The Fourth Amendment in the 21st Century

Over at NRO, Andrew McCarthy criticizes Rand Paul’s new legislation that provides that:

1. The collection of citizen’s 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.

2. 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.

McCarthy first questions sarcastically whether people have natural rights to privacy as to their phone records (“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.”) I am skeptical of natural rights, but putting that to the side I think McCarthy is on weak ground here. There is no reason to believe that natural rights would not apply to modern technology. That the records are the property of third party service providers is a better point. But in a world where it mattered who owned the records, perhaps people would insist on a contractual right to privacy in their records, which might change things.

My main focus here, however, is the issue concerning the Constitution. McCarthy writes that the original text does not protect such phone records, because the 4th Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects.” I am not an expert in the original meaning of the Amendment but McCarthy has a point. The records are unlikely to be persons, houses, or papers, and probably not effects as well, which Webster’s 1828 dictionary defines effects as “goods; movables; personal estate.”

If this analysis is correct, then this suggests that the original meaning of the 4th Amendment does not provide protection. What should an originalist say about this?

One possible answer is to say that it is time – and it has long been time – for an updating of the Amendment. Not by the Courts, but by the American people. A recognition that the Amendment does not cover any of these matters in the slightest – nor wiretapping and other matters covered by the Courts in the 1960s and before – would lead to a discussion of what a newer Amendment should cover. Balancing privacy and security involves difficult issues and debating them, in the context of modern technology, would be desirable. More desirable, I would add, them having the Supreme Court decide these matters as they wished.

So, if Rand Paul’s legislation does not enforce the original meaning of the 4th Amendment, does that mean it is unjustified? Absolutely not. In fact, if we are to have a debate about privacy in the modern world, debating legislation of this kind is essential. What is more, if Paul’s legislation became popular and were enacted, that would be useful as well, because it would help us understand how such principles operate in the modern world. We might reasonably want to observe a rule before enacting it  into the Constitution without some understanding of how it operates in the real world.

In the end, then, McCarthy and Paul might both be right. The original meaning of the 4th Amendment probably does not cover these actions, but Paul’s legislation (or some other legislation) might make sense.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. johnt says

    I’m not sure why this must rest only on the 4th amendment, though I suspect an argument could be made for it. As a protection against government intrusion, by modest extension the individual ought not to be excluded. More important, if the records are the property of the companies how is that no recourse is available to the initiator & payer for the usuage, the customer. If there are grounds for user recourse, how could there not be, subpoenas for example as starters, McCarthy starts off wrong.
    Privacy as an issue, mentioned above, offers addtional counters to misuse, maybe squeeze in the usually inevitable 1st Amendment

  2. Windy Wilson says

    Andrew McCarthy is WRONG (not to put too fine a point on it).
    These records are the modern equivalent of papers and effects. Excluding these records from the protection of the Fourth Amendment is as logically sound as excluding Internet and telephone and television communications from the protections of the First Amendment or excluding any firearm more advanced than a flintlock-actuated black powder muzzle-loader from the protections of the Second Amendment because these things were not even dreamed of by the framers of the Constitution.

  3. Richard S says

    McCarthy begins with the assumption that current precedent is reasonable. He is, after all, a former Assistant Attorney General, and he prosecuted people in the regime created by current law. Given the other abuses of the law the Court was undertaking at the time, I am not sure that’s a reasonable presumption.

    It would be useful to have that discussion. If we do it properly, our rights as men, by nature, will be the heart of it.

  4. Randolph says

    Assuming Mr. McCarthy is right regarding the language and meaning of the fourth amendment, it still wouldn’t follow that the government has the power to hone in on phones, emails, etc. For if this is true, where is it written in the constitution that the federal government can do such things? It is to my understanding that the federal government has only those powers granted. I have yet to see such power; therefore, the federal government has no authority.

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