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.
McCarthy summons in his defense the discredited decision in Olmstead v. United States (1928), authored by activist Chief Justice William Howard Taft. The precedent held that limitless government wiretapping doesn’t violate the Fourth Amendment because conversations aren’t mentioned in the amendment’s text. The decision was overturned by the Supreme Court in Katz v. United States (1967), which declared that the Fourth Amendment protects “reasonable expectations of privacy,” including phone conversations. But, McCarthy retorts, at least with regard to the collection of metadata like phone numbers dialed, the duration of phone calls, and the location of the callers, federal courts have held the Fourth Amendment is inapplicable. Again, true enough. The ill-conceived flagship decision was scribbled by Associate Justice Harry Blackmun in Smith v. Maryland (1979). (Justice Blackmun seems a dubious reference for McCarthy. He invented a constitutional right to abortion in Roe v. Wade (1973).)
In any event, the Smith precedent is destined to be overruled as well. McCarthy’s tacit assertion that the Founding Fathers would have sanctioned dragnet government surveillance of every citizen’s phone calls without a crumb of evidence that wrongdoing was afoot is delusionary. In 1761, James Otis denounced as unconstitutional British “writs of assistance” which authorized uncabined searches of homes or businesses in hopes of discovering customs violations. John Adams remarked: “[T]he child independence was then and there born, [for] every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance.” British statesman William Pitt the Elder inspired the Constitution’s makers in the protection of privacy with his 1763 speech to Parliament: “The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter — but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!”
McCarthy errantly enlists Associate Justice Antonin Scalia for the proposition that the animating idea behind the Fourth Amendment is the protection of “personal property.” The amendment protects the privacy interests of persons. A vehicle subject to an illegal search has no standing to sue in federal court. Further, Justice Scalia regularly affirms that the Fourth Amendment protects individual interests beyond personal property. In Kyllo v. United States (2001), Justice Scalia held that thermal imaging of a house was a search governed by the Fourth Amendment. He elaborated with regard to new technology and the amendment: “We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” constitutes a search — at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search.” (Justice Scalia has voted for the defense in every non-unanimous Fourth Amendment decision this term.)
Justice Louis Brandeis taught in Burnet v. Coronado Oil & Gas Co. (1932) that, “The court bows to the lessons of experience and the force of better reasoning recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.” Senator Rand Paul’s enlightened legislative and litigating initiatives build on that wisdom. Because of the Internet and other technological advances, the dangers to citizens’ privacy engendered by government snooping are vastly more acute today than they were when Smith was decided. McCarthy argues, nevertheless, that the law should blindly imitate the past, as if the geocentric theory of the universe should have prevailed over the theories of Galileo and Copernicus.
Bruce Fein was associate deputy attorney general under President Reagan and is author of “American Empire Before the Fall” and “Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy.”