Anti-NSA Conservative, Choose: Antonin Scalia’s Originalism or Rand Paul’s Living Constitutionalism

Should there be a law against the NSA doing what it recently was revealed (not really for the first time) to have been doing? I confess I have not yet been convinced by the case against the collection of heaps of telephone call records only to be sifted in restricted FISA situations; what libertarian con-law expert Richard Epstein says on the Cato Institute page seems sensible on that:

The metadata it examines in its effort to uncover suspicious patterns enables it to learn the numbers called, the locations of the parties, and the lengths of the calls. The government does not know — as some have charged — whether you’ve called your psychiatrist, lawyer or lover. The names linked to the phone numbers are not available to the government before a court grants a warrant on proof of probable cause, just as the Fourth Amendment requires. Indeed, once that warrant is granted to examine content, the content can be used only for national security issues . . .

With regards to email and site-accessing, the picture of what the NSA is authorized to do remains unclear to me. So if you’re on the ball here, chime in and educate me on the NSA “scandal,” if that’s what we should call it, and tell me what laws need to be passed, and/or who needs to be fired, prosecuted, etc. The floor is yours.

Of course, if what the NSA did is unconstitutional, that is, if regardless of being authorized by a particular law it violates certain constitutionally-protected rights to privacy that we have, such as the 4th amendment “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” then things become more serious.

And that is precisely what millions of conservatives, and other Americans, began thinking almost immediately. They were outraged and scared by the NSA actions, and assumed that they must be unconstitutional.

Rand Paul wants to be their spokesperson, and has sponsored a bill he calls the Fourth Amendment Restoration Act.

He wants us, on one hand, to change the law. Andrew McCarthy shows us how that change would produce serious disadvantages, namely, ineffective domestic law-enforcement. It’s a law that would increase crime, especially organized crime, and hobble law-enforcement agencies.

The proposed law states: “The Fourth Amendment . . . shall not be construed to allow any agency of the United States Government to search phone records of Americans without a warrant based on probable cause”

. . . [that] includes the FBI, the DEA, and every other agency performing everyday law enforcement . . . I do not know what, if any, familiarity Dr. Paul has with how law enforcement works, but it would be next to impossible for police to make cases against organized-crime groups, drug cartels, and other large-scale criminal enterprises if they had to have probable cause of crime before they could obtain phone records.

I assume there is a way to tinker with the law, to keep its restrictions directed solely at the NSA and counter-terrorism. If you are an “anti-NSA” conservative (i.e., a conservative against the recently revealed actions) I suppose that is what you should be for.

But this is not just a law Paul is calling for, but a novel understanding of the Constitution.

For the bombshell McCarthy’s piece really reveals about Paul’s bill is the concessions it makes to living-constitutionalism . Not the liberal or progressive brand of living constitutionalism, to be sure, as Paul has been a big stickler on things like the commerce clause, but the populist libertarian brand of it. More McCarthy:

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 [1928].)

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.

(A NSA-specific bill such as I mentioned above could be such an additional safeguard.)

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.

But hey, that’s no problem according to living constitutionalist theory. The people’s spontaneous voice knew that what the NSA had done violated the 4th. They are with Paul. He speaks for them. The people’s understanding of the words “papers,” “home,” “effects,” “searches” etc. have all evolved and justices and legislators are obliged to keep pace—this ain’t the era of the horse and buggy, but the era of the internet, and the people know darn well what their right to privacy is.

These are living constitutionalist arguments, as anyone whose studied William Brennan’s infamous Georgetown address, or Cass Sunstein, or Goodwin Liu, etc., knows. And they are quite crudely living constitutionalist. You won’t find the likes of Richard Epstein, I’m pretty sure, ever using them.

Now there is a key divide between originalists and libertarians on the question of substantive due process and the right to contract, among other rights. Originalists like me think Lochner was decided wrongly, and is all the more reason why liberals should admit that Griswold and Roe were decided wrongly also. If you read Richard Epstein , David Bernstein , or David Mayer , they may convince you otherwise about Lochner . And while some of these libertarian con-law guys do accept something like Griswold’s/Roe’s right to contraceptive privacy, I would say they have a much better (quasi-originalist, but more common-law-based) case for a right to contract and such being defended by the word “liberty” in the 14th amendment than they do for Griswold’s/Roe’s right of “privacy.” Theirs really is impressive scholarship.

But as for Paul, he is appealing to crude instincts. And make no mistake, the emerging brand of populist libertarianism here, which could re-gather the youth to the GOP (or break off to form some other anti-Dem party), in part by appealing to their crude assumptions that the Constitution just must protect their most expansive expectations for privacy both in terms of searches, and in terms of personal/sexual rights, is a real danger. I don’t care so much about the danger to the GOP, as I do the one to the Constitution.

You believe what the NSA is presently doing ought to be unconstitutional? Fine.  Pass a stinkin’ amendment. We originalists say the same thing to those who say that it ought be unconstitutional for state governments to ban same-sex marriage, after all.  But you gotta choose: Paul’s libertarian living constutionalism or Scalia’s originalism. You don’t get to be an originalist only when it lines up with your policy preferences or political philosophy. Sure, if you think in a libertarian vein that Scalia gets the real originalism wrong, then the choice is between Paul’s evolutionary populism or the real libertarian constitutional loyalty of the sort offered by Epstein and co.

But man up already, crack a few books (sorry, gun magazines don’t count!—try this instead) and stop flattering yourself that you can rely on this Paul character and his supposedly beautiful instincts to stand up for your rights, instead of yourself understanding them.