Should Michigan (and Others) Have A Right to Privacy?

Great Debates
1

I live in Michigan, which is why I include Michigan in my question. But should every state (and maybe the federal constitution) have a right to privacy explicitly spelled out in it? There reason for it would be twofold I guess. It is a necessary right in this modern world we live in (even though our founding fathers would have found it redundant). And it would shut up conservatives who complain there is no such right in the (federal and other) constitution.

Anyways, it is not as farfetched an idea as it may sound. I did some research about 10 years ago, and I found some states apparently have it in their constitutions. Two noteworty examples would be California (see here). And Hawaii (see here).

California reads:

(Emphasis mine.)

Hawaii:

and furthermore

It is ironic Michigan does not have a right to privacy (see here). Because like California (Sec. 7.5) and Hawaii (Sec. 23) it has a clause against gay marriage in its bill of rights (meaning it is a “fundamental right”(??) like free speech and right to bail:confused:).

Also, as an interesting side note to this proposal of mine, I actually sent a post card to then-Mich. attorney general Jennifer Granholm and the Secretary of State, Candice Miller in 2000. My proposal was cordially received, but otherwise didn’t go very far. I just thought I throw that in.

So what do you all think? An explicit guarantee for privacy for Michigan, every state (and maybe the federal constitution)?

I await your responses.:smiley:

2

The problem is “privacy” is pretty vague.

Roe v. Wade suggested a right to privacy as its basis. While not explicitly spelled out in the constitution it was deemed to “emanate” from other protections in the constitution.

This is a point of heated debate.

So, you could (in theory…good luck), put it in the US Constitution.

Again though what does it mean? What rights do citizens get from it?

We walk down the street and are on numerous cameras. Police need to tap phones. Your friend may tell another friend you slept with Judy.

What is privacy? What are its parameters as a legal matter?

3

What is the reason police need to tap phones that can’t be demonstrated enough to satisfy a warrant? Your two friends, and Judy aren’t constrained by the Constitution in regards to rights like the government is.

4

If there was a constitutional right to privacy, would getting a judge to sign off on a warrant be enough to allow phone tapping?

5

Privacy…to do what? That’s where this gets bogged down. The fact that you do something in privacy does not, by itself, assign legitimacy to it. You can’t murder someone just because you draw the blinds. And you already have the right to do all legal things in privacy. “The right to privacy” is one of those platitudes that sounds warm and fuzzy, and perhaps it can be, but by itself is too vague to mean anything.

6

Maybe we should put a right to privacy in the federal constitution. We could word it something like this:

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 Warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

Actually, that is the fourth amendment to the constitution. I never understood how anyone could argue that the constitution doesn’t have a right to privacy in it- that seems like a pretty obvious protection of privacy right there. I assume the argument is a Christine O’Donnell- style “the word “privacy” doesn’t appear anywhere in the constitution, therefore there is no right to privacy! Gotcha-ya!!!”

7

Misconstrued from the get-go, I think. A discussion of privacy as a right forestalls the consideration of what it’s for.

No, I don’t think you do. For instance, surfing the web is a fully legal activity (perhaps minus viewing child porn). But it certainly is not private – not only do ISPs retain data about you, private companies are known to gather information about and track people. It’s not clear to me under what definition of “private” that that’s possible.

I’m curious as to how CA and HI have addressed/interpreted it in the courts?

8

Brilliant legal analysis.

So now I want your cell phone provider to hand over records of the cell towers that your phone has connected to over the past thirty days.

Surely, Shirley, you cannot claim that the cell phone company’s towers, and its records of what towers it used to complete your phone calls for you, are your “persons, houses, papers, and effects,” can you? Obviously they are not. They are the company’s, and so your invocation of the Fourth Amendment’s text is unavailing.

However, a right to privacy might well reach that information – we might say that even though the records belong to the company and it manages them, you have a privacy interest in them, and thus the government may not compel thier production without some sort of showing, even if it isn’t probable cause.

9

WTF are you on about? Seriously, Bricker, I think you need help. You’re getting worse. And I don’t mean that in a Pit way. I’m serious. You’re becoming more and more of a legal bully, trying to prove your superiority to the unwashed. I used to think you generally cared about educating people, but now you appear interested in nothing more than scoring imagined points with semantic bullshit.

Nobody was talking about cell phone records. I was addressing what I have noticed is a popular argument among a certain group, normally composed of those opposing a certain medical procedure, that the right to privacy does not appear in the Constitution. This argument appears to based on nothing more than the technically true observation that the word “privacy” does not appear anywhere in the text.

It was this broad argument, that privacy is not addressed in the Constitution, that I was addressing. Clearly, the extent to which privacy covers various situations can and is debated. However, the argument that the Constitution says nothing about privacy is clearly wrong, and that was all I was saying.

10

Yikes.

I’m sorry. I have my combat boots on, and I brought them into this thread where they didn’t belong.

Please accept my heartfelt apology.

11

Well alrighty then. Glad we cleared that up.

12

While I personally agree with you this is by no means a view held by everyone. In particular and perhaps most importantly, some sitting Supreme court justices.

Scalia’s Originialism/Textualism he maintains you only have rights written into the constitution. Not rights that are implied.

In Justice Thomas’ dissent in Lawrence v. Texas:

Again, I am of the same mind as you but to the OP, in order to stop the likes of Scalia and Thomas you would have to explicitly spell out a right to privacy in the Constitution.

13

I think “the right to privacy” usually takes two forms, which really address two different issues.

The first is the “true” right to privacy, meaning, there should be a reasonable expectation of privacy if one exercises reasonable due diligence in safeguarding said privacy. That right, whether it’s memorialized in a state’s constitution or not, typically is protected by things like state privacy laws (regarding personal data, and how others may or may not use it, and the basic protections firms with legitimate access to it must provide), peeping Tom laws, most medical records, etc.

What one does behind closed doors is no one else’s business (so long as it’s legal), and whatever it is I’m doing doesn’t give you the right to peek through the shades of my window. I don’t think this needs to be a constitutional protection (we already have the fourth), since I think it works perfectly well at the local level (let them decide what is “private”), but neither would I be automatically dismissive of such an amendment. If someone wants to give one a shot, and it’s not vague to the point of meaninglessness, let’s all take a look. Saying “we all have the right to privacy” doesn’t do the trick.

Category two relates almost exclusively to abortion discussions. It’s the code word. It suggests that it’s not that we’re protecting someone’s medical decisions from being made public. It’s that because this is a “private matter” that somehow means it’s beyond the realm of social policy. Which is silly. Just because something is “private” doesn’t, by itself, assign a legitimacy to an act.

Abortion should be legal or not based on its own merits as social policy. If it’s justified, someone can announce their decision to get an abortion, and that won’t make the right to an abortion evaporate. Hell, have your abortion on cable television. But it’s a warm-and-fuzzy platitude that people nod their heads over–“of course we have the right to privacy!” Privacy to do what? Unless someone asserts that all private matters are somehow, by virtue of that aspect, out of bounds for social policy discussions, the issue does not forestall consideration of “for what?”

I didn’t state that clearly. I have no delusions that anything conducted legally will somehow be veiled in privacy. My point was that the nature of an act conducted in private (if it’s a legal act) is irrelevant. This relates to category two above.