Part of the weakness of the Fourth Amendment is in the question of whether the two clauses are separate, or whether the “probable cause” bit is simply a definition of what constitutes “reasonable” in the first clause. Terry v Ohio, for example, suggests there is a difference between a “weapons check for officer safety” and a “search requiring probable cause” by suggesting that the former can be a reasonable search even if it isn’t a search that concerns the second clause. So, what if we reframed that amendment?
I consider this a very strong definition of a right to privacy. Should it go further? In what way?
I think age is an important aspect to keep in mind because legal consent is something important. If the wording were left the same, but with the removal of the age restriction, anyone of any age would be able to take part in a consentual act. I could easily see that being manipulated by pedophiles to say “well, the 4yo said it was okay, I have it on tape.” You could also end up hurting parental authority significantly; for instance, a parent grounds a kid and the kid doesn’t consent.
That said, I do think you make an important point, the fact that it isn’t stated isn’t intended to imply that the right does not exist for youth, but I simply couldn’t find a way to word it without also including things that I definitely didn’t want to. Is it possible to word it to allow for “reasonable restrictions” and trust that it won’t be abused, similarly to how “excessive bail” and “cruel and unusual punishment” are similarly vague?
I think this is a fundamental difference in views on what privacy is and, quite frankly, I’m not really understanding your view at all, so I’ll just try to clarify my perspective and hope you can come in and clarify yours.
I consider privacy to be anything in which the government should not be involved. If someone’s rights are being violated, then yes, it is within the government’s jurisdiction because a law is being broken. However, I also believe that by virtue of having a right one has the ability to waive that right. Sodomy may or may not be illegal (I think it’s technically illegal here, just not really inforced), but why? You have two adults participating consentually, which means either no right is violated or whatever right is in question was waived. What business is it of the government’s to say anything there at all? If someone is forcibly sodomized, then yes, that’s rape, but that’s something different.
I feel the same way about suicide. We all have the right to life, but as such, we also have the right to waive that right. If someone kills himself, it’s contradictory for him to violate his own rights, so how should it be illegal? Hell, I even think assisted suicide is a matter of privacy. Now, that’s not to say the government shouldn’t be VERY sure that he’s not being coerced and come down with the full extent of the law if that’s the case.
I see drug use as the same thing. Being alone on private property, or with other people who also consent, and using drugs, whatever rights in question are obviously being waived. However, that’s why I worded it as best I could to allow reasonable restrictions because driving while intoxicated should not be legal and it would necessarily include people who did not consent.
IOW, I view privacy as anything that doesn’t infringe anyone’s rights or infringes on someone’s rights but with their consent. There is the other aspect that includes things like information and property, but that seems fairly well covered under the fourth amendment to me.
I guess I feel like there are two kinds of privacy.
Unavailable for inspection upon demand. This could be: the contents of my pockets, trunk, closet, or brain (so to speak). In general, the Fourth and Fifth Amendments (and to some small extent the First and Third among others) protect this kind of privacy. This is the kind of privacy I would consider extending, firstly; it is the kind of privacy that occurred to me when I read the title of this thread.
Not open for discussion; “It’s not your business,” “That’s a private matter,” kind of privacy. This would mostly be behaviors solitary or consenting adults engage in, such as medical visits (the visit falls under this, the record of the visit under the first type), drug use, or bedroom rituals, though of course it would also apply to businesses and contract law and so on. To some extent this form of privacy is also protected, but less clearly so. Certainly the trend in the last 50 years has been towards extending this kind of privacy, overall, but not alarmingly so. Historically, and certainly today, society does seem to think that, ultimately, some things are its business, so that is why this kind of privacy did not occur to me.
I am fine with individual in their private lives (snicker) to be free from interference when engaging in consentual behavior, what I’m calling type-2 privacy here, but I have to wonder if it is really what you intended. I know you are thinking about what goes on in your own house, but what about what goes on in a boardroom? Could you still prevent an oligopoly or cartel from forming with this amendment? If so, how? If not, is this what you intend?
This definition is wholly unsuitable for an Amendment, in that it is kind of circular in that case; and besides which, the everyday concept of privacy involves more than just the government, so I don’t think this is all that clear in any case.
Yeah, that’s a good question, I don’t know. I think continuing to use words like “reasonable” is not going to cripple anything.
Okay, I think I understand the difference now. Perhaps “type 1” is just less at the forefront to me because I take it much for granted and because it is already fairly well covered. On that front, I would be happy with your revision of the fourth amendment to seal that deal.
As for the second, I think it does and should include a board room, particularly for privately owned companies. Publically owned companies are, of course, a completely different matter particularly since what happens in that board room is the business of every stock holder. I suppose in that regard it still keeps at least public companies open to some form of government regulation. That is, one could argue that all of the oil companies consenting to massively raise oil prices necessarily includes, and impedes on, the rights of their stockholders. In fact, one could further argue that since oil is something that is essentially required by citizens to live in the modern world today, it may also be arguable that it effects the rights of all of their customers.
To be fair, I’m pretty much a free-market capitalist, so my issues with that situation may be significantly less than it may be for others who may see that as an issue with my wording. So, is it a significant issue that may accidentally cause it to encompass something it should not? Would it prevent it from passing? Any ideas on how to address it if it is a major issue?
I agree, which is why I’m trying to find a way to word it so it doesn’t leave such an enormous amount of wiggle room. And while I agree with your revision of the Fourth Amendment to remove that ambiguity, it still doesn’t address a number of the issues that, as I understand, this thread was started to address such as homosexual relations, drug use, suicide, etc.
See, I’m still a bit worried on this. The constitution explicitly states reasonable restrictions on some things and they’ve remained reasonable. Sometimes it states it and it’s interpretted unreasonably (like IMO the necessary and proper clause). Other times it’s implied, like with the second amendment, where it doesn’t actually make any mention of any sort of reasonable restrictions at all. What I’m worried about is allowing for some sort of “reasonable restriction” and then someone coming along later and deciding reasonable restrictions include preventing any drug use or banning sodomy or suicide or any of the other things that I see as the fundamental purpose of the amendment. Then again, they could just as well assume reasonable restrictions anyway because, quite frankly, if they’re reasonable, the people won’t disagree with the restrictions even if they’re not explicitly stated to be permitted.
It is the business of every stock holder, but does that mean it isn’t yet private? It is happening between consentual parties, after all. Would this invalidate regulations aimed at making information freely available? If not, would it encourage less businesses to go public? (I don’t expect you to have an answer handy, just tossing out thoughts.)
Well I’m on your side with the market thing, except for possibly a few liberal interventionist ideas that would warrant another thread. And I think my concern here is more like, “What consequences can we expect?” Privacy has a cost. Doors are expensive; good locks on good doors are even more expensive. People spend a great deal of effort trying to hide things from the government. So, to the extent that this would prevent that rather inefficient behavior, it is a boon. But.
But what about what people would like to hide from each other, even if it is better that it is out in the open? Could our credit system reasonably exist if people wanted to keep their information private? There are already strong forces in the market to protect trade secrets. A patent is a legal monopoly, but a trade secret is far more exploitable for profit. Is that fair? Maybe morally so, but economically it can stifle competition and the market hates when there’s no competition.
I would vote for this amendment in a heartbeat, if we could tackle the problems I foresee in encouraging hiding behavior that is really better for us to have public. I’m not sure we even have a firm grasp on entirely where those limits should be, and if we grabbed them, something like a new technology could change the optimal placement of those limits very quickly.
So, let us find this compromise (which will also be untenable to most of the population, given how much people hate those darned gays):
My initial comments:
“legal age” – I agree this may be troublesome, and I am not 100% sure what it adds, as I’ve already questioned, but when I take it out it sounds too sweeping. Parents do not have dictatorial control over their children; society, IMO, should be there to help out by enforcing laws which have the majority support. The “100 year-old prostitute” angle is tough to deal with, offhand. Perhaps another insertion of “reasonable” belongs.
“reasonable expectation of privacy” – meant to avoid nullifying laws about public behavior between consenting adults, and to allow us to decide just what constitutes a reasonable expectation of privacy (e.g., the behavior of a public company). To some extent this is still possibly too vague, and maybe redundant. An act should not be private just because it is between consenting adults; but rather, that the adults have some expectation that their behavior is not available for public consumption.
How do you feel about this particular use of reasonable?
Maybe, but I have to say, we’ve gone from a Constitution of limited government and unlimited, unspecified (and not particularly needed to be specified) rights to one of sweeping government power and a struggle to justify ourselves before a magistrate or police officer by quibbling over a few dozen words. It’s not how it was meant to be.
A fair point, and I think you’re right. My thought process was that it is reasonable to assume that with potentially millions of stock holders, that it is overwhelmingly likely that at least one would not consent with virtually any action, and those make the company not necessarily elligible for protection; of course, that’s something that may rely too heavily on interpretation. Depending on how the precedence goes, I think it may well encourage some companies to avoid going public that would have otherwise and may hurt free information exchange.
I’m with you here to a point, but like I said, I think part of having a right also includes the ability to waive it. For instance, I really don’t like the idea of a credit card company having so much information about my finances and spending habits; however, I do like the conveniences of a credit card. I think much the same philosophy applies to business. Sure, this may or may not give businesses some more privacy regarding information, but that doesn’t mean it’s necessarily in their best interest to keep it private just because they can.
To use the patent vs. trade secret example you gave, it’s just another trade-off. A trade secret means you can profit as long as you can keep it secret, but if you lose the secret for whatever reason, you lose that edge. Meanwhile, a patent let’s you go public with the secret, but guarantees you’ll still be able to make a profit from the idea for a period of time to ensure that there’s still an advantage to innovation. In today’s world, the latter is normally more attractive simply because businesses are just too large these days to effectively keep trade secrets and technology is changing to fast for the upper bound on a patent to really be meaningful. I don’t see a privacy amendment having any real effect there except, to put further restrictions on the government stealing patents (which happens not too infrequently).
Quick aside: On that front, I want to make sure the wording necessarily includes some protection from businesses, particularly on this front. IIRC, and I’m sure a lawyer can correct me, the concept of “legal person” covers both people of legal age and many types of companies. That may be a better wording.
As for credit, I see it much like with credit card companies. No one HAS to have credit. It is entirely possible to not have credit, particularly if you’re always renting rooms and buying things with cash and such. I don’t think it’s unreasonable to say “hey, if you want us to be able to vouch for you (which is essentially what a credit score does) then you have to be willing to waive some of your right to privacy so that we can maintain an accurate score.”
I think this is a reasonable compromise, and particularly given the iffiness that many of us have expressed with regard to my use of the term “legal age”, how about this minor rewording:
Any act, in which all legal persons involved, consent willingly, and have a reasonable expectation of privacy, shall not be infringed.
{gratuitious use of commas added to keep with the original style of the Bill of Rights}
I think it’s about as fair as it can get. It would most likely cover homosexual relations, but remain silent on homosexual marriage; I think this is good, since even the majority of people who oppose gay marriage don’t necessarily think it should be illegal and any gay marriage amendment really should be completely separate. It would most likely allow some recreational drug use, but allow for reasonable restrictions on some of the more dangerous ones, public intoxication, driving while intoxicated, etc.; I think this is a good compromise between what the former wording would allow and what the current state is. It is probably more likely than not to make suicide legal, and possibly even assisted suicide, but allow the government to make reasonable restrictions (perhaps requiring psychiatric evaluation and restricting the methodologies); I think this is would be a very good thing for helping people who are terminally ill and possibly getting those who attempt suicide under distress help they need. I think it would put to bed the RvW privacy argument on abortion, though it wouldn’t end the debate because those who oppose it don’t oppose on those grounds anyway; I wasn’t expecting a resolution there, but at least we can get the debate focused where it should be. I think it is likely to make things like CCWs easier to get, I think it may raise more debate about gun registries; I think the first is a good thing, the latter I’m not so sure.
Wow. This thread got really good while I wasn’t paying attention.
I’m not so sure about “in which all legal persons involved”…
While I understand where you’re going with “legal person”, that term already exists in law- to describe a group of person who have standing as if they were a single person in a matter of law (ie. in a class action lawsuit or the shareholders of a corporation), or an actual person-person.
This was central to the case of Ravin v. State of Alaska, 1975, which establish the right of Alaskans to use marijuana in their own homes, and was upheld even after a voter initiative tried to circumvent it (Noy v. State of Alaska, 2003, Crocker v. State of Alaska, 2004).
