The Non-Existent Right of Privacy...

[Walt Sherrill]

I’ve read repeatedly that there is NO RIGHT OF PRIVACY in the U.S. Constitution. I heard that statement again, recently, in a LAW & ORDER episode I was watching. (That program sometimes does a good job of addressing Constitutional issues.)

So… this is about the non-existent right of privacy. I'm thinking out loud. Help the think it through.

Amendment IV
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 accept that the Constitution is, first and foremost, a document limiting the power of government. Originally, it was apparently intended to limit the power of the Federal government, but over time it has come also come to limit the power of the states, as well.

The Fourth Amendment addresses limits on the power of government to impose on the private property and households of individuals, saying, in effect, that government can’t enter your house, take your property, go through your effects, or perform an unreasonable search, etc., except with a legal justification that is well defined.

The Fourth Amendment seems to say to me that the Constitution limit’s government ability to impose on what most of us would say is our “privacy” – our private property, our personal effects, and the things we want to keep confidential.

If it's wrong for government to involve itself in (for sake of this discussion) what I would call priivate matters/privacy, are we then required to assume that ONLY GOVERNMENT is so enjoined?

If there is no Constitutional Right to privacy, doesn't that mean that other non-government entities or individuals CAN (any entity not addressed by the Constitition) come in, snoop around, pilfer, etc. and not keep it in confidence? If "privacy" exists in our relationships with priests, medical people, and attorneys (regardless of probably cause), why doesn't it exist elsewhere in a more limited form?

That doesn’t seem rational. Just as the right to life isn't something that is protected only when GOVERNMENT is the one doing the killing...

I think there is an implicit recognition of a right of privacty in the Fourth Amendment (and om other practices, religious, medical, and legal), but it just hasn’t been recognized for what it really is…

I’m curious about what the various students of the Constitution here, have to say on this matter.

I’ve read a lot, but never really seen this addressed. Maybe I just missed it.

 

[Tory]

You missed it

"I think there is an implicit recognition of a right of privacty in the Fourth Amendment (and om other practices, religious, medical, and legal), but it just hasn’t been recognized for what it really is…"

It HAS been recognized for the past 40 years. The implicit right of privacy acknowledged by the express language of the Fourth Amendment was recognized by the Supreme Court in Griswold v. Connecticut. The exact term used was "penumbra."

 

[Walt Sherrill]

When I recently read Griswold, I saw a reference to the penumbra of a privacy right from the FIRST Amendment, and elsewhere in a concurring opinion, to the NINTH Amendment, but saw no reference to the FOURTH as a penumbra. Certainly nothing specific (but, then, penumbras aren't likely to be specific, are they?)

There was a forceful dissent that talked of the First, Third, Fourth, and Ninth, but specifically as a limit on government action.

Griswold itself seems to be addressing specific MARITAL RIGHTS which have a private nature -- and that very narrowly defined type of privacy was upheld. It still seems to be something much less sweeping than I'd like to see.

Guess I need to do some more reading on this topic, and Griswold may be a good place to look further.

 

[musher]

The problem, I think, is that we have forgotten that the Constitution is a document which grants specific powers to the government. This is in contrast to the concept that the Constitution limits the powers of government. The difference is profound. To attempt to list the limitations of power is a futile task. No matter how exhaustive the list one must always worry, "Did I miss something important?" In contrast, to list the powers granted is a relatively simpler task. "Shall we allow the government to do this or to do that?", we ask. Deciding each point on its merits, we arrive at a list of powers we believe the government should have. We need not worry about having "missed" the protection of a right, because we have conciously granted each power in the list. No other powers can be assumed, if the citizens do their part.

The founders realized that government, by its nature, will expand its control without limit, if allowed. They had just fought a war with a government that assumed powers when convenient, unrestrained by any enforceable contract. Their hope, was that by defining the specific powers allowed to the government and allowing that government no powers not specifically granted, that they could preserve the freedom they had won, for a time. When exiting the Constitutional Convention in Philadelphia, Benjamin Franklin was asked "Well Doctor, what have we got, a republic or a monarchy?" "A republic if you can keep it" replied Franklin.

We have, I fear, been proven unable to keep it. To ask whether there is a 'constitutional right to privacy' is to turn the matter on its head. Rather, you should be asking, "Where in the Constitution is the government given power to invade the privacy of a citizen? What are those powers?"

I believe the objections of the federalists to including a bill of rights are proving precient. We have indeed begun to interpret that list as a list of rights granted to the citizens as was originally feared, tenth amendment notwithstanding.

Well, that's one citizen's opinion at any rate.

 

[The Real Hawkeye]

Musher has it exactly right. Could not have said it better myself.

 

[Flyboy]

Secondly, the Fourth Amendment cannot be translated into a general constitutional "right to privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. 4 Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. 5 But the protection of a person's general right to privacy - his right to be let alone by other people 6 - is, like the [389 U.S. 347, 351] protection of his property and of his very life, left largely to the law of the individual States. 7

KATZ v. UNITED STATES, 389 U.S. 347 (1967)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=389&invol=347

An interesting read--Katz is the decision that forced government to get a warrant to engage in wiretapping. Prior to Katz, Olmstead v. United States (277 U.S. 438) was controlling, and said no warrant was necessary. The Court also discusses instances of national security, but I'll not spoil the surprise (I also don't know if that portion is still controlling).

 

[Standing Wolf]

Rather, you should be asking, "Where in the Constitution is the government given power to invade the privacy of a citizen? What are those powers?"

Well said, musher!

 

[Walt Sherrill]

I don't disagree with Musher's point about the nature of Constitutional Rights. But I would argue that NOT HAVING A BILL OF RIGHTS would not give us anything greater than what we have. (I understand the argument, but don't see the practical alternative.)

The argument seems to be that we shouldn't need government to protect these rights -- they are ours without the force of government. They're your rights until somebody bigger than you (maybe with a gun) says they aren't... unless you find a bigger gun (ala The Old West), or somebody or something helps you assert the freedoms you want to retain. That somebody can be a friend, a community, a government, or your own BIGGER GUN.

Let's say we didn't have a BILL OF RIGHTS. What are the practical consequences?

 

[Aguila Blanca]

If it's wrong for government to involve itself in (for sake of this discussion) what I would call priivate matters/privacy, are we then required to assume that ONLY GOVERNMENT is so enjoined?

Yes.

I think it is clear that the 4th Amendment constrains government. Private entities and individuals are enjoined from meddling into your property by laws against, for example, trespass. But the amendment itself constrains only the government.

Since it says that "the People" shall be secure ... and goes on to discuss searches, warrants, seizures, and does NOT specify that it applies only to the federal government, I believe it is logical, reasonable, and correct to say that it applies to the states (and towns) as well as to the Feds. The old dudes who wrote this stuff knew how to string words together. When they meant to enjoin only the Federal government, they said so -- as in "The Congress shall enact no law establishing a state religion." That is plainly a lot less broad than "the People shall be secure ..."

 

[musher]

I am somewhat comforted that I am not alone in my opinion!

I am disturbed that my opinion seems to be on the fringe these days.

 

[Art Eatman]

musher, too many of our voters have bought into the view that government is competent and wise. The media generally go along with that view. Think of FDR and LBJ and their programs which in essence create Big Nanny and Surrogate Daddy.

Bush grew up in a family of government-service people, within LBJ's "Great Society". He assumes government CAN and SHOULD solve social problems. This seems to apply not only to the more liberal Democrats, but to the NeoCons as well.

As example, read any newspaper article where they talk about a failure to pass some new system for fees, or to raise taxes. The phrasing is along the lines of "This will cost the government..." Cost? Foregone income is a cost? Duh? Further, the tone of the article will imply that any level of government has a right to our money, to be taken as tax dollars. Government has a RIGHT? Again, duh?

In our present day structure of government by opinion poll, rights are only what the majority allows. The Bill of Rights only applies to what's popular at the moment, and privacy is right in there: Sometimes important, sometimes not. "Well, if you're not doing anything wrong, why do you care?"

Art

 

[musher]

Geeze Art, now I'm REALLY depressed.

Seriously though, I think you're right. We've abandoned the cold expanse of free will in favor of the comfort of bounded decisions. The only thing left is to decide which channel to watch. Pitiable, I regret I came at the end of this experiment rather than at the beginning.

 

[Flyboy]

musher, I agree with you, in principle. My SCOTUS reference was pragmatic, not theoretical, though there is some legitimacy to the part about such things being left to the individual states: our federal government was supposed to be limited, with the real power left to the states. Ideally, they'd be no more restrictive than the (limited) Feds, but the whole concept behind the "great experiment" was that the States would be able to try different ideas and learn from each other.

Sadly, that power has been usurped by the Feds: through various means--expansion of the interstate commerce clause, Federal highway funds, and lots of others--the Feds have enforced "uniformity" upon the States, and destroyed the experiment. Further, they've encroached upon the powers left to the States, and completely trashed the Tenth Amendment. So, while I agree with you that the Feds ought to just Leave Me Alone, pragmatically speaking, there is very little (legally recognized) right to privacy.

More's the pity.

 

[musher]

I don't disagree with Musher's point about the nature of Constitutional Rights. But I would argue that NOT HAVING A BILL OF RIGHTS would not give us anything greater than what we have.

Walt, The point I'm trying to make is that the bill of rights has become a sort of red herring. Without the bill of rights, the focus (perhaps) would have been on "what powers were granted to government." Addition of the bill of rights, has changed the conversation to "Is that right granted by the constitution."

A fatal distinction in my opinion.

 

[Art Eatman]

musher, consider Jeff White's thread about Do-gooders and where we've come over these last 70 years:

http://www.thehighroad.org/showthread.php?t=195990

Art

 

[musher]

I agree with Jeff, but worry that we've passed the point where his opinion (or my own) matters.

We can't blame government. Its nature is as it is. "A terrible servant and a fearsome master". The prevalence of the "do gooder" is a failure of the citizen not the government.

WE have let it go. We hold the blame. We were given the possibility of holding freedom for our children and we traded it for protection from the insurance industry and reality TV--and we didn't even get that. 3 squares and a bed isn't much worse.

Still I hope there's a frog or two left a bit uncomfortable, ready to hop. It didn't really take that many...last time around.

 

[Graystar]

I’ve read repeatedly that there is NO RIGHT OF PRIVACY in the U.S. Constitution.

Are you saying that the only rights that exist are the rights listed in the Bill of Rights?

What about the Ninth Amendment?

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

 

[musher]

My SCOTUS reference was pragmatic, not theoretical

Flyboy, I confess I find the disconnect between the "pragmatic" decisions of the court and the "theoretical" underpinnings of the Constitution--disturbing.

 

[Jeff]

Hmmmm... I thought the Roe v. Wade decision (1973) determined the Constitutional right to privacy.

 

[silicon wolverine]

You have to take what you see on those TV shows with a grain of salt.. Many of the tactics they use would never fly in the real world. My particular favorite was the search of an aprtment wihtout a warrant and the seizure of some videotapes. the judge ruled that the defendants rights werent violated because it wasnt his apartment. In the real world that would be shot down in a heartbeat as an illeagal search and inadmissable evidence.

SW

 

[musher]

the Roe v. Wade decision (1973) determined the Constitutional right to privacy

...As the emanations from the penumbra of the shadow cast by the bill of rights.

My point is that there is nothing in the Constitution that empowers the federal government to invade your privacy, except in defined circumstances.

To suppose that your rights depend upon a shadow cast by the bill of rights is to interpret the Constitution in a distorted light. The Constitution does not define rights of the people, but powers of the federal government. The powers of the state are a different issue.

It's an important distinction that bears repeating. The Constitution does not define rights, it grants powers.

I concede that the supreme court has repeatedly made such rulings, but to claim there is a "Constitutional right" to anything, is to implicitly accept a view of the Constitution which I believe to be flawed.

Of course, I'm still waiting for someone to pay me $400/hr for my views, so you can take'em or leave'em!

 

[Walt Sherrill]

Of course, I'm still waiting for someone to pay me $400/hr for my views, so you can take'em or leave'em!

LOL...

 

[boofus]

It's in #9 and #10. All rights not enumerated to the federal government or reserved for the states belong to the people.

Privacy is not an enumerated power of the federal government. Most state constitutions don't give states the power of privacy. So it is a right of the people.

 

[RealGun]

It seems to me that in its appelate role, issues rise to the SCOTUS that have little to do with federal jurisdiction. Some of these cases should have stopped at the State Supreme Court. The issue then is a district court taking the case and creating controversy that needs to be resolved. The US Supreme Court then takes on a role where it has to make things up in order to seek what it considers justice.

 

[ramis]

sad but true

musher said,

We can't blame government. Its nature is as it is. "A terrible servant and a fearsome master". The prevalence of the "do gooder" is a failure of the citizen not the government.

WE have let it go. We hold the blame. We were given the possibility of holding freedom for our children and we traded it for protection from the insurance industry and reality TV--and we didn't even get that. 3 squares and a bed isn't much worse.

I think this sums it up.

Men fight for liberty and win it with hard knocks. Their children, brought up easy, let it slip away again, poor fools. And their grandchildren are once more slaves. ~D.H. Lawrence

ramis