*

*
Rocking horse people eat marshmallow pies © Robert Sommers 2017

Monday, August 19, 2013

Right to Privacy?

Brandeis
I was way out of my league arguing constitutional law with the two high powered lawyers but hey, somebody had to do it. They were trying to tell me that there was no actual constitutional right to privacy, it was a substandard or what they termed a "cobbled together" right and I should just stfu.

I was admittedly out of my depth but decided to go to the source, the constitution itself. Luckily my pal Bradford had a copy in the Airstream.

I didn't find anything specifically regarding privacy but did chance on something called the fourth amendment to the Bill of Rights. Here is the text of said fourth amendment, introduced in Congress in 1789 by James Madison and adopted on March 1, 1792.
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.
Doesn't mention privacy per sé but the framer's intentions were fairly clear, at least to my unlearned noggin. In truth an actual right to privacy wasn't mentioned until way forward in 1890 by the brilliant future Supreme Court Justice Louis Brandeis in his article The Right to Privacy in the December 15, 1890 issue of the Harvard Law Review, co written by attorney Samuel D. Warren. Brandeis wrote that the right to privacy was the right to be let alone.

Brandeis wrote a famous dissent in Olmstead vs. the United States (1928) where he argued that the protections offered by the Fourth and Fifth Amendments are broad and that wholesale intrusions by the government on the privacy of individuals can be construed as a violation of these protections. In 1934 Congress passed a law severely restricting and outlawing the use of wiretapping.

Nowadays of course, the government has surrendered any belief in letting people alone, the right to privacy or the fourth amendment. They will park a drone over your house, swab your DNA, read your mail, listen to your phone calls, track your location, do pretty much anything they feel like, without a warrant or probable cause. That constitution stuff is so outdated. But no worry, because as soon as we beat that bad guy named terrorism, things should get back to normal.

*

The thing that caught my eye this time reading the constitution was not an amendment or clause but a curious name. A name that I don't recall seeing before; the signature of Dan of St. Thomas Jenifer. What kind of name is this to sign our founding document? A first name and a place of business?

Daniel of St. Thomas Jenifer (1723-1790) was a delegate from Maryland. Jenifer was a son of a planter, born in Coates Retirement, Maryland. He deeply resented British interference in colonial affairs and fought to keep Maryland from becoming a Royal colony. One of the oldest delegates, he represented Maryland in the Continental Congress. A close friend of Franklin, it is said that he was a man of great humor. Certainly he possessed one of the most interesting names of our forefathers.

*
Amendment I
(Privacy of Beliefs)
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.

Amendment III
(Privacy of the Home)
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
(Privacy of the Person and Possessions)
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
(More General Protection for Privacy?)
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Liberty Clause of the Fourteenth Amendment
No State shall... deprive any person of life, liberty, or property,
without due process of law.

2 comments:

Sanoguy said...

I have read and met author Alan Weisbecker. I have read two of his books the best being "In Search of Captain Zero". He is a surfer and I have met him and talked with him a couple of times in a place in Southern Mexico in which he spends the winters. He is an interesting character to say the least. He was a screen writer on a number of Hollywood productions including "Miami Vice". He very much believes in government conspiracies. me, not so much. Anyway, he has an interesting take on Snowden and the government.

This is a rather long article he has written on the subject:

http://www.veteranstoday.com/2013/08/14/nsa-surveillance-on-edward-snowdens-oath-and-motives/

Sanoguy said...

I know that we are all worried about the government getting in to our business... all with good reason. Why are we not worried, or at least many aren't, about Facebook, Google and a thousand other web sites vacuuming up our info?