Senator Rand Paul claims the PATRIOT Act provision allowing government collection of metadata of Americans violates the Fourth Amendment protection of privacy.  Over at National Review Online, Andrew McCarthy blasts Paul as “laughably wrong when he insists the NSA program violates the Fourth Amendment.”

Actually, both of them are wrong.  They rely on judicial interpretations that are inconsistent with the language, purpose, and history of the Fourth Amendment.

The Fourth Amendment protects private property from government trespass.  Senator Paul’s argument is flawed by claiming that the Fourth protects privacy without reference to private property.  The “privacy” doctrine is what allowed the Supreme Court to conclude that government may get private property from third parties, claiming that it has “no reasonable expectation of privacy.”

Government has extrapolated this doctrine beyond the “plain-view” exception to government trespass.  For example, a hacker may not legally get that private property because that is invasion.  When government invades and removes this private property under color of law, that’s totalitarian.

McCarthy relies on a construction that government may search and seize private property in the hands of third parties such as phone companies without a warrant.  That is inconsistent with the law of trespass.  The “trespass of asportation” prohibits anyone from removing private property without consent of the owner. I f a phone company gave my phone records to a private individual without my consent, I’d have a cause of action.

There is a privacy element in the legal protections of private property.  The Fourth Amendment, though, was written to protect private property.  When we view the Fourth Amendment that way, it incidentally protects privacy – but so does the law of trespass.

I agree with McCarthy “that the NSA doesn’t even know your name.”  I’ve commented that the violations of the Fourth Amendment we should fear the most are “administrative subpoenas,” where government may unilaterally search and seize private property without getting a warrant from a judge.  That allows institutionalized evasions of probable cause and creates a “soft police state.”

Administrative subpoenas are what FDR progressives created and progressive judges upheld to keep government’s thumb on commerce.  They are illegal, institutionalized threats to religious liberty, free speech, and private property.  They are irreconcilable with the Fourth Amendment.

McCarthy writes: “Progressives claim the [Constitution] is ‘organic,’ so at least they are honest about the fact that they are changing it – not putting on ‘constitutionalist’ airs as Paul does.”

The trouble is, both McCarthy and Senator Paul rely on flawed judicial interpretations that have effectively amended and weakened the Fourth Amendment, which has created a soft police state in America.  Restoring the private property basis of the Fourth Amendment brings clarity.

A “21^st Century Fourth Amendment” introduced in Virginia earlier this year remedies several incorrect judicial interpretations of the Fourth Amendment and is a good model for all the states and even the federal government.