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April 22, 2006


I think it's a little dangerous to assert a right to privacy now, because that would imply that we didn't have it before and all the Constitutional rulings based on that are erroneous. It's also dangerous to enumerate them, because then it can be argued that what's not spelled out isn't covered.

If an amendement is needed, any such amendement should reinforce the general right we've already assumed, then make speficic one(s) explicit.

Libby, I think you're articulating a widely-held view. I ran across it here, in a blog entry from April 2003 by a polisci professor. He comments on Matthew Yglesias' statement, like yours, that "proposing a constitutional privacy amendment might be seen as an admission on the part of privacy advocates that such a right does not exist in the un-amended constitution."

He rebuts that the same argument was actually made by the framers who were opposed to enumerating any specific rights at all in the Bill of Rights for the same reasons, and cites Hamilton in Federalist 84: "I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous."

I can appreciate the argument. I think I fall on the side of saying that the right to privacy is on shaky enough ground already that it wouldn't hurt -- and I also feel that it is more a political/PR argument than an argument that would hold legal standing. But I do see what you're saying.

I think your list of issues is a good start, although I think any text of an amendment should not be specific, but instead broadly-written. Hasn't "freedom of association" been folded into the First Amendment by court decisions? Perhaps a good place to search for language incorporating this right to privacy would be Justice Harry Blackmun's famous and eloquent dissent in Bowers V. Hardwick.

I don't share Libby's fear that merely proposing an amendment is acknowledgement that "there is no such right" contained in the Constitution. The rights are there, sayeth the Supreme Court. But such rights as can be "folded into" the Constitution through court decisions can also be "folded out of" the Constitution by later courts. I think from a long-term perspective, an explicit right to privacy in the Constitution would be a good thing. I think we would need a long and comprehensive campaign of voter education on this issue before we try and make it into the left's equivalent of the "anti-gay marriage ballot initiative". (In other words, I don't think this issue will become our silver bullet at the ballot box.)

It is almost impossible to construct a right to privacy that does not, by definition, render most all conspiracy laws unenforceable (as conspiracy can consist of nothing more than a private conversation between two or more individuals.). This is not a bad idea, but it must be considered. So much of our current law already infringes on what a reasonable person thinks of as "privacy" that any simply worded statement of a right of privacy would nullify huge swaths of 'settled law'. Which i think most lawmakers are reluctant to do.

28th ammendment: All citizens have a reasonable expectation of privacy that must be respected and enforced by the federal and state governments.

-the word "reasonable" is important since it allows government to intrude when warranted (as in a criminal investigation)-- from a legal standpoint, intrusion must survive 'strict scrutiny'
- this wording also means that you've got a reasonable expectation of privacy from corporations - which must be enforced by government

ps 29th ammendment: "Only individual human beings are garunteed the rights enumerated in the Consititution of the United states."

Surely we can agree that the right to privacy is not unlimited. There is no right to privacy when one sits at his computer trading videos of nine-year old girls being raped and tortured. Agreed? Just where, then, do you draw the line? Nineteen year olds being raped and tortured? No privacy if it is actual but protected if it is simulated? Standards for distinguishing between actual and simulated? Burdens of proof?

Right to privacy in your home? to store fragmentation bombs? to abuse your wife?

The only true protection for privacy is a reasonable government, a legislature and an executive that recognize that the vitality of our civic culture depends on individual privacy. Privacy is better protected by democracy itself, on which privacy depends, than on any attempt to codify it. We get the privacy we demand.

the only true protection ...

thats nice.
should we just wait for that to happen?
or should we fight for it?
maybe we could do that by fighting for a privacy ammendment.

p.s. nice straw men


Shorter version: a truly protective privacy amendment is not possible.

Any attempt invariably results in such vague langauge as to be unenforceable, leaving citizens pretty much where we are now, arguing over what reasonable means and whether it applies to the private porn, what porn is, and what is not porn.

Write the exact language proposed for a privacy amendment and you'll see.

Ultimately, it simply comes down to the following: you have to have an obvious, incontrovertible hook written into the constitution that you can hang a legal framework from. It is uneccessary to define all the details. That will be done later via democratic and legal processes.

eg: the constitution has a due process clause.
due process is not defined, but over time a legal framework has been built up to achieve effect of due process.

Due process...good example.

Due process only applied to limit the federal government until the fourteenth amendment and even then it was not applied to the states until the New Deal Era, hesitantly, or until the Warren Court, fully-throatedly. Since the 1960s the rights protected by due process have steadily shrunk. Look at the Strickland definition of the right to effective counsel. It has become a complete joke. There is a case argued recently in which the Court was asked to permit a state to deny a defendant the due process right to a lawyer of his own choice and force the defendant to trial with a less competent lawyer of the state's choosing. The right to due process is slowly eroding under the governments we have elected during our generation.

A new right to privacy, vaguely worded, would from the beginning be interpreted by this government and this Court to provide fewer privacy rights that we have now. It would be an open invitation to interpret freshly privacy rights. Do you trust the Roberts Court to do that?

Privacy is political and it is a great political issue for Democrats but a privacy amendment is not the way to go.

Not a lawyer, so I don't know any details, but I don't dispute any of your statement other than the following:
its true that a constitutional re-write will invite re-interpretation of privacy rights, but having it written bold faced in the constitution means that Roberts and Co will have to tortureously contort themselves to deny the basic thrust of law, and I don't think they'd dare to do it after we'd built up enough support get it passed in the first place.
Secondly, its pretty damn clear that the primary reason Alito and Roberts are on the court is to specifically re-interpret privacy issues (+be corporate friendly). So, I would respond by asking, since we will be re-interpreting privacy anyway, do you want to do it with the current legal patchwork, or would you rather have an simple, incontrovertible ammendment on your side?

"Simple, incontrovertible amendment"...which is what, precisely?

Just a "reasonable expectation of privacy" is worse that nothing. The Roberts Court will hold that it is not a reasonable expectation of privacy to murder a child in utero and by this means the newly enacted privacy amendment will have repealed Roe. Do you doubt that?

To avoid that possibility, you must start enumerating the specific rights to privacy, and state explicitly that a woman's right to reproductive freedom at all stages of reproduction may not be infringed by goverment. Assuming that such an explicit right to privacy could even pass, you would start down a long path of enumerating specific privacy rights and any you omit are, presto, no longer protected privacy rights. Now, you are back to my "strawmen" as you call them. When you are explicit, how do you differentiate between what is protected and what is not protected on your home computer? You have to be even more explicit and before long you have written a tome. The more you write, the more issues you raise, and the more difficult you make ultimate passage.

This entire idea is a fool's errand. A waste of political energy and capital. Much better idea: elect a progressive congress and president and keep them. Hard to do? Yes, but not as difficult as crafting any truly protective privacy amendment that could ever be enacted.

remember to specifically mention the StatesHere's the next one you should work on

no person who serves in an office of public trust or authority it the United States, or in any individual State, shall recieve any monetary donations, or any other gifts from any source whatsoever, except wherein the public official must conduct a campaign for election to office

in cases where a candidate for office collects donations for a campaign, no person shall donate money or any other gift unless the person donating money is legally entitled to vote in the election in question

In no case may a political candidate recieve gifts or donations from any entity except bonified citizens of The United States who are able to vote

that ought to straighten out most of our problems

California has had a right of privacy in its Constitution since 1972. Here is how the Calif Constitution begins:

"SECTION 1. All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy."

The addition of "privacy" was done by ainitiative, with ballot arguments that stressed protection of private information. It has been on the books for 32 years, during which time it has been interpreted to make illegal undercover police snooping on political activity, cover a woman's right to terminate a pregnancy and provide protections on the dissemination of personal information. It generally functions as a a limitation on the ability of the legislature to enact laws that infringe on personal privacy, in the same functional way asa the equal protection guarantee or protection for for fundamental rights under a due process analysis. It has not been used to make legal anything which common sense suggests shouldn't be. I think this whole body of law would serve well to conter many of the arguments made above.

We did it before Roe v. Wade was decided but after the Cal Supremes had declared our abortion laws invalid. It was not used for that purpose. The original impetus was protection of private information, but there has been a consensus (except among anti-abortion advocates) about how it has been used.

I would strongly suggest that interested folks do some research on the Ca constitional provision.

You're right that abortion would be harder to defend under that umbrella. But thats because its a unique situation that should not only be argued under the ruberik of 'privacy', but should also be argued under the ageis of 'self-determination'.

The right to privacy is much bigger than the abortion debate.

You're big on the political fight for progressives and active democracy, so how to do it? If we want people to think privacy is important to us, then this is a good way to show it. If we don't, and its obvious that Alito & Roberts are going to eviscerate privacy at the court, what are we saying to the voters? Fighting for things like this is progressive democracy.

You're also big on the fact that the ammendment must be 'protective'. Well the constitution is written on a piece of paper. What does it protect? It only protects to the extent that people are willing to abide by it (see Bush, G. W.). No ammendment in the constitution is 'protective' to the extent that you seem to want. So yes, the court may try an endrun around the ammendment, but they'd do that to the principle in question anyway, so what have you lost?

So, yes. We need a privacy ammendment, with a simple wording of the prinicple, that will be fleshed out over time. And in the meanwhile, fighting for this ammendment communicates to the voters that we're serious and that this is one of the principles we're willing to stand up for. Considering the extent of intrusion into our lives by government and to a an even greater extent by corporations, I'm positive that many, many non-political people will consider a privacy ammendment a GOOD IDEA.

I didn't know that about the California constitution, and I agree with you, Mimikatz, that anybody thinking of a federal amendment should ponder this one, including how it's been interpreted.

But, I must admit that my own inclinations and the discussion so far on this thread tends to make me think maybe the whole idea ought to be scrapped. Specifics cause problems, vagueness causes problems, and one slip of the comma, the misplaced adverbial clause, the unclear phrase, and we'll wind up with another Second Amendment. The dispute over how that came to be written has a lot in common with how the 28th would probably turn out.

I've read lots of your stuff (and I'm very happy you're still around to share your wisdom). So I'm curious... What do you think of the idea that pushing the ammendment is actually a good way to communicate with voters. It fits into the politics of contrast advocated by Armando, as well as pushing the boundry on an issue that is only going to be more important as time goes on (intrusion by private interests).

Two ideas to flesh out what i just wrote.
1) Whats wrong w/ a debate like the one on the second ammendment? The debate will continue until a clear, overwhelming majority opinion emerges. Its how we've come to have a living constitution.
2) I think the right to privacy is more important now than at any other time in history. Its true that fair dedicated government officials are our best bet against government intrusion, and thats been true for the last 200 yrs. If government intrusion was my major concern then I wouldn't feel so strongly. What has changed is that governments aren't the worst offenders in the field of privacy violations anymore, and fair dedicated government officials are no protection against corporations.

Last comment before my daughter and her friends arrive for the preprom photo-shoot.

MimiKatz: the California experience is instructive. That the 32-year old amendment was fleshed out by the court's is key. During that time, California had an extremely progressive Supreme Court, the best state court in the nation. It's precedents are still important.

So, think what that would mean in the parallel federal situation in 2006. It is sobering to think how such a vague term as "privacy" would be interpreted now. You have to take your amendment to the courts you have, not the courts you wish you had, to paraphrase someone.

Thanks to all for the great discussion. You've given me a lot to think about & I'm just sorry I had to go out this afternoon and not chime in more (well, maybe I'm not bad enough yet that I really wish I had been blogging rather than outside -- but I wish I could have done both).

I'll try to write another post this week on the Privacy Amendment idea, probably summarizing the discussion so far and going into how it's worked in California as Mimikatz (and others in this subthread) suggested.

One distinction that is becoming clear to me is the equivalent of the 4th's "search and seizure" -- a difference between the gov't monitoring individual behavior (and aggregating or distributing that data, as in the information privacy of CA) and the gov't restricting individual behavior. Those are two different kinds of privacy.

The other point that seems to be missed here is that a very wide variety of behavior can still be made illegal by states -- everything from porn to drugs to murder, as you like. But it makes sure Congress and the President don't have those powers to regulate individual decisions.

Obviously I'm still thinking this through. And indeed the whole idea may very well be better off scrapped -- but I just want to play it out a little farther and see what I learn.

Nathan, I think the debate on the Second Amendment before the Constitution was approved was terrific. But all the arguments wound up delivering a poorly worded, badly punctuated sentence about which the debate ever since has been sophistic and oftentimes nonsensical. I say this as a long-time gun-owner who doesn't buy much of the rightwing's view of the Amendment.

I agree that the privacy issue is important, even if when to give birth and when to die were the only issues at hand. I'm just not sure I would trust the Congress, the state legislatures and the courts to make of it what I would like, or could stomach.

In some sense I'm advocating a more limited understanding of the right to privacy, one in which a person has an expectation of privacy from the government and from private interests (especially when not in the public sphere). Privacy regarding their personal choices (such as which cereal they buy or what goes on behind bedroom doors), or privacy of their medical records (so that insurance companies don't use that information to eliminate all risky clients). I truly believe that with the changes in technological scale, we are going to see unpresedented invasions of privacy in the next two decades and we MUST get out in front of that. I'd actually say its already happening now with the automated wiretapping, and RFIDs.

Not that I don't think when to give birth and when to die aren't related to privacy, but I think those issues are better discussed as an example of the right to self-determination (aka the persuit of happiness).

1 more thing: you don't get to choose which court this fight (between intruders and privacy advocates) is argued in when the opposition is pushing the issue - you simply have to put up a stand and fight in whatever court you've got. And the fact is they are pushing the issue right now: abortion limitations, automated wiretapping, internet filtering, tracking of customers, data mining, etc. These have to be fought now, later will be too late. And the truth is that enough Democrats are compromised that we can't win the fight quietly in congress. So ... a right to privacy ammendment brings all of these out into the open where we can have a vocal, vigorous fight in which the vast majority of voters (even if they don't vote Democratic) agree with us!

i gotta figure out how to use spell checker on blogs

We don't need an amendment. The Bill of Rights is not a list of the rights that we've been granted by the government. It's a list of the rights that the founding fathers felt were most important to be specifically protected at the time.

The Declaraion of Independence says we are endowed with unalienable natural rights, and among these rights are life, liberty, and the pursuit of happiness.

The Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In other words, just because a right isn't specifically mentioned in the Constitution doesn't mean we don't have it; the presumuption is that we do.

In Griswold v. Connecticut, the Supreme Court ruled that there is an inherent right to marital privacy in the Constitution.

We already have the right to privacy. We don't need an amendment.

A privacy amendment would open up too many cans of worms - particularly in cultist/fundamentalist religious communities, which would love Constitutional protection for things like forced polygamy and withholding medical treatment from children. The effect on domestic abuse cases in general could be chilling. Even if the abuse isn't protected by the Amendment, since it violates criminal law, investigating abuse cases would become more difficult than it is already, since the accused could claim the investigation itself violated their Constitutional right to privacy in family matters.

And a proviso that "protection of privacy in family matters does not extend to violations of criminal law" would only get us right back where we started, depending on which "family matters" Congress or SCOTUS decides to criminalize (end-of-life decisions), or recriminalize (abortion, birth control).

croatoan, as I tried to argue here, there is of course a privacy right currently derived from the 9th (& others) and from Griswold (& others) (so far I haven't seen the Declaration cited as a legal source..!) But as Sen. Coburn points out at that link, our privacy right is applied inconsistently -- if women have privacy of their bodies (Roe) & consenting couples have privacy in the bedroom (Griswold, Bowers), how is prostitution still illegal? The right to privacy, as Alito says, is not spelled out but is an interpretation of the Constitution -- and one that only began about 40 years ago. Obviously I agree with you that it's the right interpretation; I just don't have your confidence it will withstand simultaneous assault from all 3 branches of gov't!

CaseyL, that is basically the problem in a nutshell. How to give good people the privacy to do good things, without letting the bad folks go hog wild. On the other hand, if there weren't already a "freedom of religion" clause in the Constitution and I were suggesting putting one in, someone could have raised the same objection you did about cultists, etc. -- yet somehow we have muddled through anyway!

"We already have the right to privacy.
We don't need an amendment.

That is the way I see it.  Some sort of broad and general declaration on the subject added to the constitution at this point would give cart blanc to U.S. Supreme Court to toss out all the existing cases regarding privacy --  based as they were on legal reasoning whose weakness was recognized by the need to pass such an amendment.

Then our current court should start from scratch (without a lot of pesky precedents to constrain it) and come up with a whole new body of Post-28th-Amendmet doctrine on the scope of privacy.  It would be madness to invite this.  The only answer is to elect law makers and presidents who respect privacy and make them appoint judges who do too.

ok, maybe you folks are convincing me -- we already have a right to privacy... so, in 200 words or less, what is it??

I'm not an expert on the legal side of privacy rights, but I do feel strongly about genetic discrimination.

I've felt that a protection against genetic discrimination would get wide public support, and could easily encompass gender, race (maybe age in a stretch) as well as the primary application toward protection from abuse by insurance companies.

There have been preliminary efforts toward protecting against genetic discrimination in the Senate but they've stalled there.

I guess I'll add that medical privacy would also be a broadly popular issue with the public as part of a privacy amendment.

Florida passed a privacy rights constitutional amendment in 1980 by a large majority. It provides: Section 23. Right of privacy. - Every natural person has the right to be let alone and free from government intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law.

In 2004, an initiative passed by a large majority allowing the legislature to require parental notification of abortion.

chad, thanks for that -- very helpful. I will include it in my reading when I look into how CA handles it. Just wanted to let you know I saw your comment & appreciate it.

I still think that the very process of getting a privacy amendment into the constitution will weaken the privacy rights we already have, with the risk that it fails to pass.

As I understand it, our right to privacy is in the 4th amendement ("unreasonable search"). I could be wrong.

I think the abortion problem is that the ruling was based on a right to privacy - a weaker footing than if we had a constitution that defined life as beginning at birth. Therefore, if we're going to run the same gauntlet, why not do exactly that? Define when "constitutional life" begins! Abortion then becames a matter of one constitutionally protected life (the mother) vs an unconprotected one (the unviable fetus).

Finally, I think the greater social problem wrt privacy right now is that our private information so often passes through [other] private hands and is not protected from anyone - corporations and governments. There need to be better laws for this. But perhaps the constitution could be amended to define what "expectation of privacy" means.

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