The Statist GOP vs. Rand Paul

It seems like there is a concerted effort to attack Rand Paul these days for his views on the Fourth Amendment and how the Federal Government is violating it for the sake of security.  People like Andrew McCarthy, Paul Mirengoff and Jen Rubin have all come out with anti-Rand Paul pieces in the last couple of days.  Andrew McCarthy and Paul Mirengoff (who quotes McCarthy) were particularly stinging (partly because I have stopped caring what Jen Rubin things, while I am a fan of McCarthy and Mirengoff) with McCarthy saying Rand Paul wants to promote crime and Mirengoff saying that Rand Paul is ignorant and embarrasses himself.

What did Rand Paul do that was so bad?  So ignorant?  So embarrassing?  He introduced the Fourth Amendment Restoration Act of 2013 which says very simply:

The Fourth Amendment to the Constitution shall not be construed to allow any agency of the United States Government to search the phone records of Americans without a warrant based on probable cause. 

Oh the horror.  How embarrassing, how ignorant!  This will open the floodgates to crime!  Really?  Is it so hard just to get a friggin warrant if you have probable cause?  I really don't see what the big deal about that is.  What McCarthy (who is a former federal prosecutor so he probably naturally isn't so keen on the rights of the accused anyway) is upset about is that Rand Paul considers this to be a fourth amendment issue at all.  He writes:

Paul is referring to the Constitution's Fourth Amendment. The senator apparently did not read the Fourth Amendment before cutting and pasting it into his bill. It requires (in relevant part) that "the right of the people to be secure in their persons, houses, papers, and effects, shall not be violated."

Perhaps Senator Paul will edify us on how it is "clear" that a phone record, owned and possessed by a telephone service provider (not the customer), qualifies as the person, house, paper, or effect of the customer, such that the government's acquisition of it violates the Fourth Amendment. The federal courts have consistently, emphatically rejected this implausible suggestion, holding that government's collection of phone records does not even implicate the Fourth Amendment, much less violate it.

It's amazing how McCarthy can be so obtuse.  I think any reasonable person does consider their bank and phone records to be their business and nobody else's except for the bank or phone company who will be using your data to bill you.  And if it "belongs" to the bank or phone company, why isn't the bank or phone company issued a warrant?  How can we have property expropriated by the government without anyone being issued a warrant?  Because it's "third party property"?  But its not really a third party if one of the parties actually does own the data as McCarthy suggests.  And on the federal court decisions, I'm really not impressed by that.  The federal courts repeatedly ruled that Japanese internment was constitutional as was segregation and most recently, Obamacare.  The courts have really not been a dependable defender of the constitution, repeatedly deferring to executive and legislative power.

The big government wing of the Republican Party needs to wake up.  Defending intrusive government policies that have been endorsed by both W and Obama are not a winning formula.  Neither is attacking the best hope for the GOP.