Due largely to unauthorized leaks, we now know that the National Security Agency has seized from private companies voluminous data on the phone and Internet usage of all U.S. citizens. We've also learned that the United States Foreign Intelligence Surveillance Court has approved the constitutionality of these seizures in secret proceedings in which only the government appears, and in opinions kept secret even from the private companies from whom the data are seized.

If this weren't disturbing enough, the Consumer Financial Protection Bureau, created by the 2010 Dodd-Frank financial reform, is compiling a massive database of citizens' personal information—including monthly credit-card, mortgage, car and other payments—ostensibly to protect consumers from abuses by financial institutions.

All of this dangerously violates the most fundamental principles of our republican form of government. The Fourth Amendment has two parts: First, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Second, that "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."

By banning unreasonable "seizures" of a person's "papers," the Fourth Amendment clearly protects what we today call "informational privacy." Rather than seizing the private papers of individual citizens, the NSA and CFPB programs instead seize the records of the private communications companies with which citizens do business under contractual "terms of service." These contracts do not authorize data-sharing with the government. Indeed, these private companies have insisted that they be compelled by statute and warrant to produce their records so as not to be accused of breaching their contracts and willingly betraying their customers' trust.

As other legal scholars, most notably Yale law professor Akhil Reed Amar, have pointed out, when the Fourth Amendment was ratified in 1791 as part of the Bill of Rights, government agents were liable for damages in civil tort actions for trespass. The Seventh Amendment preserved the right to have a jury composed of ordinary citizens pass upon the "reasonableness" of any searches or seizures. Because judges were not trusted to jealously guard the liberties of the people, the Fourth Amendment restricted the issuance of warrants to the heightened requirements of "probable cause" and specificity.