Think for a moment about judicial confirmation hearings. Pro-abortion Democrats routinely elicit from pro-life nominees a commitment to follow Roe v. Wade, regardless of the nominee’s legal and moral objections to it, because it is binding Supreme Court precedent and thus the law of the land. The foundation of the rule of law is not just that the executive branch must follow valid congressional statutes; it also requires that inferior courts adhere to the rulings of superior courts, even if the lower court judge believes those rulings are flawed. In the judicial branch, only the Supreme Court has the authority to overturn Supreme Court rulings. Judge Leon has no such authority – and he well knows it.
A Telecom’s Records Are Not Your “Person, House, Papers, Or Effects”
Leon’s ruling is profoundly ill-conceived. To say that he flouted a controlling Supreme Court precedent is not the half of it.
Leon concedes that the plaintiffs’ challenge to the NSA program is an “expectation of privacy” case, not an “intrusion on a constitutionally protected area” case. This inches upon the stubborn fact I’ve repeatedly raised – a fact dismaying to libertarians posing as faithful constitutionalists: the Fourth Amendment, as originally understood, does not protect anyone’s abstract “expectation of privacy.” Instead, it states quite concretely that the American people have a right to be secure against unreasonable searches and seizures “in their persons, houses, papers, and effects” (emphasis added).
Persons, houses, papers, and effects are the four “constitutionally protected areas.” There are no others. Like it or not, the collection and perusal of business records that are not your property – that are actually the property of your telephone service provider, even though they pertain to your usage of the service – are in no way a search or seizure of your person, house, papers or effects.
Anyone claiming to be a “constitutional conservative” should admit that, if we were dealing with the original Fourth Amendment, the case would be over. The reason it is not is “expectation of privacy,” a progressive doctrine the Supreme Court conjured up in the 1960s. Eventually, it dramatically expanded the Fourth Amendment’s carapace. No longer would courts merely enforce from the objective concept of trespass against private property; now the Constitution would be said to reflect the evolving, eccentric, and often contradictory whims of judges about what aspects of life ought to be private.
Here, it is necessary to pause and add that faithful constitutionalists freely concede there is nothing wrong with protecting our legitimate expectations of privacy from a prying government as they evolve with time and technology. To the contrary, it is vital to liberty that those expectations be protected. In our constitutional system, however, that protection is supposed to be added by the people’s representatives in Congress. The role of the judiciary is to safeguard the constitutional guarantee – to protect our persons, houses, papers, and effects from unreasonable searches and seizures. It is not to make up a new Fourth Amendment as we go along, under the guise of an “expectation of privacy” harbored by some supposedly objective person (namely, the judge who happens to catch the case).
The NSA program is a creature of statute that addresses privacy concerns which, while entirely legitimate, are not constitutionally protected. It permits the collection of information but imposes safeguards that severely limit what the government may do with that information. Reasonable minds can and do differ on whether those privacy safeguards are adequate. But if they are to be modified – or if the program is to be scrapped because its security benefits are outweighed by its privacy costs – that ought to be done by Congress, not by judges pretending that the Fourth Amendment says something it does not.