The debate surrounding the sunset of section 215 of the Patriot Act is a historic moment for the Fourth Amendment, which protects Americans from unreasonable searches and seizures of their persons, houses, papers and effects.
Americans do not and cannot trust government to be benevolent — nor should they. This is part of the reason our Constitution was written as it was in the first place. And this truth has been proven again and again in modern times, by so many recent official misdeeds and falsehoods coming from the mouthpieces of government — including prosecutorial misconduct that has had grave consequences and serious criminal penalties for its victims.
For example, when the Benghazi attack occurred, killing four American diplomats, the Obama administration lied and blamed a maker of an anti-Muslim film. And it is bad enough to see the IRS claiming to have "lost" emails and allowing hackers to steal private taxpayer information from its systems. But that seems tame compared to other malicious, targeted abuses of power against individuals, businesses and property.
What makes the Patriot Act debate stand out is that some people in positions of responsibility deny that there is even a Fourth Amendment problem with arbitrarily collecting the metadata of all customer records from telephone companies. This mass collection is not merely an expansion of power beyond previous Fourth Amendment interpretation. It also sets dangerous precedent that all metadata is subject to government's taking without a warrant signed by a judge after a showing of probable cause that the law may have been violated.
"Metadata" is everywhere. It runs our websites and social media pages and underlies the accounting and financial records of businesses. Government is already banging on both of these doors, with the Federal Communications Commission trying to seize control of the Internet and the Consumer Financial Protection Agency claiming blank-check authority over business records. A metadata "exception" to the Fourth Amendment could give government unchecked power over business, free speech, freedom of association, religious liberty and more.
Making matters worse, more than 300 federal statutes authorize government agencies to issue "administrative subpoenas" unilaterally. Bypassing neutral judges and probable cause, government agencies may obtain private records of individuals and businesses, Fourth Amendment be damned.
Those who know history know that government's power and lawlessness inevitably expands unless stopped or reversed. Magna Carta, which turns 800 on June 15, the Declaration of Independence and the United States Constitution are examples of documents that came about when people rebelled against government lawlessness and reclaimed legal authority over government.
These documents are celebrated as monuments of freedom because they place government under control of the rule of law. They demonstrate that government is best when there is paramount law controlling its behavior — when there is a separation of powers, checks and balances and accountability to the people.
Everyone understands the desire to keep America safe, but Americans are annoyed and troubled that some people in positions of power refuse even to acknowledge the Fourth Amendment problem with the Patriot Act and the collection of metadata.
The Constitution's Bill of Rights was written in broad strokes in the context of the era. The First Amendment freedom of the press, naturally extended to radio, then television, neither of which existed when the Bill of Rights was adopted. The Fourth Amendment's protections of "papers and effects," which are private records and property, should naturally extend to metadata. The government's authority to reach metadata of persons and merchants should be read in this originalist context.
To preserve the Fourth Amendment, certain reforms would be useful in clarifying it for the 21st Century, and correcting mistakes of judicial, executive and legislative interpretation. First, there should be no presumption that private records in the possession of private third parties may be taken by the government without probable cause. Also, all warrants — and that includes administrative subpoenas — should be issued only by neutral judges or magistrates to preserve the separation of powers inherent in the Fourth Amendment. Because warrants are issued in chambers, there is no danger in matters of national security.
In Virginia, we have participated in promoting a "21st Century Fourth Amendment" that includes these needed reforms and more, including tightening the definition of probable cause to ensure valid laws are being enforced. These originalist reforms make sense for all the states, and even for the federal government, in protecting our security from Orwellian government.Ken Cuccinelli is the former attorney general of Virginia. Mark Fitzgibbons is co-author with Richard Viguerie of The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society's Biggest Lawbreaker. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.