The Fourth Amendment means ‘no’ on Kavanaugh

Whenever I hear the name Brett Kavanaugh on television, it is always followed by the name Christine Blasey Ford, the phrase “sexual assault,” and the calls of #MeToo activists for Kavanaugh not to be confirmed.

The accusations against Kavanaugh are disturbing, and I am thankful there is an FBI investigation.

I am less thankful, however, that Democrats are lifting these allegations above everything else in the confirmation hearing. This is distracting us from another major issue.

Although I am a Republican, I philosophically identify as a libertarian. Protection of civil liberties and economic freedoms, as well as an anti-war mindset, are central to my political worldview. In my three years as a activist, and during an unsuccessful campaign for state representative, people have questioned me on one issue more than most: the Fourth Amendment, warrantless government surveillance and collection of metadata.

The Fourth Amendment, which is part

of the Bill of Rights, is unambiguous: 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.

Ever since former Central Intelligence Agency employee Edward Snowden’s revelations about the National Security Agency’s mass warrantless spying in 2013, issues of privacy and surveillance have been at the forefront of the public’s conscience. Many people lost trust in their government and called Snowden a hero. Others, however, supported the government's actions. One of those people just so happens to be Judge Brett Kavanaugh.

In 2013, the case of Klayman v. Obama was brought before the United States District Court for the District of Columbia. The plaintiffs in the case argued that the government spying programs that involved the interception of domestic phone communications were illegal. Judge Richard J. Leon ruled that the bulk collection of metadata likely violated the Fourth Amendment. Metadata is all the information about your phone call — time, location, duration — but not the conversation itself. Leon would go on to say in his ruling that, “Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment.”

However, the case was appealed to the D.C. Circuit Court, which vacated the lower court’s injunction. Kavanaugh wrote a solo concurrence.

“In my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment,” he wrote. “Even if the bulk collection of telephony metadata constitutes a search, the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures.” He continued: “The Government’s program for bulk collection of 2 telephony metadata serves a critically important special need — preventing terrorist attacks on the United States. In my view, that critical national security need outweighs the impact on privacy occasioned by this program.”

Kavanaugh is on record stating that he believes it is acceptable for the government to violate the Fourth Amendment because national security is more important than our natural and constitutional rights.

It’s the same excuse used to justify the entire overreaching Patriot Act of 2001 , not to mention those random Transportation Security Administration patdowns at the airport. If you don’t like it, proponents usually say something along the lines of: You don't have to worry if you aren’t doing anything wrong.

This concerns me, and it should concern all others, too. As Founding Father Benjamin Franklin once said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

This is why I, as a Republican, do not support Kavanaugh’s nomination to the Supreme Court, and I question why President Donald Trump is breaking his promise to only appoint judges who would interpret the Constitution as written.

Now, you’re probably asking: “Why are we about to confirm a judge who doesn’t believe in the Constitution, and why is nobody talking about it?”

I believe the culprit for this is clear — the Democratic Party. They want to use identity politics to ride a so-called Blue Wave to victory this November rather than make fundamental arguments about Kavanaugh’s judicial philosophy and fitness.

Our politicians should be focusing on the real questions of constitutional law — the actual job that Kavanaugh is being nominated to serve. Instead, the Democrats have turned the entire confirmation hearing into a circus, a drama about whether or not a judicial candidate sexually assaulted three women in the 1980s.

If this is how our elected officials act, you can’t help but feel like Franklin was right: We deserve neither liberty nor safety.

Ehmling is a political activist, blogger and former candidate for Texas state representative in District 16.