselves, would internalize women’s rights, self-censure their religion, practice civility and accept moral diversity and tolerance, cherish freedom of speech and engage in global debate rationally and through legitimate channels.

But what if instead the solution were more Islam, rightly understood at least? To cultivate a new brand of Islam, an Islam not in but of Europe, though, one must start with understanding what the original doctrine is. When it comes to blasphemy, for example, what exactly does the Quran tell Muslims to do? What needs to be changed?

Islam forbids drawings of the prophets and their companions, but the Quran does not define a criminal sanction for such an act. Defamation of religion, on the other hand, is certainly not unknown to Muslims and their prophet – nor was it unknown to prophets of Christianity and Judaism.

The prophet was no stranger to satire, either. Indeed, some well-known Quarishi poets would attack Islam and its prophet using hiciv, satirical poems. Muhammad, in response, tasked poets among his companions, most notably, Hassan b. Thabit, to defend Islam by ridiculing their opponents using facts – poets would study the tradition and weaknesses of the opponents to compose their hiciv – and their wit.

How about freedom of speech though? Does Islam allow it or even have a sense of it? Surprisingly, Islam’s stand on freedom of thought and speech seems to be similar to that of the First Amendment. Roughly put, for each, one is given the right to say “this is what I think” without punishment, unless her thought and speech translates into criminal action. This does not excuse vindictive language, which falls outside the Quranic moral imperative to avoid harm and assault on other people, their values and beliefs. Freedom of speech, in other words, must be subject to self-censure, if you are to obey God’s words.

The inadequate understanding of Islam is not unique to Europeans but, more gravely, includes Muslims, most of whom, even among the educated elite, lack comprehensive knowledge about core theological and ethical notions within Islam.

No doubt, Islamism itself is in many ways at fault for this. From the ninth century anti-philosophy currents to 19th century Wahhabism to contemporary Daesh, Islamism has played a major role for “less Islam;” the gradual but consistent loss of religious knowledge in the Muslim Ummah. Islamism has distorted Islam by articulating a grotesque version: highly selected, narrow, monolithic, based on little authority, not reflective of the tradition at its best and richest. The biggest damage Islamism has done to Islam, though, was its rejection of reason and individual reflection in the realm of belief (while, on the contrary, the Quran ascribes an active role for reason and inquiry in faith). What is worse, this simplified version was comically easy to circulate: it made its case persuasively, defined an enemy, reduced religion to few principles and said that it had the solution – though it did not clarify what the question was.

Yet secularists played their part as well. Take Turkey. Early modernizers not only fueled Islamism by oppressing religion, but they also more directly contributed to the decline of Islamic knowledge. Seeing religion as something irrational, but recognizing its utility, the state co-opted religion, creating a version reduced to behavioral aspects, a shallow spirituality and nationalist sentiments. Theology and philosophy of religion were left out both in education and in the overall formal official discourse on religion. This trend has continued: Even for social scientists studying religion, theology is only for imams; studying religion requires only sociology and economy. This type of analysis reduces religion to something epiphenomenal and diverts attention toward the sociological phenomenon of Islamism and its politics and away from Islam itself and its theology.

The task to retrieve “more Islam” is of course quite difficult now for both Turkey and Europe as a whole. It will require structural changes, including establishing new institutions to find the resources within Islam to demolish inadequacies in our understanding of Islam, and backlashes are inevitable. Islamists (and conservatives) will accuse such attempts as heresy, while academics, ones who insist on seeing religion as “always oppressive,” will see such attempts as a false secularization of religion, not a reinstitution of its actual message, thus trapping us back into the religion versus modernity divide.

This also means that Europe and committed secularists will need to rethink their own assumptions about religion, their inability to distinguish between piety and fundamentalism, their insistence on reducing religion to unchanging dogma and their own tendency toward authoritarianism, which creates an equally authoritarian Islamism in its mirror image. This self-reflexivity is what was left out by Hebdo in its critical view of society.

Less Islam will serve the radicals quite well. If Islamism is going to work, it has to get rid of the variety and nuance that existed in Islam and create seemingly monolithic, dogmatic doctrine, fundamentally against the spirit of the Prophet Muhammad’s teachings. Hence, the choice for Europe is not between less Islam or more Islamism, but between more Islam or more Islamism.

In any case, the world now is too complex for secular fundamentalism. That complexity requires us to really understand religious traditions, not just Islam, and by that understanding to challenge the reductive, instrumental view promoted by extremists.

Dr. Neslihan Çevik is Associate fellow at the Institute for Advanced Studies in Culture, University of Virginia, Board member, Post-Colonial Studies Research Center, Üsküdar University

Reprinted with author’s permission from Daily Sabah.
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Related video added by Juan Cole:

Euronews: “Muslim concerns grow over spread of PEGIDA movement in Germany”

The horrific murder of the editor, cartoonists and other staff of the irreverent satirical weekly Charlie Hebdo, along with two policemen, by terrorists in Paris was in my view a strategic strike, aiming at polarizing the French and European public.

The problem for a terrorist group like al-Qaeda is that its recruitment pool is Muslims, but most Muslims are not interested in terrorism. Most Muslims are not even interested in politics, much less political Islam. France is a country of 66 million, of which about 5 million is of Muslim heritage. But in polling, only a third, less than 2 million, say that they are interested in religion. French Muslims may be the most secular Muslim-heritage population in the world (ex-Soviet ethnic Muslims often also have low rates of belief and observance). Many Muslim immigrants in the post-war period to France came as laborers and were not literate people, and their grandchildren are rather distant from Middle Eastern fundamentalism, pursuing urban cosmopolitan culture such as rap and rai. In Paris, where Muslims tend to be better educated and more religious, the vast majority reject violence and say they are loyal to France.

Al-Qaeda wants to mentally colonize French Muslims, but faces a wall of disinterest. But if it can get non-Muslim French to be beastly to ethnic Muslims on the grounds that they are Muslims, it can start creating a common political identity around grievance against discrimination.

This tactic is similar to the one used by Stalinists in the early 20th century. Decades ago I read an account by the philosopher Karl Popper of how he flirted with Marxism for about 6 months in 1919 when he was auditing classes at the University of Vienna. He left the group in disgust when he discovered that they were attempting to use false flag operations to provoke militant confrontations. In one of them police killed 8 socialist youth at Hörlgasse on 15 June 1919. For the unscrupulous among Bolsheviks–who would later be Stalinists– the fact that most students and workers don’t want to overthrow the business class is inconvenient, and so it seemed desirable to some of them to “sharpen the contradictions” between labor and capital.

The operatives who carried out this attack exhibit signs of professional training. They spoke unaccented French, and so certainly know that they are playing into the hands of Marine LePen and the Islamophobic French Right wing. They may have been French, but they appear to have been battle hardened. This horrific murder was not a pious protest against the defamation of a religious icon. It was an attempt to provoke European society into pogroms against French Muslims, at which point al-Qaeda recruitment would suddenly exhibit some successes instead of faltering in the face of lively Beur youth culture (French Arabs playfully call themselves by this anagram term deriving from wordplay involving scrambling of letters). Ironically, there are reports that one of the two policemen they killed was a Muslim.

Al-Qaeda in Mesopotamia, then led by Abu Musab al-Zarqawi, deployed this sort of polarization strategy successfully in Iraq, constantly attacking Shiites and their holy symbols, and provoking the ethnic cleansing of a million Sunnis from Baghdad. The polarization proceeded, with the help of various incarnations of Daesh (Arabic for ISIL or ISIS, which descends from al-Qaeda in Mesopotamia). And in the end, the brutal and genocidal strategy worked, such that Daesh was able to encompass all of Sunni Arab Iraq, which had suffered so many Shiite reprisals that they sought the umbrella of the very group that had deliberately and systematically provoked the Shiites.

“Sharpening the contradictions” is the strategy of sociopaths and totalitarians, aimed at unmooring people from their ordinary insouciance and preying on them, mobilizing their energies and wealth for the perverted purposes of a self-styled great leader.

The only effective response to this manipulative strategy (as Grand Ayatollah Ali Sistani tried to tell the Iraqi Shiites a decade ago) is to resist the impulse to blame an entire group for the actions of a few and to refuse to carry out identity-politics reprisals.

For those who require unrelated people to take responsibility for those who claim to be their co-religionists (not a demand ever made of Christians), the al-Azhar Seminary, seat of Sunni Muslim learning and fatwas, condemned the attack, as did the Arab League that comprises 22 Muslim-majority states.

We have a model for response to terrorist provocation and attempts at sharpening the contradictions. It is Norway after Anders Behring Breivik committed mass murder of Norwegian leftists for being soft on Islam. The Norwegian government launched no war on terror. They tried Breivik in court as a common criminal. They remained committed to their admirable modern Norwegian values.

Most of France will also remain committed to French values of the Rights of Man, which they invented. But an insular and hateful minority will take advantage of this deliberately polarizing atrocity to push their own agenda. Europe’s future depends on whether the Marine LePens are allowed to become mainstream. Extremism thrives on other people’s extremism, and is inexorably defeated by tolerance.

Let me conclude by offering my profound condolences to the families, friends and fans of our murdered colleagues at Charlie Hebdo, including Stephane Charbonnier, Bernard Maris, and cartoonists Georges Wolinski Jean Cabut, aka Cabu, and Berbard Verlhac (Tignous)– and all the others. As Charbonnier, known as Charb, said, “I prefer to die standing than to live on my knees.”.

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Related video:

BBC: “Charlie Hebdo: Paris terror attack kills 12”

Here’s a bit of history from another America: the Bill of Rights was designed to protect the people from their government. If the First Amendment’s right to speak out publicly was the people’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now in Post-Constitutional America.

The Fourth Amendment

A response to British King George’s excessive invasions of privacy in colonial America, the Fourth Amendment pulls no punches: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.”

In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as “unreasonable” in our old constitutional world, but no more.

Here, then, are four ways that, in the name of American “security” and according to our government, the Fourth Amendment no longer really applies to our lives.

The Constitutional Borderline

Begin at America’s borders. Most people believe they are “in” the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.

Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the “border search.” The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally “reasonable” simply by virtue of where they take place. It’s a concept with a long history, enumerated by the First Congress in 1789.

Here’s the twist in the present era: the definition of “border” has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.

Those modest exceptions were all part of constitutional America. Today, once reasonable searches at the border have morphed into a vast “Constitution-free zone.” The “border” is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the U.S. population. In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitras — whose work focuses on national security issues in general and Edward Snowden in the particular — knows firsthand. Since 2006, almost every time Poitras has returned to the U.S., her plane has been met by government agents and her laptop and phone examined.

There are multiple similar high-profile cases (including those of a Wikileaks researcher and a Chelsea Manning supporter), but ordinary citizens are hardly exempt. Despite standing in an American airport, a pane of glass away from loved ones, you are not in the U.S. and have no Fourth Amendment rights. How many such airport searches are conducted in the aggregate is unknown. The best information we have comes from a FOIA request by the ACLU. It revealed that, in the 18-month period beginning in October 2008, more than 6,600 people, about half of them U.S. citizens, were subjected to electronic device searches at the border.

Still, reminding us that it’s possible to have a sense of humor on the road to hell, the CBP offers this undoubtedly inadvertent pun at its website: “It is not the intent of CBP to subject travelers to unwarranted scrutiny.” (emphasis added)

Making It All Constitutional In-House

Here’s another example of how definitions have been readjusted to serve the national security state’s overriding needs: the Department of Justice (DOJ) created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants.

Some background: a warrant is court permission to search and seize something. As the Fourth Amendment makes clear, it must be specific: enter Thomas Anderson’s home and look for hacked software. Warrants can only be issued on “probable cause.” The Supreme Court defined probable cause as requiring a high standard of proof, or to quote its words, “a fair probability that contraband or evidence of a crime will be found in a particular place.”

A subpoena on the other hand is nothing more than a government order issued to a citizen or organization to do something, most typically to produce a document. Standards for issuing a subpoena are flexible, as most executive agencies can issue them on their own without interaction with a court. In such cases, there is no independent oversight.

The Department of Justice now claims that, under the Fourth Amendment, it can simply subpoena an Internet company like Facebook and demand that they look for and turn over all the records they have on our Mr. Anderson. Their explanation: the DOJ isn’t doing the searching, just demanding that another organization do it. As far as its lawyers are concerned, in such a situation, no warrant is needed. In addition, the Department of Justice believes it has the authority to subpoena multiple records, maybe even all the records Facebook has. Records on you? Some group of people including you? Everyone? We don’t know, as sources of data like Facebook and Google are prohibited from disclosing much about the information they hand over to the NSA or other government outfits about you.

It’s easy enough to miss the gravity of this in-house interpretation when it comes to the Fourth Amendment. If the FBI today came to your home and demanded access to your emails, it would require a warrant obtained from a court after a show of probable cause to get them. If, however, the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message you’ve ever sent without a warrant and it won’t constitute a “search.” The DOJ has continued this practice even though in 2010 a federal appeals court ruled that bulk warrantless access to email violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act similarly makes it clear that the Bureau’s agents don’t need warrants to access email in bulk when it’s pulled directly from Google, Yahoo, Microsoft, or other service providers.

How far can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the inspector general of the Department of Veterans Affairs (VA) issued a subpoena — no court involved — demanding that the Project On Government Oversight (POGO) turn over all information it has collected relating to abuses and mismanagement at VA medical facilities. POGO is a private, non-profit group, dedicated to assisting whistleblowers. The VA subpoena demands access to records sent via an encrypted website to POGO under a promise of anonymity, many from current or former VA employees.

Rather than seek to break the encryption surreptitiously and illegally to expose the whistleblowers, the government has taken a simpler, if unconstitutional route, by simply demanding the names and reports. POGO has refused to comply, setting up a legal confrontation. In the meantime, consider it just another sign of the direction the government is heading when it comes to the Fourth Amendment.

Technology and the Fourth Amendment

Some observers suggest that there is little new here. For example, the compiling of information on innocent Americans by J. Edgar Hoover’s low-tech FBI back in the 1960s has been well documented. Paper reports on activities, recordings of conversations, and photos of meetings and trysts, all secretly obtained, exposed the lives of civil rights leaders, popular musicians, and antiwar protesters. From 1956 to at least 1971, the government also wiretapped the calls and conversations of Americans under the Bureau’s counterintelligence program (COINTELPRO).

But those who look to such history of government illegality for a strange kind of nothing-new-under-the-sun reassurance have not grasped the impact of fast-developing technology. In scale, scope, and sheer efficiency, the systems now being employed inside the U.S. by the NSA and other intelligence agencies are something quite new and historically significant. Size matters.

To avoid such encroaching digitization would essentially mean withdrawing from society, not exactly an option for most Americans. More of life is now online — from banking to travel to social media. Where the NSA was once limited to traditional notions of communication — the written and spoken word — new possibilities for following you and intruding on your life in myriad ways are being created. The agency can, for instance, now collect images, photos, and video, and subject them to facial recognition technology that can increasingly put a name to a face. Such technology, employed today at casinos as well as in the secret world of the national security state, can pick out a face in a crowd and identify it, taking into account age, changes in facial hair, new glasses, hats, and the like.

An offshoot of facial recognition is the broader category of biometrics, the use of physical and biological traits unique to a person for identification. These can be anything from ordinary fingerprinting to cutting-edge DNA records and iris scans. (Biometrics is already big business and even has its own trade association in Washington.) One of the world’s largest known collections of biometric data is held by the Department of State. As of December 2009, its Consular Consolidated Database (CCD) contained more than 75 million photographs of Americans and foreigners and is growing at a rate of approximately 35,000 records per day. CCD also collects and stores indefinitely the fingerprints of all foreigners issued visas.

With ever more data available, the NSA and other agencies are creating ever more robust ways to store it. Such storage is cheap and bounteous, with few limits other than the availability of electricity and water to cool the electronics. Emerging tech will surely bypass many of the existing constraints to make holding more data longer even easier and cheaper. The old days of file cabinets, or later, clunky disk drives, are over in an era of mega-data storage warehouses.

The way data is aggregated is also changing fast. Where data was once kept in cabinets in separate offices, later in bureaucratically isolated, agency-by-agency digital islands, post-9/11 sharing mandates coupled with new technology have led to fusion databases. In these, information from such disparate sources as license plate readers, wiretaps, and records of library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can now be put into a single “file.”

Once you have the whole haystack, there’s still the problem of how to locate the needle. For this, emerging technologies grow ever more capable of analyzing Big Data. Some simple ones are even available to the public, like IBM’s Non-Obvious Relationship Awareness software (NORA). It can, for example, scan multiple databases, geolocation information, and social media friend lists and recognize relationships that may not be obvious at first glance. The software is fast and requires no human intervention. It runs 24/7/365/Forever.

Tools like NORA and its more sophisticated classified cousins are NSA’s solution to one of the last hurdles to knowing nearly everything: the need for human analysts to “connect the dots.” Skilled analysts take time to train, are prone to human error, and — given the quickly expanding supply of data — will always be in demand. Automated analysis also offers the NSA other advantages. Software doesn’t have a conscience and it can’t blow the whistle.

What does all this mean in terms of the Fourth Amendment? It’s simple: the technological and human factors that constrained the gathering and processing of data in the past are fast disappearing. Prior to these “advances,” even the most ill-intentioned government urges to intrude on and do away with the privacy of citizens were held in check by the possible. The techno-gloves are now off and the possible is increasingly whatever an official or bureaucrat wants to do. That means violations of the Fourth Amendment are held in check only by the goodwill of the government, which might have qualified as the ultimate nightmare of those who wrote the Constitution.

On this front, however, there are signs of hope that the Supreme Court may return to its check-and-balance role of the Constitutional era. One sign, directly addressing the Fourth Amendment, is this week’s unanimous decision that the police cannot search the contents of a cell phone without a warrant. (The court also recently issued a ruling determining that the procedures for challenging one’s inclusion on the government’s no-fly list are unconstitutional, another hopeful sign.)

Prior to the cell phone decision, law enforcement held that if someone was arrested for, say, a traffic violation, the police had the right to examine the full contents of his or her cell phone — call lists, photos, social media, contacts, whatever was on the device. Police traditionally have been able to search physical objects they find on an arrestee without a warrant on the grounds that such searches are for the protection of the officers. 

In its new decision, however, the court acknowledged that cell phones represent far more than a “physical object.” The information they hold is a portrait of someone’s life like what’s in a closet at home or on a computer sitting on your desk. Searches of those locations almost always require a warrant.

Does this matter when talking about the NSA’s technological dragnet? Maybe. While the Supreme Court’s decision applies directly to street-level law enforcement, it does suggest an evolution within the court, a recognition of the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is now recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.

National Security Disclosures Under HIPPA

While the NSA’s electronic basket of violations of the Fourth Amendment were, pre-Snowden, meant to take place in utter secrecy, here’s a violation that sits in broad daylight: since 2002, my doctor can disclose my medical records to the NSA without my permission or knowledge. So can yours.

Congress passed the Health Information Portability and Accountability Act (HIPPA) in 1996 “to assure that individuals’ health information is properly protected.” You likely signed a HIPPA agreement at your doctor’s office, granting access to your records. However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of those records for national security purposes. Specifically, the new version of this “privacy law” states: “We may also disclose your PHI [Personal Health Information] to authorized federal officials as necessary for national security and intelligence activities.” The text is embedded deep in your health care provider’s documentation. Look for it.

How does this work? We don’t know. Do the NSA or other agencies have ongoing access to the medical records of all Americans? Do they have to request specific ones? Do doctors have any choice in whose records to forward under what conditions? No one knows. My HMO, after much transferring of my calls, would ultimately only refer me back to the HIPPA text with a promise that they follow the law.

The Snowden revelations are often dismissed by people who wonder what they have to hide. (Who cares if the NSA sees my cute cat videos?) That’s why health-care spying stands out. How much more invasive could it be than for your government to have unfettered access to such a potentially personal and private part of your life — something, by the way, that couldn’t have less to do with American “security” or combating terrorism.

Our health-care providers, in direct confrontation with the Fourth Amendment, are now part of the metastasizing national security state. You’re right to be afraid, but for goodness sake, don’t discuss your fears with your doctor.

How the Unreasonable Becomes Reasonable

At this point, when it comes to national security matters, the Fourth Amendment has by any practical definition been done away with as a part of Post-Constitutional America. Whole books have been written just about Edward Snowden and more information about government spying regularly becomes available. We don’t lack for examples. Yet as the obviousness of what is being done becomes impossible to ignore and reassurances offered up by the president and others are shown to be lies, the government continues to spin the debate into false discussions about how to “balance” freedom versus security, to raise the specter of another 9/11 if spying is curtailed, and to fall back on that go-to “nothing to hide, nothing to fear” line.

In Post-Constitutional America, the old words that once defined our democracy are twisted in new ways, not discarded. Previously unreasonable searches become reasonable ones under new government interpretations of the Fourth Amendment. Traditional tools of law, like subpoenas and warrants, continue to exist even as they morph into monstrous new forms.

Americans are told (and often believe) that they retain rights they no longer have. Wait for the rhetoric that goes with the celebrations of our freedoms this July 4th. You won’t hear a lot about the NSA then, but you should. In pre-constitutional America the colonists knew that they were under the king’s thumb. In totalitarian states of the last century like the Soviet Union, people dealt with their lack of rights and privacy with grim humor and subtle protest. However, in America, ever exceptional, citizens passively watch their rights disappear in the service of dark ends, largely without protest and often while still celebrating a land that no longer exists.

Peter Van Buren blew the whistle on State Department waste and mismanagement during the Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A Tom Dispatch regular, he writes about current events at his blog, We Meant Well. His new book, Ghosts of Tom Joad: A Story of the #99Percent, is available now. This is the second in a three-part series on the shredding of the Bill of Rights.

Follow TomDispatch on Twitter and join us on Facebook and Tumblr. Check out the newest Dispatch Book, Rebecca Solnit’s Men Explain Things to Me.

Copyright 2014 Peter Van Buren

Mirrored from Tomdispatch.com

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