Scalia is not saying that SCOTUS should not decide a constitutional question. He’s saying that SCOTUS is the least qualified of the three branches to resolve the question of reasonableness because they are not privy to the details of national security threats.
Scalia: Governmental listening to private conversations does not apply to the persons, houses, papers, and effects protected from unreasonable searches and seizures by the 4th Amendment. So Scalia is saying that government doesn’t have to have to show any particular reason, certainly not a probable-cause reason, to listen in on private conversations.
Me: Not sure I agree with that. Here is where I think Scalia is weak and conflicts, IMO, with the original-intent approach of constitutional scholar Judge Robert Bork – when Scalia uses the letter of the text to trump original intent. If original intent and understanding may be reasonably suspected to conflict with the text per se, especially in the current usage of the word(s), a good-faith effort should be made to uncover original intent and understanding. Here, that effort might very well show that something in persons, houses, papers, or effects that may have in fact included governmental listening to private conversations.
Examples:
• secure in your “houses” could certainly include wiretapping
• secure in your “papers” or “effects” may very well have been intended to include private communications.
IMO, the Constitutional issue in the NSA case is not the level of threat, but whether the NSA has probable cause and whether a warrant would be required (usually required for a house search).