Immigration reform isn’t the only issue as to which Rand Paul is embarrassing himself these days. The Senator’s “Fourth Amendment Restoration Act of 2013” represents a stunning combination of ignorance and hysteria.
Andy McCarthy demonstrates Paul’s ignorance. He writes:
[T]he bill is unacquainted with the Fourth Amendment — either the one given to us by the Framers or even the one enlarged over time by Supreme Court jurisprudence. . . .Senator Paul’s proposed law asserts: “The collection of citizen’s [ACM: I take it he means citizens’] phone records is a violation of the natural rights of every man and woman in the United States.” A citizen’s “natural right” to telephone-usage records that are actually the property of third-party service providers? I wonder what St. Augustine would have made of that.
Not content to contort natural law, Paul then works his magic on positive law. He alleges that collection of records of telephone activity (but not the content of phone conversations) is somehow “a clear violation of the explicit language of the highest law of the land.”
By “highest law of the land,” Paul is referring to the Constitution’s Fourth Amendment. The senator apparently did not read the Fourth Amendment before cutting and pasting it into his bill. It requires (in relevant part) that “the right of the people to be secure in their persons, houses, papers, and effects, shall not be violated.”
Perhaps Senator Paul will edify us on how it is “clear” that a phone record, owned and possessed by a telephone service provider (not the customer), qualifies as the person, house, paper, or effect of the customer, such that the government’s acquisition of it violates the Fourth Amendment. The federal courts have consistently, emphatically rejected this implausible suggestion, holding that government’s collection of phone records does not even implicate the Fourth Amendment, much less violate it.
McCarthy proceeds to explain why “what Paul is advocating is a Constitution even more warped than the ‘organic’ one progressive jurists have contrived” and why Paul’s “proposal bears no resemblance to the Constitution of the Framers.”
McCarthy’s analysis deserves to be read in full, rather than summarized by me.