Judge Kavanaugh and the Fourth Amendment

by Jon Fournier | August 2nd, 2018

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Judge Kavanaugh and the Fourth Amendment

The strongest crit­i­cism of Judge Kavanaugh cen­ters around his rul­ing in the case Klay­man v. Obama, which dealt with NSA war­rant­less bulk data col­lec­tion under the Obama admin­is­tra­tion. Here is the text of that deci­sion. On the sur­face, the open­ing state­ment is strong evi­dence of his pos­si­ble weak­ness regard­ing one of our most impor­tant pro­tec­tions pro­vided in the Bill of Rights.

I vote to deny plain­tiffs’ emer­gency peti­tion for rehear­ing en banc. I do so because, in my view, the Government’s meta­data col­lec­tion pro­gram is entirely con­sis­tent with the Fourth Amendment.

In order to make an informed deci­sion we must dig deeper into the deci­sion and exam­ine the basis for this rul­ing. Here is how Judge Kavanaugh jus­ti­fies this ruling:

The Government’s col­lec­tion of tele­phony meta­data from a third party such as a telecom­mu­ni­ca­tions ser­vice provider is not con­sid­ered a search under the Fourth Amend­ment, at least under the Supreme Court’s deci­sion in Smith v. Mary­land, 442 U.S. 735 (1979). That prece­dent remains bind­ing on lower courts in our hier­ar­chi­cal sys­tem of absolute ver­ti­cal stare decisis.

As you can see from this quote, Judge Kavanaugh is bas­ing this deci­sion on prece­dent from a Supreme Court deci­sion. As a mem­ber of a lower court he claims he is bound by ver­ti­cal stare deci­sis. Here is the def­i­n­i­tion of this con­cept from Cor­nell Law School Legal Infor­ma­tion Institute

Stare deci­sis is Latin for “to stand by things decided.” In short, it is the doc­trine of prece­dent. Courts cite to stare deci­sis when an issue has been pre­vi­ously brought to the court and a rul­ing already issued… A court engages in ver­ti­cal stare deci­sis when it applies prece­dent from a higher court.

This con­cept dates back to Eng­lish Com­mon Law and even back to Ancient Rome. Because of this con­cept it is dif­fi­cult to reach an informed con­clu­sion on how he will rule once he is on the Supreme where they can set new prece­dent on any case.

In the Klay­man v. Obama, Judge Kavanaugh goes on to say:

Even if the bulk col­lec­tion of tele­phony meta­data con­sti­tutes a search, cf. United States v. Jones, 132 S. Ct. 945, 95457 (2012) (Sotomayor, J., con­cur­ring), the Fourth Amend­ment does not bar all searches and seizures. It bars only unrea­son­able searches and seizures. And the Government’s meta­data col­lec­tion pro­gram read­ily qual­i­fies as rea­son­able under the Supreme Court’s case law. The Fourth Amend­ment allows gov­ern­men­tal searches and seizures with­out indi­vid­u­al­ized sus­pi­cion when the Gov­ern­ment demon­strates a suf­fi­cient “spe­cial need” – that is, a need beyond the nor­mal need for law enforce­ment – that out­weighs the intru­sion on indi­vid­ual lib­erty. Exam­ples include drug test­ing of stu­dents, road­blocks to detect drunk dri­vers, bor­der check­points, and secu­rity screen­ing at airports

This state­ment both­ers me a great deal. The framers of the Con­sti­tu­tion believed that free­dom and preser­va­tion of our rights were more impor­tant than safety. It was a com­mon theme. Judge Kavanaugh goes on to say:

The Government’s pro­gram for bulk col­lec­tion of tele­phony meta­data serves a crit­i­cally impor­tant spe­cial need – pre­vent­ing ter­ror­ist attacks on the United States. See THE 911 COM­MIS­SION REPORT (2004). In my view, that crit­i­cal national secu­rity need out­weighs the impact on pri­vacy occa­sioned by this pro­gram. The Government’s pro­gram does not cap­ture the con­tent of com­mu­ni­ca­tions, but rather the time and dura­tion of calls, and the num­bers called. In short, the Government’s pro­gram fits com­fort­ably within the Supreme Court prece­dents apply­ing the spe­cial needs doctrine.

From the text of the 4th Amend­ment you can see that there are no excep­tions for national security.

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.

From this chap­ter of Framers Intent by Thomas K Clancy, you can see that the notion of national secu­rity and safety excep­tions to the 4th Amend­ment are very new. The orig­i­nal intent of John Adams, who wrote the arti­cle of the Mass­a­chu­setts Bill of Rights which became the model for the 4th Amend­ment. was to make the pro­tec­tions as broad as pos­si­ble. Could Judge Kavanaugh have based a neg­a­tive rul­ing in this case on dif­fer­ent prece­dent and still uphold stare deci­sis. Yes, he could have, because there is so much con­flict­ing prece­dent on the 4th Amend­ment and any con­sti­tu­tional con­cept. That is one of the main rea­sons why prece­dent is such a flawed con­cept, which actu­ally vio­lates the Supremacy Clause of the Con­sti­tu­tion. Rely­ing on the actual text and plain mean­ing as under­stood dur­ing the draft­ing and rat­i­fi­ca­tion of the Con­sti­tu­tion are far superior.

I believe that Judge Kavanaugh is weak on the 4th Amend­ment. Based on his rul­ings on every other issue I’ve read so far, he is strong on all other issue. Even with his weak­ness on the 4th Amend­ment, I still believe he is worth sup­port­ing for the Supreme Court. Rand Paul also agrees. Here is what he tweeted on the day I was writ­ing this article:

The strongest criticism of Judge Kavanaugh centers around his ruling in the case Klayman v. Obama, which dealt with NSA warrantless bulk data collection under the Obama administration.  Here is the text of that decision.  On the surface, the opening statement is strong evidence of his possible weakness regarding one of our most important protections provided in the Bill of Rights.

I vote to deny plaintiffs’ emergency petition for rehearing en banc. I do so because, in my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment.

In order to make an informed decision we must dig deeper into the decision and examine the basis for this ruling.  Here is how Judge Kavanaugh justifies this ruling:

The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.

As you can see from this quote, Judge Kavanaugh is basing this decision on precedent from a Supreme Court decision.  As a member of a lower court he claims he is bound by vertical stare decisis.  Here is the definition of this concept from Cornell Law School Legal Information Institute

Stare decisis is Latin for “to stand by things decided.”  In short, it is the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued… A court engages in vertical stare decisis when it applies precedent from a higher court.

This concept dates back to English Common Law and even back to Ancient Rome.  Because of this concept it is difficult to reach an informed conclusion on how he will rule once he is on the Supreme where they can set new precedent on any case.

In the Klayman v. Obama, Judge Kavanaugh goes on to say:

Even if the bulk collection of telephony metadata constitutes a search, cf. United States v. Jones, 132 S. Ct. 945, 954-57 (2012) (Sotomayor, J., concurring), the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law. The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need” – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty.  Examples include drug testing of students, roadblocks to detect drunk drivers, border checkpoints, and security screening at airports

This statement bothers me a great deal.  The framers of the Constitution believed that freedom and preservation of our rights were more important than safety. It was a common theme.  Judge Kavanaugh  goes on to say:

The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004). In my view, that critical national security need outweighs the impact on privacy occasioned by this program. The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine.

From the text of the 4th Amendment you can see that there are no exceptions for national security.

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.

From this chapter of Framers Intent by Thomas K Clancy, you can see that the notion of national security and safety exceptions to the 4th Amendment are very new.  The original intent of John Adams, who wrote the article of the Massachusetts Bill of Rights which became the model for the 4th Amendment. was to make the protections as broad as possible.  Could Judge Kavanaugh have based a negative ruling in this case on different precedent and still uphold stare decisis.  Yes, he could have, because there is so much conflicting precedent on the 4th Amendment and any constitutional concept.  That is one of the main reasons why precedent is such a flawed concept, which actually violates the Supremacy Clause of the Constitution.  Relying on the actual text and plain meaning as understood during the drafting and ratification of the Constitution are far superior.

I believe that Judge Kavanaugh is weak on the 4th Amendment.  Based on his rulings on every other issue I’ve read so far, he is strong on all other issue.  Even with his weakness on the 4th Amendment, I still believe he is worth supporting for the Supreme Court.  Rand Paul also agrees.  Here is what he tweeted on the day I was writing this article:

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