January 2006 Archives
Last weekend, Judge Harold DeMoss of the Federal Court of Appeals for the Fifth Circuit offered an op-ed in the Houston Chronicle rejecting the notion of a constitutional right to privacy. My initial reaction at reading the article was "how did this man become a judge" -- I was that shocked. On a second read, however, I found some begrudging agreement with a strict constructionist -- a rarity in my universe.
Judge DeMoss starts out predictably enough -- searching for the word "privacy" in the U.S. Constitution and not finding it. He then makes a valiant effort to sidestep the Ninth Amendment (reserving unenumerated rights to the citizens) by arguing that the judicial recognition of unenumerated rights violates the Constitution. In other words, people may have unenumerated rights but the courts can't recognize or protect them. To the extent that "natural law" exists, this argument strikes me as a huge error in logic -- if the Ninth Amendment means anything, then the courts have to be able to protect the rights retained by the people despite the lack of enumeration. (A subsequent letter to the editor makes this point with somewhat more vitriol.)
In the end, however, I agree with Judge DeMoss that the best way to defend privacy is to create an affirmative right rather than relying on the unenumerated penumbras and emanations of the Ninth Amendment. I would look to the more standard amendment process, despite the hurdles -- but Judge DeMoss advocates a direct national referendum. I don't believe that Congress would approve a national referendum this year -- there's no way the House wants to encourage turn-out at the polls when every seat is theoretically (and some truly are) in play -- but I can see movement that would turn the issue over to the states for ratification. Anyway, if strict constructionists have begun advocating for change, then perhaps there's a hope for all of us.
Today's Washington Post has a Michael Kinsley op-ed entitled Give Me Liberty Or Let Me Think About It. It starts off centrist and then slides to the left, grounded in a "social contract" perspective (that I happen to share) -- individuals give up certain freedoms in order to establish government, so any further concessions of individual freedom should require notice and at least representative consent (e.g. congress-critters).
Kinsley muddies the waters by trying to offer a general defense of the left, but I'll take a shot at redefining the main point -- unclear and indeterminate "ends" (how exactly does one wage a physical war against an abstract concept like "terror"?) certainly can't justify a set of "means" that involve trampling the fundamental compact between the people and their government.
From today's Washington Post: Report Rebuts Bush on Spying -- Congressional Research Service takes a look at the legal arguments to date and concludes that there's a problem with the unsanctioned surveillance of US residents communicating electronically with those overseas.
I'm not sure that my proposal goes far enough to protect against this kind of abuse, though the existence of clear Congressional instructions for this exceptional use of executive power is arguably enough. What happens, however, when we learn that purely domestic communications have also been intercepted and scanned and evaluated? Is the grand high poobah of law-and-economics, Richard Posner, right when he writes or chats that collection, compilation, and filtering of electronic communications is completely legit? (Stay tuned for further discussions on that one...)
