Anyone claiming to be a “constitutional conservative” should admit that, if we were dealing with the original Fourth Amendment, the case would be over. The reason it is not is “expectation of privacy,” a progressive doctrine the Supreme Court conjured up in the 1960s. Eventually, it dramatically expanded the Fourth Amendment’s carapace. No longer would courts merely enforce from the objective concept of trespass against private property; now the Constitution would be said to reflect the evolving, eccentric, and often contradictory whims of judges about what aspects of life ought to be private.

Here, it is necessary to pause and add that faithful constitutionalists freely concede there is nothing wrong with protecting our legitimate expectations of privacy from a prying government as they evolve with time and technology. To the contrary, it is vital to liberty that those expectations be protected. In our constitutional system, however, that protection is supposed to be added by the people’s representatives in Congress. The role of the judiciary is to safeguard the constitutional guarantee – to protect our persons, houses, papers, and effects from unreasonable searches and seizures. It is not to make up a new Fourth Amendment as we go along, under the guise of an “expectation of privacy” harbored by some supposedly objective person (namely, the judge who happens to catch the case).

The NSA program is a creature of statute that addresses privacy concerns which, while entirely legitimate, are not constitutionally protected. It permits the collection of information but imposes safeguards that severely limit what the government may do with that information. Reasonable minds can and do differ on whether those privacy safeguards are adequate. But if they are to be modified – or if the program is to be scrapped because its security benefits are outweighed by its privacy costs – that ought to be done by Congress, not by judges pretending that the Fourth Amendment says something it does not.