Rand Sullies Fourth: Paul’s bill is just plain wrong
By: Daniel Clark
Last August, a well-meaning but misguided Spanish artist named Celia Gimenez took it upon herself to restore a mural of Jesus in her church. The tragic result was a figure that more closely resembled Ohio State University mascot Brutus the Buckeye. Keep that in mind when you read Kentucky senator Rand Paul’s “Fourth Amendment Restoration Act.”
The first-term libertarian Republican’s bill, a draft of which is posted on his dot-gov website, rails against federal surveillance efforts by distorting the Fourth Amendment into something the men who wrote and ratified the Bill of Rights would never recognize. The “findings” section begins by reprinting the amendment in its entirety, but then none of the rest of the bill refers back to explain how it specifically applies.
The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” How Sen. Paul’s finding that “the National Security Agency is currently collecting the phone records of American citizens” relates to this goes unexplained.
If these phone records were files that we had stored on our property, and the feds came barging in and confiscated them, that would be a violation of the Fourth Amendment. Obtaining electronic data from a third party by means of a court order doesn’t come anywhere close to that. The NSA phone data is not a person, house, paper or effect, so the Fourth Amendment does not apply. In concluding that it does, Paul seems to have accepted the judicial activists’ viewpoint, that the amendment’s specific provisions have melded over time into a generalized “right to privacy.” In short, he has embraced the “living Constitution” paradigm.
Paul piles on with the claim that, “The collection of citizen’s [sic] phone records is a violation of the natural rights of every man and woman in the United States, and a clear violation of the explicit language of the highest law of the land.” Natural rights are those “certain unalienable rights” that the Declaration of Independence found to be self-evident. The Declaration goes on to explain that “among these are life, liberty, and the pursuit of happiness.” When the Constitution was written, this was codified into the Fifth Amendment as our rights to life, liberty and property.
Does Paul believe we are likewise endowed by our Creator with the right to keep our phone contacts and the duration of our calls private? If so, he certainly can’t point to any “explicit language” in the Constitution that says so. One wonders if he even understands what “explicit” means. If this “explicit language” really existed, he could sure help his argument by citing it, but it doesn’t, so he won’t. The unexamined assumptions he calls “findings” would more aptly be described as “sightings,” because the subject always manages to run away before he can get a clear picture of it.
The bill concludes, “The Fourth Amendment to the Constitution shall not be construed to allow any agency of the United States Government to search the phone records of Americans without a warrant based on probable cause.” Collecting data and searching it are two different things. Paul’s “findings” claim that the collection of phone data is not just unconstitutional, but a violation of our natural rights. Yet his bill would only prohibit the NSA from searching the data, which means that collecting it would remain legal.
Not every bad policy is a constitutional issue. If Paul wanted to prohibit the government from collecting the phone data of innocent Americans, he could have written a bill to do that, without proposing anything as grandiose as restoring the Fourth Amendment. If anyone involved in this whole episode is threatening the Constitution, it is he. By demanding that the Fourth Amendment be construed to mean what it doesn’t say, he is proposing to dispense with the constitutionally prescribed amendment process, and simply amend the Constitution by statute.
At least Celia Gimenez’s accidental vandalism was only aesthetic in nature. For Rand Paul’s ill-considered and, frankly, stupidly written bill to pass would be to take a spray can to the fundamental law of our land, not to mention one of the great masterpieces of Western civilization. Our federal judiciary, much of which is essentially Occupy Wall Street in black robes, doesn’t need that kind of help.
Please, let’s never let Sen. Paul get anywhere near that famously unfinished portrait of George Washington. The way he restores things, the father our country would turn out looking like Bea Arthur.
Daniel Clark is a writer from Pittsburgh, Pennsylvania. He is the author and editor of a web publication called The Shinbone: The Frontier of the Free Press, where he also publishes a seasonal sports digest as The College Football Czar.