Because I listened to Sen. Kennedy talk to Judge Jackson about "non-enumerated rights" in the Constitution, by which he plainly meant "abortion” doesn't appear in the Constitution, and it made me think of a topic Sen. Kennedy didn't touch on (he kept it rather vague altogether). So let's turn back to the "plain language" of the 4th Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
"Probable cause" is mentioned there; but what is "probable cause"? As Churchy LaFemme once asked in an aside to his friend Howland Owl: "What's a "lb."? How you pronounce it?" The pronunciation has nothing to do with the spelling; and the definition of "probable cause" has very little to do with its bare mention there in the amendment. I'll go out on a limb and say, in fact, this is the only time that phrase appears in the Constitution. So we get no help from the "founding fathers."
And is the way the courts have defined that term over the centuries a matter of policy, or of law? I ask because part of the conversation (it really was conducted in a rather seemly manner, maybe because "prime time" had come and gone and nobody was gonna play any more clips of this stuff tomorrow) was about whether or not "substantive due process," another phrase that doesn't appear in the Constitution, is policy, or not.
Policy, for the unitiated (into the legal mysteries, I mean), being a field the courts are supposed to leave to Congress. Just as Congress is supposed to leave the courts to decide how to run themselves (rules of procedure) and how to determine who is guilty of a crime, or should pay up in a civil suit. Strictly speaking the tradition of British law which prevails in all 50 states (save, somewhat, in Louisiana) allowed courts to make policy through common law, so it's not a bright line distinction. "Thinkers" (I use the world loosely) like Sen. Kennedy like to pretend it is, but that's part of our discussion now.
Back to the 4th amendment: leave aside the definition/application of "probable cause" for a moment, and focus on the "substantive right" expressed by the Amendment. It's a right "to be secure in their persons, houses, papers, and effects" against "unreasonable searches and seizures." This is, in part, where the concept of corporate "personhood" comes in, because you can't seize the papers of a business or a corporation, any more than you can an individuals; not without a properly issued search warrant, anyway. I want, however, to focus on the enumerated categories there: persons, houses, papers, and effects. The first three are fairly identifiable concrete things; the last is a catch-all, so the police can't arbitrarily go through the drawers and cubbies of the roll-top desk I'm sitting at right now, and mess with my pens and watch bands and other non-paper stuff (photographs!) on/in my desk. But what about telephones? Can the police tap my phones and listen to my phone conversations? Why not? A phone is not my house, my person, or my papers. Arguably it's an "effects," but how?
That's the point, isn't it? The court has held that we have a "reasonable expectation of privacy" in our phone conversations. We also have it in our mail, partly because mail is protected by federal law (stealing mail is a crime, even if it's just a party invitation). When we send letters (yes, some of us still do! Some of us still write with fountain pens, too! Get offa mah lawn! Damned punks!), we put them in envelopes, address them to a certain person, and expect the mail carrier to take it from us to them. We also expect no one else to read it along the way, or even when it arrives. That's the basic idea of "reasonable expectation of privacy" which extended the language of the 4th Amendment to private mail. The same reasoning easily extends to phone conversations. Unless the police have a search warrant they shouldn't be reading my mail; unless they have a search warrant, they shouldn't be listening to my phone conversations, either.
This is so expected as a right, a privilege, a protection of our privacy, that we probably think it's a government policy passed by Congress and enforced by criminal sanctions. Some of it is; some of it isn't. The restraint on government is almost entirely court-created. Laws may have followed, but the "policy" came from the courts; and their decisions came from interpretation of that language in the 4th Amendment, and the "expectation of privacy" that amendment created.
Now, what about "meta data"? Everytime you make a phone call, the phone company makes a record. Sort of like the record of key strokes I'm making on this computer right now: the data is created in the act of making the phone useful as a phone. A record is made of what number my phone number called, what time of day the call originated, what time it terminated, and how long the numbers were connected. This is the data the House committee is seeking from many people right now, regarding Jan. 6th. Is there a "reasonable expectation of privacy" in that data?
No, says the court. First, and clearly, it's not your person, house, papers, or effects. If somebody didn't ask for it, you wouldn't even know it existed. It's related to your commercial activity (using the phone line you pay for), but it's not your record: it's the phone company's record. You don't control it, and you can't control it. EOD.
Is that also a "policy" decided by the courts? Not strictly, no. But what would be the difference if it were set by Congress as a matter of "public policy"? None, really; to you or to the law. So when is the court "setting policy" and when is it simply "applying the law"? What would it mean to "apply the plain language" of the 4th Amendment to cell phones? For one thing, it would mean the government could listen to your phone conversations with impunity. And Congress might decide that's a pretty good thing because, you know: law enforcement. If you aren't discussing a crime, what'ya got to hide, right? And if the government hears somebody discussing a crime, they should stop it, right? So where's the harm if they listen in? Or read all your text messages? Or your e-mails sent from your phone? What, is your phone made of paper?
Tug the thread, the whole tapesty unravels. And the arguments about "policy" and "legislating from the bench" are pretty much not about those topics at all (did Sen. Kennedy raise these concerns with any of Trump's appointments?). What the court does is "bad" if I don't like it, "good" if I do. There's nothing more to it than that. Even being more polite to her than when he said Judge Jackson was "eloquent," Sen. Kennedy is not making a better argument than he ever has. But then, most politicians don't make arguments; but judges do. Judges have to.
What's broken now is Justices who think they don't have to make arguments, they just have to rule. That is literally power without any accountability. Because if a Justice doesn't explain their reasoning, they aren't judging, and they aren't living up to their official title. They're just being the boss. And that's one step beyond concerns about "making policy" or even being a super-legislature.
