The notorious “civil rights” lawyer William Kunstler, in addition to his work on “political” cases (i.e., anti-American radical-leftist and terrorist cases), gladly made himself available to mobsters, too — after all, someone had to pay the bills. Invited to a dinner once after a job well done for a mafia don, he hoisted a glass to the assembled capos and button men, toasting them, “Here’s to crime!”
Gleeful crooks across the country could be giving the same toast if Senator Rand Paul gets his way. The self-styled libertarian Republican from Kentucky, firmly in his father’s tradition of overreaction to imagined constitutional violations (or, perhaps I should say, violations of an imaginary Constitution) is outraged by reports that the Defense Department’s National Security Agency (NSA) is collecting “metadata” on phone calls of millions of Americans. He has responded by introducing an absurd piece of legislation he calls the “Fourth Amendment Restoration Act of 2013.”
Naturally, the bill is unacquainted with the Fourth Amendment — either the one given to us by the Framers or even the one enlarged over time by Supreme Court jurisprudence. I use the word “naturally” advisedly. Senator Paul’s proposed law asserts: “The collection of citizen’s [ACM: I take it he means citizens’] phone records is a violation of the natural rights of every man and woman in the United States.” A citizen’s “natural right” to telephone-usage records that are actually the property of third-party service providers? I wonder what Saint Augustine would have made of that.
Not content to contort natural law, Paul then works his magic on positive law. He alleges that collection of records of telephone activity (but not the content of phone conversations) is somehow “a clear violation of the explicit language of the highest law of the land.”
By “highest law of the land,” Paul is referring to the Constitution’s Fourth Amendment. The senator apparently did not read the Fourth Amendment before cutting and pasting it into his bill. It requires (in relevant part) that “the right of the people to be secure in their persons, houses, papers, and effects, shall not be violated.” Perhaps Senator Paul will edify us on how it is “clear” that a phone record, owned and possessed by a telephone service provider (not the customer), qualifies as the person, house, paper, or effect of the customer, such that the government’s acquisition of it violates the Fourth Amendment. The federal courts have consistently, emphatically rejected this implausible suggestion, holding that government’s collection of phone records does not even implicate the Fourth Amendment, much less violate it.
Maybe Senator Paul would tell us that this is just the muck those crazy left-wing judges have made of the Constitution. But what Paul is advocating is a Constitution even more warped than the “organic” one progressive jurists have contrived. His proposal bears no resemblance to the Constitution of the Framers.
In last year’s United States v. Jones decision, Justice Scalia explained (not for the first time) that the animating idea behind the original Fourth Amendment is protection of personal property. The Constitution was not deemed to be violated absent some form of government trespass. That is why, under the Fourth Amendment as originally understood, it would be a violation for police, without a valid judicial warrant, to attach a GPS tracker to a person’s car and monitor his movements (the situation in the Jones case). On the other hand, it would not be a violation to wiretap a person’s conversations by physically attaching a monitoring device to the phone company’s line on a public street, without any entry into the person’s home or trespass on his property. (See Olmstead v. United States .)
This changed because the Supreme Court deviated from the original Fourth Amendment’s bright-line focus on the physical person and his property to embrace the vague concept of “reasonable expectation of privacy.” The original Fourth Amendment preserved the proper constitutional order: It instructs us on what the government must protect, while the people’s representatives in Congress are free to enact additional safeguards beyond this irreducible constitutional guarantee. By contrast, were we to rewrite the Fourth Amendment consistent with its modern understanding — assuming the written word means anything when we could evolve again at any moment — it would say: “The right of the people to be secure in whatever expectations of privacy we judges think are reasonable shall not be violated.”
Unfortunately for Senator Paul, even this new Fourth Amendment that progressives have erected on the remains of the original one has never protected third-party business records. That, in particular, includes “metadata” — customer telephone activity (not the content of conversations, but numbers dialed, time and duration of calls, etc.), records of which are maintained by service providers.
To give such third-party business records constitutional status, Senator Paul would have to get the judges to invent a newer, more expansive Fourth Amendment. So could we please drop the bunkum about how Senator Paul and his anti-government followers are “constitutional conservatives” crusading to “restore” the Fourth Amendment? If Senator Paul were actually trying to “restore” the Fourth Amendment, he’d be calling not for phone-usage records to be shielded from government but for phone conversations to be more easily monitored by government.