Sunday, January 08, 2006

No "Right" to Privacy

Gena Edvalson has her ladder against the wrong wall. She wants to ensure that the next person appointed to the Supreme Court upholds the right to privacy. If her argument is as strong as she sees it, it should be a simple to convince the American people to amend the Constitution. I don't think most conservatives argue today that privacy isn't important. Rather, they argue that the right isn't in the Constitution.

The fourth amendment in the Bill of Rights is where most people see the "right of privacy" in the Constitution. But if you read it, you will see it isn't there.

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.

A person cannot, for example, keep slaves in the basement of their homes and argue that this is their right by privacy. The government, upon learning of the infraction, may obtain a warrant and correct the crime.

The provision in the 4th amendment doesn't exempt us from the force of laws that might affect what we do in the privacy of our own homes. It simply ensures the presumption of innocence. This seems like an important distinction.

A lawyer (which I am not) might find my analysis lacking. This is likely. I maintain, however, that law is not just if it cannot be understood by the people who will live under it. I think it is valuable to see how normal citizens view the law so that it can be altered as necessary by normal processes. Thus, I offer my interpretation.

1 comment:

Scott Hinrichs said...

The Constitution is actually rather brief. The Founders avoided complicated legal language and couched it in the common language of the day. It was meant to be read and understood by the common citizen (or at least the common property holder) without the aid of legal professionals.

Much legal twisting has occurred since then. Most cases are not decided on the actual language of the document, but on case law that indicates what some earlier court determined that the language means. Fresher determinations often consist of extracting words or phrases and using them as a platform to right perceived wrongs, making the court into some kind of super legislature that exists expressly to protect the interests of the minority. It's the old altering and trampling of the law thing (see here.