Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Friday, November 04, 2005

Right to Privacy

Oooh, I really like this. Brilliant idea. It would take some time to get the wording right, but the end result would be worth it.

I'm going to add to this in an extremely geeky way below the fold...

In mathematics, there is a set of rules, or "axioms", without which one cannot do math at all. These are things that are not up for debate; you accept them, or you are doing something that one cannot call mathematics. One can think of these as being the "laws" of mathematics; the Zermelo-Frankel axioms are sort of our Constitution.

There is, however, one axiom, called the "axiom of choice", that is up for some debate. It cannot be proved from the other axioms; you either take it as an axiom or you reject its validity. In its simplest form, it says that if you present me with a whole bunch of sets, I can pick one element from each. Simple, right? How can anyone disagree with such a harmless thing? Well, it directly leads to the following result, called The Banach-Tarski paradox: we can take a ball of any size, cut it into 5 pieces, and re-assemble the pieces to get two balls, both of equal size to the first. Despite this (and other) paradoxes, the axiom of choice is good in so many ways that the vast majority of mathematicians believe it.

You can probably see where I'm going with this -- the axiom of choice in mathematics seems to me to be intimately related with the right to privacy in politics. (The axiom of choice is conveniently named for this discussion, as the right to privacy is roughly equivalent to a woman's right to choose.) We have a large group of people (the majority, in fact) that believe it exists and a smaller group that believes it doesn't. So why not make it an axiom? It's good in so many ways.


Dr. Strangelove said...

Good idea. And if you are looking for verbage, several State Constitutions already have sections titled, "Right to Privacy." Here are some of them.

"Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law." -Florida State Constitution, Article 1, Section 23. (added in 1980)

"The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right." -Hawaii State Constitution, Article 1, Section 6 (added in 1978)

"All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." -California State Constituion, Article 1, Section 1.

"Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court." -Louisiana State Constitution, Article 1, Section 5 (1974)

"The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section." -Alaska State Constitution, Article 1, Section 22

"The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest." -Montana State Constitution, Article 2, Section 10

Dr. Strangelove said...

Your note on the Axiom of Choice reminds me of Euclid's fifth postulate. It can be written in many ways, but its essence is parallelism: "Given a line and a point not on the line, it is possible to draw exactly one line through the given point parallel to the line."

It was widely believed for a long time that this rather complex statement was implied by Euclid's other four (much simpler) postulates and thus could be derived from them. That it was actually an independent aximo was only discovered when mathematicians like Gauss and Riemann considered the heretical possibility that it was false, and thereby discovered that you could construct any number of consistent non-Euclidean geometries (spherical and hyperbolic, for example.) These rather academic exercises were later given new importance as the foundation of Einstein's theory of spacetime.

So... is the right to privacy distinct and independent of the other rights explicitly guaranteed by the Constitution, or is it implicit in them? I think it's implied (and so does Bell Curve, I imagine) but Bell Curve's point is very well taken: why not just add it and be done with it?

I think it's a great idea. (Good luck getting it past the religious right, though.)

Anonymous said...

But the author makes a great point -- let the religious right run around the country trying to argue why the government should be allowed to meddle in your personal affairs! How would that look? 

// posted by Bell Curve

Anonymous said...

I say it is an awesome idea. Let's do it!
That is one way to get the discussion rolling for real in this country.

I'd like to point out that there is an implied right to privacy in the Bill of Rights:

Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law

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.

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

And finally, in a round about way:

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.


// posted by USWest

Anonymous said...

I love how the California constitution is based so closely on the Declaration of Independence!

Let's get this going. Propose in the constitution and force the "thoughtful conservatives" to oppose it on purely religious grounds. Genious! Clearly though people have thought about it before and put these clauses in the state constitutions in the 70s. But I wonder why it hasn't even been proposed at the federal level.

LTG? Do you have some information on that? 

// posted by Raised By Republicans

Anonymous said...

I don't know if it's intimately connected, but there was already one big amendment push going on in the 70s, and maybe there was concern about diluting that effort, or the left appearing to be overhauling the Constitution, or maybe even putting the cart before the horse.

Insofar as "right to privacy" is primarily associated with "woman's right to choose abortion", it might have seemed intelligent at the time to ensure the Constitution guaranteed women had the same rights as men first.

Which, to me, anyway, still seems like a pretty good idea. 

// posted by Bob

Anonymous said...

I think the answer is historical, as to why not proposed. The ERA was the amendment upon which progressives blew their wad in the 1970s. It was proposed in 1972 (Roe v. Wade decided 1973). The struggle somewhat encompassed abortion rights also, as you can imagine. The failure in the late 1970s and the rightward turn of the country changed all that. In the 1990s, the Clinton election of 1992 was a move away from the liberal wing of the party. 1994 killed any chance of privacy amendment going forward.

The other problem is that "right of privacy" is so amorphous that it requires massive legislative support and/or judicial interpretation.

I stick with Justice Brandeis who described the most fundamental right as the right "to be let alone." 

// posted by LTG

US West said...

I'd like to point something out about the abortion issue and women's rights. Bob, I agree with your point about equality. But I will say that as a woman, I am covered. Being a woman doesn't not alter my status as a citizen and thus, I have all the same rights as men. I don't need an ERA. Besides, ERA type amendments and gay marriage type of amendments are about special interest groups. They aren't about big ideas. And the US Constitution should not be cluttered with special interest amendments. It should, however, be amended to clarify the really big issues, like privacy. And LTG, I don't think privacy is any more tricky or broad that any of the other things we have tackled like equality, due process, justice, etc. Besides, there is a whole body of law out there about privacy and expectations of privacy in certain settings.

As for abortion, it is such a warped issue. No one is talking about it properly. I think the closest thing to proper discussion about it is the one from Freakonomics that is so misunderstood by people. I also liked the brief conversation about it that they had on West Wing a week ago, where Santos (a democratic proponent of limitations on abortion) asks a woman, “Do you think a woman should have an abortion because of the gender of the child?” and the woman says “No”. And he says, “see, you already agree that abortion should have limits.”

Abortion isn't about choice so much as about privacy and independence. I love these Christian conservatives who try to tell us that women use abortion for birth control. They are same conservatives that refuse to support social programs to help mothers and fathers raise their children. These are programs such as public day care, stronger family and parental leave laws, reforms to social security that protect parents who leave work for 5-6 years to care for children. Then they block funding for Headstart, WIC, Medicaid, etc. and start cutting the taxes of the rich, forcing the middle class to pay for the poor while struggling on their own.

Abortion is part of a much bigger picture of abuse, poverty, lack of education, discrimination. So I am not interested in hearing people talk about abortion and the "rights of the unborn" when the rights and needs of the born are so trampled on. Let's start figuring out the proper place of government in our lives and the proper role that government should serve. Let's stop making family values a political issue.

Anonymous said...

"Being a woman doesn't not alter my status as a citizen and thus, I have all the same rights as men. I don't need an ERA. Besides, ERA type amendments and gay marriage type of amendments are about special interest groups. "

Even if one assumed that an ERA was solely about women acquiring the same rights as men, describing half (or more) of the population as a special interest group sounds funny.

Being a citizen doesn't automatically grant everyone the same rights, although after the civil rights movement, that is more the case now than it was. And it is definitely true that women's rights are much more broadly interpreted now than when the ERA was introduced -- so you might not feel you "need" an ERA anymore.

And whether or not you feel a need for an ERA, maybe I do -- children born overseas to a US citizen mother are automatically granted citizenship, while the father's citizenship doesn't give the same guarantee. Gender discrimination in child custody cases favors women, and I don't want that any more than I want women getting paid less for the same job.

However, I didn't mean to say that I thought an ERA should take priority over a "right to privacy" amendment -- I was just guessing why a privacy amendment didn't make the national scene back in the 70's.

"Let's stop making family values a political issue. "

I'm sure most everyone here thinks that's a great idea. Unfortunately, since some of us aren't in a Christian heterosexual man-brings-home-the-bacon-wife-fries-it-up nuclear family, we're living proof of the erosion of "family values" to the people that keep making it a political issue. 

// posted by Bob