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Volume 3 Number 23 August
24, 2005 |
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Secrecy, privacy, confidentiality -- Part II Forget about the Constitution -- it's irrelevant. Forget about the Constitution? I know that's almost a heretical statement in a country where every lunchroom loudmouth or barstool barrister is a self-styled expert on what the Constitution does or doesn't say. Mind you, very little of this "expert knowledge" comes from actual study of the Constitution or of competent commentaries on it, but rather from the cursory reading of political screeds or endless listening to the babble-head commentators on talk radio or the cable "news" chatter channels. It's a given that when you talk about privacy, the first responses will be from people dutifully announcing that the right to privacy isn't specifically stated in the Constitution, and therefore the whole discussion is futile. That, of course, is the one-note song of those opposed to individual rights and is, turning Jeremy Bentham's own words again him, "nonsense upon stilts." Human rights -- or moral rights -- are prior to and supercede the rights granted to us in law, whether in the US Constitution or the laws of any other country. The rights we have to be secure in our persons, our thoughts, our property, our religion (or lack thereof), and our right to be free from government interference exist independent of any laws recognizing them. So, to the extent that the US
Constitution fails to recognize privacy as a right is the extent to which the
Constitution is defective. We've seen this before. African-Americans -- or
any other group of people for that matter -- had a moral right not to be held
in slavery. They had this right before it was recognized by law in the Now, that we've adjusted our laws on slavery to the moral rights that people hold, we look askance at other places that haven't done so. We would correctly see as deficient another country's constitution if it failed to protect people from being held in slavery. From that alone, we can conclude that those human rights transcend national boundaries and the vagaries of differing laws. The rights exist, whether they are recognized or not. As to whether the Constitution addresses privacy, I have my own opinions, despite the fact that I don't spend much time either in lunchrooms or on barstools these days. I don't consider myself an expert, but I've looked into the matter. First, there's the little issue of the convenient Ninth Amendment, which states "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This was put in there for a reason, and that reason was to forestall the very people who claim that a certain right doesn't exist simply because it wasn't mentioned by name. So the fact that privacy wasn't mentioned as such is no proof that there is no such right. The Founders were way ahead on this one. More compelling is the idea of what the Constitution is. As a document, it does two things. First it establishes what the Founders thought would be a good framework for running a country. Second, it sets out the relationship between government and the citizens. As to the first task, the Founders had a vision. It was pretty much to be a country ruled by an oligarchy of elite White men who owned property. There was no provision for democratic popular election of the president, merely a selection, most likely from among their own number, made by a group of people sent to the Electoral College by the states for that purpose. How they got there was very unclear and could vary from state to state. The Constitution left open the possibility that they could simply be appointed. It was pretty much a Utopian plan and -- as the Founders made quite clear -- an experiment. To the country's credit, we saw the deficiency in the Founders' plan and we corrected it to some degree, giving the people some voice in the selection of the president. But second, and most important, the rest of the Constitution -- the relationship between government and the people -- is almost all about privacy. While it doesn't use the word specifically, the Constitution talks about little else. From the idea that no one can tell you how to worship, or whether you should worship at all, to being secure in your papers and property, to being immune from self-incrimination, to freedom of speech, the Constitution speaks of privacy in myriad ways. The fact that it doesn't use the actual word is irrelevant. Imagine that you spent an entire afternoon telling someone about your parents, your childhood, your siblings, your relations, your wife, and your children. Then imagine that the person to whom you were speaking tried to claim that you never talked about your family because you never used the word "family." You'd laugh them out of the room. It's the same with the Constitution and privacy. But even if the Constitution was silent on privacy in all ways. What would that mean? It wouldn't mean anything for the moral right to privacy, except that the Constitution was deficient in not recognizing it. So I guess the task is not, as I flippantly suggested, to forget the Constitution, but rather to examine the Constitution and see whether it rises to the occasion and sufficiently expresses the right to privacy. If it doesn't -- and I happen to think it does, although not by name -- then the further task is, as we've done on other occasions, to tweak the experiment to set it right. |
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© Copyright 2005 Carlton Vogt |