To borrow from the British sage Samuel Johnson, Andrew McCarthy expounding on the Fourth Amendment is like a dog walking on his hind legs. It is not done well, but you are surprised to find it done at all.
In a recent National Review article, McCarthy sneers at Senator Rand Paul’s assertion of a “natural right” to the privacy of telephone usage records from government snooping absent probable cause to suspect crime or espionage. McCarthy’s rejection of “natural rights” betrays ignorance of the Declaration of Independence, which provided the philosophical background for the Constitution. Among other things, the Declaration maintains: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men …”
In other words, individuals enjoy a natural right to liberty, including the right to be left alone — the most cherished right among civilized people. Governments are established to secure that right, not to destroy it. Accordingly, citizens are endowed with a right to keep telephone usage records secret from the eyes of government. Big Brother must justify every invasion of that privacy, which Senator Paul’s proposed “Fourth Amendment Restoration Act of 2013” would require.
McCarthy scorns Senator Paul for asserting that a citizen’s phone records (i.e., metadata) fall within the Fourth Amendment’s protection against unreasonable government searches and seizures. He correctly notes that the relevant constitutional text protects only “persons, houses, papers, and effects.” Phone records owned and maintained by a telephone service provider, McCarthy harrumphs, are omitted.
True enough. Interpreting the Constitution, however, is not a wooden exercise. The law is not a petrified forest. By McCarthy’s literalism, Congress would lack power to authorize an air force because Article I, Section 8 of the Constitution speaks only of armies and navies; and, the president would be permitted to suppress free speech because the text of the First Amendment restricts only Congress. But that is not the law.
Chief Justice John Marshall instructed in McCulloch v. Maryland (1819): “A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” In other words, in expounding the Constitution, “the letter killeth but the spirit giveth life,” to quote from Saint Paul.