The right to privacy, the US constitution, your country.

[Mark1031]

In the US most of the fights about so-called “social issues” derived from the notion of a right to privacy. In a 1965 case Girswold v. Conn. the Supreme Court overturned a Connecticut law that banned the sale or use of any type of contraceptive, even to married adults. Many of the other more controversial decisions such as regarding abortion or homosexual activity have relied on this case. Conservatives have criticized this as judicial activism because of course the Constitution does not say specifically that one has a right to privacy. However the court reasoned that there are “penumbras” to the whole idea of liberty embodied in the Constitution that require some level of personal privacy and autonomy over one's own body. For those who argue that this is decided incorrectly is there any place you would draw the line in the government's ability to intervene in your privacy. How about a law that outlawed masturbation? How about a law that prohibited men from touching their own penis, forcing them all to pee sitting down and carefully dabbing with an absorbent tissue rather than shaking? One could outlaw the making of pants with a fly? Now I know this sounds silly but is it any more silly or intrusive than saying that couples can't use contraceptives? While I understand the argument about it being somewhat risky to be “finding” meaning that isn't explicitly written, I think it is also a bit silly to say that the U.S. Constitution would allow or is intended to allow any ridiculous government intrusion on one's personal life.

So the questions are: do you agree with the Griswold case?

If not would you A) favor allowing the government, federal state or local to implement laws as discussed above or B) support a constitutional amendment incorporating some right to privacy?

What would the wording of this amendment be?

For people from other countries, do you have mechanisms for maintaining basic rights, i.e. certain things that even a majority of the population or some local majority cannot impose.

Do other countries have explicit rights to personal privacy expressed in governing documents?

Forget the laws, what is the appropriate level of personal privacy one should have?

 

[Shadylookin]

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.

I suppose one could take the 4th amendment to say being secure in our persons from unreasonable searches and seizures means the government should stay out of our personal lives.

you could also take the 9th amendment to mean that just because privacy isn't specifically mentioned doesn't mean we don't have a right to it

I'm not sure what amendments the supreme court used to justify it, but conservatives that say the constitution shouldn't be interpreted are just fooling themselves. The language of the bill of rights isn't specific or precise and leaves a lot of room for interpretation. For example what exactly counts as an unreasonable search?

Even if you could show that there is no constitutional right to privacy I still don't think violating it is in the people's best interest

 

[NYHunter]

The idea of personal privacy is nothing more than another man made creation. It doesn't really exist as a right. But, what does exist as a right is your ability to claim it and protect it by any means necessary. But, society also has the right to go after what it doesn't like.

Talk of rights always leads to me to wonder what exactly a right is. For example,

You have the right to buy contraceptives but society has the right to ban contraceptives. But in turn you also have the right to buy them illegaly if you chose to. And than society has the right to charge you with a crime.

It is really hard to conclude what exactly rights are when you consider this.
One can claim that you have all the rights in the world because only you really decide what you do, but one can also claim that society has a large influence on what you are capable of doing.

 

[illram]

First of all, I look at it as "what am I allowing the government to do," not "what does the government let me do."

I think Douglas' "Penumbras" make logical sense and don't require such a leap from the actual text as some suggest. In a nutshell, what Douglas says is ""Without those peripheral rights the specific rights would be less secure."

For some of the amendments to have any meaning, there has to be inherent or implied things that the government also cannot do. For example, Douglas alludes to the 1st amendment protections of freedom of speech: does that not also imply freedom to teach, freedom to read, freedom to hear?

If the text is taken too literally it becomes essentially meaningless. That is what I took from that decision and to me it seems reasonable.

 

[GenMarshall]

I dont see how this would curb the Republicans, Bush, and other paranoid neocons to abuse the Constitution and find loop holes just to spy on their own citizens.

 

[Mark1031]

First of all, I look at it as "what am I allowing the government to do," not "what does the government let me do."

I think the Douglas' "Penumbras" make logical sense and don't require such a leap from the actual text as some suggest. In a nutshell, what Douglas says is ""Without those peripheral rights the specific rights would be less secure."

I mentioned the penumbra phrase because it is rediculed a lot by opponents. Aren't most of these things now based on the substantive due process argument which is basically that government can't just do any stupid thing they want but have to have some compelling interest or some such hard to reach threshold before they go messing with people.

 

[illram]

I mentioned the penumbra phrase because it is rediculed a lot by opponents. Aren't most of these things now based on the substantive due process argument which is basically that government can't just do any stupid thing they want but have to have some compelling interest or some such hard to reach threshold before they go messing with people.

Without digging up my 2 and a half year old notes on the subject, yes that's basically the gist of it. It is the bane of many constitutional originalists and not without controversy, and in some ways I see it as a "necessary evil."

I would prefer having some of this set in stone, rather than based on case law which can be overturned by 9 guys sitting in a closed room in DC. IOW, if this stuff gets interpreted in, it can get interpreted out. Or, stuff I don't like can get interpreted in. But for me it's kinda like, I'll take what I can get.

 

[Elrohir]

I have a question of my own. Mark, would you extent this "right to privacy" to cover other things which would logically fit under such a right, but currently don't? For instance, use of illegal drugs? What about animal cruelty or incest, as long as it's on private property where no one can see?

If so, why do you think that interpretation isn't the prevailing one? If not, where do you limit the right to privacy by balancing it with the interests of society in regulating individual action? Do you think there's any limit at all?

 

[Mark1031]

I have a question of my own. Mark, would you extent this "right to privacy" to cover other things which would logically fit under such a right, but currently don't? For instance, use of illegal drugs? What about animal cruelty or incest, as long as it's on private property where no one can see?

If so, why do you think that interpretation isn't the prevailing one? If not, where do you limit the right to privacy by balancing it with the interests of society in regulating individual action? Do you think there's any limit at all?

Of course there is a limit and where I put it is irrelevant. I love the whole idea of the supreme court. 9 people appointed for life watching over things with a document full of beautiful but sometimes vague and contradictory words as their guiding principle. For each of those things I would have to hear an argument really. Rec drugs I don't see as fundemental right, OTOH medicinal pot I think is. Outlawing it is akin to outlawing morphine for pain. Incest among adults is that really a big problem? But I would say the Gov has no interest in who adults have sex with even if its you mother. Animal cruelty is a tough one. I don't really see a government interest. What exactly are the laws?

 

[North King]

do you agree with the Griswold case?

Of course.

B) support a constitutional amendment incorporating some right to privacy?

Already is one:

you could also take the 9th amendment to mean that just because privacy isn't specifically mentioned doesn't mean we don't have a right to it

Bingo. It's pretty clear that the right to privacy is in the spirit of the Constitution.

 

[Mark1031]

This is an interpretation that is in dispute by many. If I remember correctly the 9th ammendment has never been interpreted as such in a controlling opinion. Also the 9th ammendment would not be controling on the state or local government anyway. Basically the whole Bill of Rights comes to you via the 14th ammendment anyway. The most important ammendment to the constitution states: (important part bolded)

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

All of the things you think of as rights you have come to you via the bolded words. They are not very clear and could be reinterpreted at any time by 5 people.

 

[Berzerker]

Conservatives have criticized this as judicial activism because of course the Constitution does not say specifically that one has a right to privacy.

Except when Limbaugh was whining about his medical records being confiscated. As pointed out, the 4th Amendment is the privacy amendment..

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.

No-knock raids made popular in the drug war are considered "reasonable" by the Supreme Court. Even the use of explosives to break in your door is "reasonable"...

 

[I'm Cleo!]

Yes, I think Griswold v. Connecticut was rightly decided, and I think it's a great case. I think that the "penumbra" argument used by Douglas makes a lot of sense -- it's basically a structuralist argument, derived from looking at the rights that are enumerated and how they create a framework of liberty. It's the exact same reasoning used in countless other areas of constitutional law doctrine, like Separation of Powers or sovereign immunity.

What happened is that it got folded into what illram correctly notes is "substantive due process," based on Justice Harlan's dissent in Poe v. Ullman. Roe v. Wade, in fact, relies on both the Griswold structuralist rationale and substantive due process -- Blackmun basically said, "Hey, there are tons of different ways to justify this decision, but the bottom line is that this decision is protected. Rely on whatever you want." It's been criticized a lot, but it may have been the only way for him to get the large majority that Roe had.

In Planned Parenthood of Pennsylvania v. Casey, O'Connor abandoned the structuralist argument and fully embraced substantive due process, defining the contours of the doctrine as protecting individuals' rights to autonomy and to define who they are (Scalia's maligned "sweet mystery of life passage.").

I prefer the structuralist argument. I think it mirrors other well-established doctrines, and doesn't have the unfortunate pedigree of substantive due process, which produced Dred Scott v. Sanford and Lochner v. New York. I wrote about it on an exam in law school, but I don't think the professor liked it . . . at least that's what my grade suggested.

Regarding the limits of "privacy," it depends on larger society. Justice Harlan's dissent in Poe, from which modern substantive due process jurisprudence developed, stresses that the doctrine reflects society at large:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

I just decided to quote it, because he's better than me.

Cleo

 

[Berzerker]

Yes, I think Griswold v. Connecticut was rightly decided, and I think it's a great case. I think that the "penumbra" argument used by Douglas makes a lot of sense -- it's basically a structuralist argument, derived from looking at the rights that are enumerated and how they create a framework of liberty. It's the exact same reasoning used in countless other areas of constitutional law doctrine, like Separation of Powers or sovereign immunity.

Or Hamilton's arguments against a Bill of Rights - the Constitution gives Congress a handful of powers and they are to leave us alone otherwise. We dont need a Bill of Rights because the Constitution already limits federal involvement in our lives. The right to religious liberty and freedom of speech? What power does Congress have to interfere with these? None. Hamilton's 2nd gripe was that enumerating certain rights will be used by morons and charlatans to deny the existence of other rights we take for granted. Or used to anyway...

It basically comes down to this - either you own yourself or the government owns you. Commies and fascists and assorted autocrats think government owns us, well, not them of course. We'll hear them cry FREEDOM when government meddling is making them mad.

 

[Mark1031]

Hamilton's 2nd gripe was that enumerating certain rights will be used by morons and charlatans to deny the existence of other rights we take for granted. Or used to anyway...

Are you calling Scalia a moron. .

 

[Gecko1]

I mentioned the penumbra phrase because it is rediculed a lot by opponents. Aren't most of these things now based on the substantive due process argument which is basically that government can't just do any stupid thing they want but have to have some compelling interest or some such hard to reach threshold before they go messing with people.

Hey, you're in public, PEOPLE CAN SEE YOU!

 

[North King]

If I remember correctly the 9th ammendment has never been interpreted as such in a controlling opinion.

Oh, I know, it just sounded witty.

But it's pretty much been agreed upon by most people that I've talked to who have, you know, thought about this, that the 9th Amendment was made to cover things such as privacy. And given the no search and seizure clause, as well as the multiple rules regarding testimonies, the right to privacy seems well in the spirit, if not the letter of the document.

Also the 9th ammendment would not be controling on the state or local government anyway. Basically the whole Bill of Rights comes to you via the 14th ammendment anyway. The most important ammendment to the constitution states: (important part bolded)

All of the things you think of as rights you have come to you via the bolded words. They are not very clear and could be reinterpreted at any time by 5 people.

Pretty much all Court Cases have been of the opinion that this applies the Bill of Rights to state laws.

 

[I'm Cleo!]

Lots of the important court cases consider the Bill of Rights in the context of state law because most of it has been "incorporated" through the Fourteenth Amendment to apply to the states. Some parts of it still aren't, though, like the right to a unanimous jury verdict of twelve jurors in criminal cases.

Cleo