Here are the ground rules of Policy Tuesday:

No mention of democrats or republicans, liberals or conservatives, either in general or specific.

Focus on governmental policy to achieve some goal, looking at current and past policy is allowed, proposing new policy ideas is allowed.

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Is there a right to privacy? To what extent? Is it a constitutional right, or a more fundamental right not enumerated by the constitution?

Would a constitutional amendment to an explicit "Right to Privacy" be a good idea? If so, how would such an amendment be worded? If not, why not?

Here are the ground rules of Policy Tuesday:

No mention of democrats or republicans, liberals or conservatives, either in general or specific.

Focus on governmental policy to achieve some goal, looking at current and past policy is allowed, proposing new policy ideas is allowed.

--------------------------------------------------------

Is there a right to privacy? To what extent? Is it a constitutional right, or a more fundamental right not enumerated by the constitution?

Would a constitutional amendment to an explicit "Right to Privacy" be a good idea? If so, how would such an amendment be worded? If not, why not?

Well obviously the founders thought the right to privacy was important--but didn't the Patriot Act set the tone for rolling that back somewhat? That the common defense sometimes trumps personal privacy concerns?

Excellent topic.

This is a very nebulous concept indeed, and although I support the notion, implicit or explicit, that certain activities and communications are inherently personal and thus can and should be kept from the prying eyes or control of government, I cannot conceive of the proper language for codifying that principle.

In June, I argued a case at the Colo Supreme Ct regarding whether emails between public employees are ever exempt from public disclosure as open records under a constitutional privacy standard.

The legal standard invoked for constitutional privacy here (at least for cases involving disclosure) in Colorado is whether the disclosure would be offensive to a reasonable person. That's the kind of fact-specific inquiry that works in judicial analysis but would be untenable language in a statute or constitutional provision. When expanding the concept to address other "privacy" issues (such as sex, abortion, etc.) it seems even stickier.

I have begun to think about this in its reverse mode. It seems to me that since we have an enumeration of all the powers granted to government by the people...would we not need a constitutional amendment...GRANTING a NEW POWER to the government?

The 9th and 10th amendments reserve rights to the people and to the states, it seems that any national encroachment on privacy is beyond the enumerated powers of the federal government.

Further. Historically speaking, if one looks at the founders and their age, the people that they followed as a diagram for constitutional making...what you find is people that may have been so steeped in the natural rights of man...that thinking that privacy was a right...was a given.

In looking at Locke specifically his 2 Treatise on govenment was meant as a rebuttle against The Leviathon by Hobbs, which advocated an "absolutist soveriegn" style governmental form that checked privacy and ownership rights.

Excellent topic.

This is a very nebulous concept indeed, and although I support the notion, implicit or explicit, that certain activities and communications are inherently personal and thus can and should be kept from the prying eyes or control of government, I cannot conceive of the proper language for codifying that principle.

In June, I argued a case at the Colo Supreme Ct regarding whether emails between public employees are ever exempt from public disclosure as open records under a constitutional privacy standard.

The legal standard invoked for constitutional privacy here (at least for cases involving disclosure) in Colorado is whether the disclosure would be offensive to a reasonable person. That's the kind of fact-specific inquiry that works in judicial analysis but would be untenable language in a statute or constitutional provision. When expanding the concept to address other "privacy" issues (such as sex, abortion, etc.) it seems even stickier.
The right to personal privacy seems such a fundamental right to me (and I suspect to the Framers) that its non-inclusion in the Bill of Rights is perfectly understandable. Why waste parchment stating the obvious? All freedom flows from a right to privacy.

It's a damn shame that things have deteriorated to the point where anyone feels obliged to DEFEND a right to privacy, or that 'activist' judges have to torturously find that right in the constitution in the face of an anti-privacy onslaught by the state.

How you'd really state it as an amendment, though, would be problematic, as j points out below.

I am thankful for George Orwell's writing of the novel 1984. That book represents a worst case scenario. It seems that if the government is allowed to take away more and more of our privacy than it becomes less "For the people and by the people" and more like the people being subjects of the state. We definetly need to keep an eye on this trend if it exists. The state should seek private information to protect all of us and not just itself.

Well obviously the founders thought the right to privacy was important--but didn't the Patriot Act set the tone for rolling that back somewhat? That the common defense sometimes trumps personal privacy concerns?Common defense, however, is trumped by the 4th Amendment.

Amendments to the Constitution should enumerate specific freedoms, just as the original ones did, rather than try to restrain freedom (ban alcohol or gay marraige). Given our current climate, it might make sense to make explicit what the right to privacy entails. But, having said that, I'd have a time writing one -- or at least I do at the moment.

Amendments to the Constitution should enumerate specific freedoms, just as the original ones did, rather than try to restrain freedom (ban alcohol or gay marraige). Given our current climate, it might make sense to make explicit what the right to privacy entails. But, having said that, I'd have a time writing one -- or at least I do at the moment.Bad idea. The framers specifically did not want to enumerate specific freedoms. Thus the purpose of the 10th Amendment.

of personal rights to privacy is a slap in the face of one of the foundation blocks of our system.

Bad idea. The framers specifically did not want to enumerate specific freedoms. Thus the purpose of the 10th Amendment.What about the 13th amendment, which abolished slavery; the 15th, which says "right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude"; the 19th, which gave women the vote...

of personal rights to privacy is a slap in the face of one of the foundation blocks of our system.How, then, are privacy rights to be protected?

Is there a right to privacy? To what extent? Is it a constitutional right, or a more fundamental right not enumerated by the constitution?

Would a constitutional amendment to an explicit "Right to Privacy" be a good idea? If so, how would such an amendment be worded? If not, why not?

First off, what is the definition of privacy? What is protected, and what isn't? And protected from whom, or what?

Defining what is private and not private is probably an important begining. At that point, the law could state that without probable cause the barrier to privacy can not be broken. I would think that matters between family and friends are private and your public and professional dealings are not private.

Defining what is private and not private is probably an important begining. At that point, the law could state that without probable cause the barrier to privacy can not be broken. I would think that matters between family and friends are private and your public and professional dealings are not private.Well put.

I found this overview at http://www.law.cornell.edu/wex/index.php/Privacy (http://www.law.cornell.edu/wex/index.php/Privacy)

right of privacy: an overview
Distinct from the right of publicity (http://www.law.cornell.edu/wex/index.php/Publicity) protected by state common or statutory law, a broader right of privacy has been inferred in the Constitution. Although not explicity stated in the text of the Constitution, in 1890 then to be Justice Louis Brandeis extolled 'a right to be left alone.' This right has developed into a liberty of personal autonomy protected by the 14th amendment.
The 1st (http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmenti) (http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmenti), 4th (http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmentiv) (http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmentiv), and 5th (http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmentv) (http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmentv) Amendments also provide some protection of privacy, although in all cases the right is narrowly defined. The Constitutional right of privacy has developed alongside a statutory right of privacy which limits access to personal information. The Federal Trade Commission overwhelmingly enforces this statutory right of privacy, and the rise of privacy policies and privacy statements are evidence of its work. In all of its forms, however, the right of privacy must be balanced against the state's compelling interests. Such compelling interests include the promotion of public morality, protection of the individual's psychological health, and improving the quality of life. These distinct rights of privacy are examined separately on the following pages:

First off, what is the definition of privacy? What is protected, and what isn't? And protected from whom, or what?The fourth amendment already covers a good portion of it.

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.


The first amendment is a key part of it.

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


And five is pertinent too.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

What about the 13th amendment, which abolished slavery; the 15th, which says "right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude"; the 19th, which gave women the vote...Look at the 13th. It was well written but didn't actually enumerate a right, only a limit. You specifically do not have the right to own a slave. The 15th and 19th both do the same thing: place limits on the government sending everything else back to the states and people under the 10th.

Where's TMB with the Federalist Paper references??? I don't have time to pull them myself today but think Madison.

The fourth amendment already covers a good portion of it.

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.


The first amendment is a key part of it.

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


And five is pertinent too.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.The 9th and 10th is what ties them all together.

Look at the 13th. It was well written but didn't actually enumerate a right, only a limit. You specifically do not have the right to own a slave. The 15th and 19th both do the same thing: place limits on the government sending everything else back to the states and people under the 10th.

Where's TMB with the Federalist Paper references??? I don't have time to pull them myself today but think Madison.I'd like to hear what tmb has to say as well.

But you can make the case that the most successful constitutional amendments empower segments of the population, extend to them rights they didn't have that other citizens already had. Hence the 13th codified freedom for African-Americans and for all others who had been in conditions of servitude (by disallowing any kind of indentured servitude as well), the 15th gave the vote to African-Americans, and the 19th gave the vote to women.

The 9th and 10th is what ties them all together.

Amendment IX

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



Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. <CENTER><CENTER><CENTER> </CENTER></CENTER></CENTER>

I'd like to hear what tmb has to say as well.

But you can make the case that the most successful constitutional amendments empower segments of the population, extend to them rights they didn't have that other citizens already had. Hence the 13th codified freedom for African-Americans and for all others who had been in conditions of servitude (by disallowing any kind of indentured servitude as well), the 15th gave the vote to African-Americans, and the 19th gave the vote to women.I'll make the argument that the 15th and 19th would have been unnecessary if the 13th struck the 3/5 clause from Article 1, Section 2. Especially in light of the 14th.

Amendment IX

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



Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. <CENTER><CENTER><CENTER> </CENTER></CENTER></CENTER>

Excellent topic, as I believe STRONGLY in a person's right to privacy, I agree with some of the other posters here, another amendment is not necessary, and the courts need to define, at least in basic terms, what is private and what is not. My belief is that the right to privacy of any citizen of the US is absolute with the exception of executing or completing actions that may infringe or interfere in or with the rights of another individual or group. This where your right to privacy may cease due to your actions. I also believe that occasionally, as is the case recently, that it is necessary to interfere with an individuals right to privacy on a limited basis, in order to ensure the safety of an individual, group, or society as a whole. I think that right now, even with the necessary constraints implied by living within the current terrorist context, that the government has to do a better, more efficient job of ensuring our safety.

Look at the 13th. It was well written but didn't actually enumerate a right, only a limit. You specifically do not have the right to own a slave. The 15th and 19th both do the same thing: place limits on the government sending everything else back to the states and people under the 10th.

Where's TMB with the Federalist Paper references??? I don't have time to pull them myself today but think Madison.

Don't have a bit of time only to say that federalist 85 is the one that Hamilton comes out against the Bill of Rights and in many a constitutional convention...the talk of the town was so to speak the nature of rights and just what those rights were that were retained by the people...

My favorite quote from my man from NC Justice Iredell...

"It would not only be useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it."

I don't know the constitutional aspects of the debate, but I tend to believe Scott McNeally (CEO of Sun Microsystems) was right years ago when he controversially proclaimed (I'm paraphrasing from memory here) that privacy is a thing of the past and people might as well get used to it. Technology is breaking down natural barriers to privacy that we unimaginable during the authoring of the Constitution. If you wanted privacy back then, you simply secluded yourself and your discussion to a private place. Today, all communication except for a hushed in--person discussion occurs upon a public infrastructure.

I can't imagine how you can maintain privacy in this sort of environment. A special Constitutional provision may be helpful, but administratively it may be more expensive and complicated than HIPAA. Additionally, it won't do much to protect our privacy from corporate exploitation, which is just as concerning as government-based invasion of privacy.

Additionally, it won't do much to protect our privacy from corporate exploitation, which is just as concerning as government-based invasion of privacy.

Ah but it might!

If we have a right to privacy, and if we enshrine it in the constitution, then we could say that we OWN our privacy. In other words, our personal information and actions are ours, and cannot be used without our express consent. Should we give that consent, that consent is not transferable. Kind of like a software license: you don't have the right to sell software that you bought, because you bought a license to use it.

They don't own our information, they get to have it for use to service US.

What this would mean is that if we choose to give our information to a company, they cannot give it to any other organization without our explicit consent to give it to THAT PARTICULAR other company.

Heck, I agree with you about the technology. But I would love to be able to sue a company for selling my information to a marketer. That's the thing. We can pass all sorts of laws and then ENFORCE them if we want. Don't you think a privacy law that stopped companies from selling our information we give them would have across the board support? I do.

And stopping the database creators, in effect breaking the aggregators up into balkanized indivudual company databases with no interconnections, would go a long way towards making our lives more private.

As an aside, I would note that this is the 3rd policy tuesday thread, and they have all been relatively civil. I think if you look at the people that participated in these thread and how they have participated, it is clear that there CAN BE civil discourse in PO. So people that say there can't be, and then use that as a justification for flaming away, are just making excuses for their own behavior.

Amendment IX

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



Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. <CENTER><CENTER><CENTER> </CENTER></CENTER></CENTER>


The problem is that the courts historically have ignored the IX amendment.

The problem is that the courts historically have ignored the IX amendment.How do you think this could be rectified?

How do you think this could be rectified?

I have NO idea. While I am no flag waiving red state nutjob, I do believe our legal system is among the best in the world. It is not, however, perfect, and maybe the imperfections are what makes it work.

Most people think that the constitution is the law of the land, and that it trumps any "contrary" legislation. Unfortunately, it is not so simple, because the constitution was written with a certain economy of words that (perhaps intentionally) lend themselves quite nicely to multiple interpretations. It (and by it, I refer specifically to the Bill of Rights)is not, at least in my humble opinion, a static document that, like the ten comandments, lays down a series of rules by which we must live. Rather, it is a series of moral statements, or guideposts, intended to ensure that we move forward in a particular direction. Decisional authority (court opinions) is premised on the underlying principles of the constitution, and over time (through stare decisis), particular decisions put down roots and become, themselves, iconic symbols of our legal system. See, for example, Miranda v. AZ and Roe v. Wade (at least on several levels). However, just as certain cases develop into fundamental precepts of constitutional law that are, in many ways, akin to a constitutional amendment in and of themselves, other aspects of the constitution (through atrophy) seem to have disappeared from American jurisprudence. The IX amendment, I am afraid, has little meaning today, and absent an activist bench, I doubt that it ever will.

Ah but it might!

If we have a right to privacy, and if we enshrine it in the constitution, then we could say that we OWN our privacy. In other words, our personal information and actions are ours, and cannot be used without our express consent. Should we give that consent, that consent is not transferable. Kind of like a software license: you don't have the right to sell software that you bought, because you bought a license to use it.

They don't own our information, they get to have it for use to service US.

What this would mean is that if we choose to give our information to a company, they cannot give it to any other organization without our explicit consent to give it to THAT PARTICULAR other company.

Heck, I agree with you about the technology. But I would love to be able to sue a company for selling my information to a marketer. That's the thing. We can pass all sorts of laws and then ENFORCE them if we want. Don't you think a privacy law that stopped companies from selling our information we give them would have across the board support? I do.

And stopping the database creators, in effect breaking the aggregators up into balkanized indivudual company databases with no interconnections, would go a long way towards making our lives more private.

As an aside, I would note that this is the 3rd policy tuesday thread, and they have all been relatively civil. I think if you look at the people that participated in these thread and how they have participated, it is clear that there CAN BE civil discourse in PO. So people that say there can't be, and then use that as a justification for flaming away, are just making excuses for their own behavior.
How would you word such an amendment so that it is impervious to the chiping away that the framers were so worried about?

Not that I'm against such an amendment, only I think it would be relatively useless when 99.99% of the population willingly gives up personal information to anyone if it will get them access to something for free or at a discount or out of convenience. Think supermarket loyalty cards. The TOS for those cards usually quite clearly state that your information may be used and sold, giving you the choice to either not use the card and not get the discount or deal with the TOS.

Such an amendment will only force companies most companies to implement a TOS where none existed before. "Want to shop at Macy's, then you need to agree to this first..." Think that won't happen? Remember the stink over ATMs when they started charging access fees? The banks knew that people would eventually get over it because it's just too convenient.

We Americans like to talk a good game when it comes to liberty and privacy but in the end it's all just talk.