Roberts Gives Dems The ULTIMATE Wedge!

At the heart of the current Roberts discussion is our "right to privacy".  Roberts, Bork, and many like minded conservatives have justified their positions by stating that while everyone assumes we have a "right to privacy", it simply is not written anywhere in the constitution and has no business influencing rulings.

So here's a thought.  The Democratic Party should push for a constitutional amendment clearly stating our "right to privacy".  Now there's an idea worth touching the constitution for!

Even if the push is unsuccessful, it will not only force Republicans to reap the political benefits of coming out on the WRONG side of personal privacy, especially considering that even the staunchest conservatives are pro-privacy on a range of issues, it will help define in the public's mind exactly where Democrats stand.

And if the amendment is passed, then not only will it strongly bolster Democratic positions on a range of issues including abortion, it will also prove vital in the coming century as a host of new privacy-related issues come to the forefront.

Seems like a win-win for us any way you look at it!

•  And if such an amendment...

  will clear a path for me having sole rights to my credit history and personal financial info, then all the better!

  by citizen lehew on Wed Aug 10, 2005 at 02:43:48 PM PDT

  •  see my proposed language below...

    
    I have a couple of lengthy postings down there a ways, including specific language for an amendment, and discussion of some of the implications.  

    Financial/taxation is a very difficult area; gets into the differnce between earned personal income, corporate earned income, capital gains, and also brings up the issue of value-added taxation as a non-infringing instance.  However, all of this turns out to have some interesting implications, as I spell out in some detail below.  

    by G2geek on Wed Aug 10, 2005 at 07:00:29 PM PDT

•  How do you sell privacy

  without it just coming down to the right to abortions or not?

  What scenarios do you use?  Medical records, identity theft, or better yet, how many guns you own?

  This'll only work if we can give concrete examples of government intrusion in the absence of a right to privacy.

  by verasoie on Wed Aug 10, 2005 at 02:45:44 PM PDT

  •  The issues you listed, and MANY others...

    I think the point is that most people on both sides of the spectrum already assume we have a right to privacy, and might be shocked to find out it's not already in the constitution.

    Done properly, I think the Democrats could turn this into an amendment stampede.

    by citizen lehew on Wed Aug 10, 2005 at 02:48:36 PM PDT

    •  True, but doing it effectively comes down to

      concise framing of the issue.

      I think people will see that you have a winning idea here and latch on if you can come up with some concrete examples that show how it would be easily sold to the general population.

      by verasoie on Wed Aug 10, 2005 at 03:02:59 PM PDT

      •  I think the idea is a winner...

        whether I can personally come up the proper framing or not.  That's kinda the discussion I was hoping to induce with this post...

        by citizen lehew on Wed Aug 10, 2005 at 03:07:55 PM PDT

    •  My new favorite example: birth control.

      There are plenty of examples of how the Republicans want to overturn  Griswold.

      Man, telling people that Republicans want to keep them from controlling their fertility would drive them to the polls like nothing else.

      by verasoie on Wed Aug 10, 2005 at 03:04:50 PM PDT

  •  Wanna list?

    And none of them has to do with abortion...

    • The Terri Schiavo case (The public overwhelmingly thought it was a private matter.)
      
    • Selective Service (There are already lawsuits over the right to keep the info of high school boys out of the hands of the Pentagon).
      
    • Spam (The GOP sides with the USCoC, which defends all the spammers.)
      
    • Fax Ads (Ever lose a fax because some dickhead advertiser used up the last of your ink with HIS fucking ad?)
      
    • Telemarketing (We've already won that battle.)
      
    • Identity Theft (The GOP sides with the big businesses that make billions peddling YOUR personal info to the highest bidder.)
      
    • Eminent Domain (How long until this precedent is invoked against someone who really causes a stink?)

    If I wanted to spend another five minutes writing this, I could list five or ten more. EVERY ONE of these issues is a no-brainer as far as the public goes.

    I'm recommending this diary. Big time.

    by alysheba on Wed Aug 10, 2005 at 06:17:59 PM PDT

    •  see my proposed language below

      A ways down I've got a couple of lengthy comments including proposed language for an amendment.  

      Frankly I don't think we can catch "spam" under "privacy," but it can be outlawed via legislation.  We can however catch all the abuses of private-sector databases.  

      Eminent domain is an interesting question.  The key points I can see are "primary residence" (your actual home) and "among private-sector entities" (government shifts your home to WalMart to build one of their abominations, in order to increase the tax rolls).  But we don't want to go so far as to preclude every instance, for example the legitimate cases of real public good such as a new hospital or a regulated public utility; and we don't want to create a scenario where privately-held fiefdoms arise that are de-facto sovereign territories (it's not for nothing that we still use the word "land lord," and it's high time to do something about that also, though it's not a privacy issue per se).

      by G2geek on Wed Aug 10, 2005 at 06:57:13 PM PDT

•  Brilliant...

  The GOP is great about making their issues very clear, with graphic mental images that frighten voters.  It's not the young woman who has an abortion at 7 weeks, it's "partial birth abortions where the baby is torn apart..."

  So take this - which is one of our most cherished non-rights - and make people think about the government getting into their bedrooms.  That would scare most of them.

  And you're right - it's hard to sound good coming down on the "government has a right to know what you're doing" argument.

  by Derelict Dog on Wed Aug 10, 2005 at 02:48:19 PM PDT

•  I think this is a GREAT idea

  Sure, some Republicans will be against this.  But many will be for it, which makes it a wedge issue, just as the poster says.

  This should be part of the Democrats Contract with America, when they gear up to take back Congress in 2006!

  by BrentHartinger on Wed Aug 10, 2005 at 02:53:14 PM PDT

•  Hell yes!

  Now let's get organizing.

  Find yourself a hundred good campaigners in a hundred swing districts across the country, give them all copies of the constistution and get them to run for public office.

  Time for action!

  by 5oclockshadow on Wed Aug 10, 2005 at 02:53:37 PM PDT

•  I think its a great idea

  I've said so a few times and I have yet to hear any good reason not to do it.

  by demokerryat on Wed Aug 10, 2005 at 02:55:48 PM PDT

•  The person we voted for...

  We should have a right to keep our votes private too.  Diebold is probably doing away with that right.

  This is a great idea, maybe the best I have heard for the wedge in 2006 or 2008.  

  by DaleNC on Wed Aug 10, 2005 at 03:04:56 PM PDT

•  Some states

  already have amendments in their individual constitutions specifically protecting the right to privacy.  NH, for example.  We could model a US Constitution after those...

  Intellectual property rights, anti-spy rights while online, reader conscience rights (the government shouldn't be able to monitor your taste in literature, nor should the government be able to use private industry as an executive arm in lieu of its own power when it is prevented from abusing its powers by common law precedent or other statutory protections...)

  Reproductive rights are HUGE, no doubt about it, but privacy rights go way beyond women's wombs.

  by deep6 on Wed Aug 10, 2005 at 03:14:49 PM PDT

  •  I like the anti-spyware bent,

    God knows I want to string those guys up by their nuts!

    by verasoie on Wed Aug 10, 2005 at 03:30:40 PM PDT

•  outstanding idea

  ....a solid catch-22 on the for or against; in order to justify voting against repugs would have to claim that right was ALREADY GUARUNTEED by the first amendment. Of course, defending ANY argument that personal privacy is not something the body politic is keenly interested in is political suicide. Nothing could lead a populist Dem revolution more than a right to privacy election. Further, I think its the issue the repugs fear the most.

  by sparky22 on Wed Aug 10, 2005 at 03:33:33 PM PDT

•  Not the clear wedge issue you might think

  1. Conservatives, Republicans, Libertarians would support a Privacy Amendment, if it were VERY CLEAR that it supported financial privacy.  The amount of information that a person or a business is REQUIRED to give to the IRS strips people of ANY semblence of privacy.  The government knows more about your business and financial affairs than you do.

  2. Providing REAL financial privacy via a constitutional amendment would result in the collapse of the tax system.  Progressives would NEVER allow this.

  3. If it were evident that the purpose of the privacy amendment were to ensure SEXUAL privacy, it would arguably open the door to polygamy, child sex, incest, bestiality, any and all kinds of "unsafe sex", etc. etc.  Cultural conservatives (the majority of Americans) would shoot it down in a "New York minute".

  As George Bush senior once said: "Ain't gonna happen."

  by signalcharlie on Wed Aug 10, 2005 at 03:36:13 PM PDT

  •  Nonsense.

    A Privacy Amendment (PA) would have to be carefully crafted, but ALL rights in the Constitution have limitations.  That PA would not need to give blanket protection to incest seems rather obvious.

    Ensuring that individuals are relatively secure and free from excessive interference in their pocketbook, doctor's office and bedroom.  The details can be hammered out, but it puts the GOP on the defensive.

    by bktzoo on Wed Aug 10, 2005 at 03:56:53 PM PDT

    •  Nonsense squared

      You completely ignored my point.  Since there are no details  (something will be "hammered out") it is not at all clear how it puts the GOP on the defensive.

      I believe the GOP (and conservatives, and libertarians) will be way out in front in advocating for financial privacy.  It will be the Progressives who will be arguing that too much privacy will make it difficult for the government to make sure that people "pay their fair share".

      If progressives ignore the financial privacy issue and focus on "sex privacy", Jerry Falwell will get a tax on commercial sex acts passed, and the IRS will require you to document every such act. And, by the way, there is no such thing as "free sex".  Sex has a value in the market place, and so the IRS can require you to document "free sex acts", too, as "non-monetary income".

       

      by signalcharlie on Wed Aug 10, 2005 at 09:32:45 PM PDT

•  P{eople have actually been...

  ...diarying about this for weeks as the LUTFA amendment.

  Leave Me The F*ck Alone!

  by wonkydonkey on Wed Aug 10, 2005 at 04:51:51 PM PDT

  •  Call it the PA....

    ...that way it doesn't have the problem of being known by a name that contains a cussword.  That's important in terms of getting broad-based support.  

    Also PA stands for Pennsylvania, which is a slight poke at Rick Man On Dog Santorum:-)

    Privacy Amendment is a straightforward phrase, PA is short & sweet, and it'll fly.  

    by G2geek on Wed Aug 10, 2005 at 05:25:07 PM PDT

•  Brilliant! and keep pushing this!

  I'd give you ten Recommends if this were possible.

  You should also re-run this concept as a diary every week, with the title "Constitutional Privacy Amendment" (many folks won't get the "wedge issue" reference in the title of the present diary), to keep it on the radar and get more people signed up for the effort.

  Things to keep in mind for drafting the amendment:

  1.  Use broad langage of the kind the Founders used.  Broad general language based on general principles, stands the test of time and is not limited to present-day technologies.  

  2.  Make explicit: privacy in one's "body, mind, and soul."  The "soul" reference may seem like an endorsement of religion, but it prevents weaseling-around the idea of "mind" at some later date (long philosophical digresssion about "materialist monism" vs. "dualist interactionism" vs "pure dualism" omitted to save space). It also further supports freedom of religion and conscience, for example re. state-sponsored prayer and so on.  The state cannot force you to pray because doing so would be transgressing the privacy of your soul; and the state cannot force your hand on end-of-life issues (in either direction) for the same reason, etc.

  3.  Find a way to make explicit that it is concerned with consenting adults, but do not allow a loop hole that would enable the state to compromise privacy via children, e.g. collecting DNA samples from kids that become part of lifetime databases.

  4.  Provide the mechanism for exemptions under proper order of the court, exactly as done with search warrants.  The mechanisms for dealing with search warrants has already stood the test of time, it's a good template for the present case.  Exception for biological data, and "body/mind/soul" generally: any search of body/mind/soul has to be seen as equivalent to forcing an individual to testify against him/herself (see the part about brain scans below).  

  5.  Do not specify bedrooms and doctors offices etc., because those instances are too specific; instead stick to the general principles.  

  6.  Very difficult issues that will have to be dealt with in some manner (again via general principles):  

  a)  DNA.  Your DNA is the "source code" or blueprint for your body, including your brain, and thereby much information about your personality tendencies including sexuality, tendency to rebel against authority, sense of innate justice (as demonstrated by the presence of a sense of justice among higher apes such as chimps and bonobos), etc.  DNA as a means of establishing identification of a person (e.g. similar to fingerprints) should be allowed, as this will often mean the difference between convicting a guilty party and exhonerating an innocent party.

  b)  Brain scans.  There is presently technology that can read the "evoked potential" signal from the brain, which occurs when an individual recognizes a present stimuli as matching a memory.  This can be used to produce a "guilty knowledge" test that works against a person's will to avoid self-incrimination.  This is already being done, there is even a company specializing in it.  Advances in cognitive science will make possible even more precise readings, for example to determine a person's emotional state or other details that are presently inaccessible.  It is not too crazy to suggest that at some time in the future it could be possible to read out an individual's stream of internal verbal process, which is nearly identical to "reading their mind."  This needs to be dealt with.  

  c)  Individual consent to any and all biological samples, with no exception for court orders (see above about "computerized mind-reading," we do not want to allow courts to issue warrants for the contents of individuals' brains).  The state stops at your skin, i.e. whatever is inside your skin is absolutely sovereign and immune from search except with your freely-given consent (to allow innocent parties to appeal incorrect convictions, for example).  

  d)  No private-sector entity (corporations, private educational entities, etc.) will have the right to discriminate against any individual as a result of that individual's refusal to provide biological samples.  This would seem to interfere with legitimate cases where drug testing is necessary for safety, but in fact computerized tests are available that will detect impairment due to any cause (drugs, sleep deprivation, etc.) by using a simple keyboard-and-screen test an individual can perform in one minute.  One company for that is Langley-Bowles (Google them), and they are quite aware of privacy issues.  Read their website to get an idea of how companies can preserve impairment-screening without having to get into biological samples.  This "private-sector entity" item will also deal with issues such as genetic discrimination in health insurance, hiring, etc.  

  e)  Also related to brains and bodies: prosthetic devices are to be considered part of an individual's body and exempt from searches other than as needed to determine that they are not being used to conceal weapons.  The reason for this one is that there is potential for brain/computer interfaces wherein artificial devices (electronic or or bioengineered devices) could store data as an extension of natural brain memory, and we do not want to leave open that loophole (yes, this sounds like science fiction too, but so did the telephone in 1776, and yet the Founders' words protect us from unlimited wiretaps today).  

  f)  No use of RFID to track persons or their posessions against their will.  This will deal with the issue arising in Texas, plans to put RFID on every license plate.  Need an exemption for home detention, where detainees wear a radio transmitter (which after all is more humane than getting gang-raped in a prison cell!).  

  g)  Financial privacy is an interesting one; somehow we need to ensure that the tax system continues to function properly, without allowing Big Brotherism to spread further; I don't have an answer for that at this very moment but will be thinking about it.  

  h)  "Compelling state interest" standard for laws that infringe specific instances; for example, incest, bestiality, child molestation, truly dangerous drugs such as cocaine, heroin, methamphetamines, and bioterrorism via "suicide carrier."  This will deal with legitimate concerns about, for example, unlimited legalization of drugs or Rick Santorum getting naughty with his dogs.    

  I could go on in great detail about these issues, and would certainly like to be involved with any higher-level discussions leading toward drafting an amendment.  I've been thinking about these issues for years and have a broad knowledge of relevant technologies and their potential applications.  If you want to get in touch, let me know where to find your email address and I'll write.  

  by G2geek on Wed Aug 10, 2005 at 05:23:06 PM PDT

  •  The rocky reef the sinks the ship

    g)  Financial privacy is an interesting one; somehow we need to ensure that the tax system continues to function properly, without allowing Big Brotherism to spread further; I don't have an answer for that at this very moment but will be thinking about it.

    Well, if the government can see how, where, and why you spend all your income, there's damn little about your life that will be private.

    by signalcharlie on Wed Aug 10, 2005 at 09:40:02 PM PDT

  •  The Federal soul?

    Make explicit: privacy in one's "body, mind, and soul."  The "soul" reference may seem like an endorsement of religion, but it prevents weaseling-around the idea of "mind" at some later date ...

    I presume that this will likely be the first and only use of the term "soul" in the Constitution.

    This might possibly introduce some ambiguity and create some thorny legal debates down the road, depending on whose definition of "soul" the courts ultimately rely on.  It would change things dramatically if courts opted for James Brown's concept of "soul" in preference to St. Augustines.

    by signalcharlie on Wed Aug 10, 2005 at 09:50:44 PM PDT

    •  common ontological definition implied....

      
      When one uses the phrase "body, mind, and soul," it implies the common ontological usage, wherein "soul" is defined as the essence of a person, as distinct from their physical body, their words, and their deeds.  

      Yes, this implies some flavor of dualism; but in fact the use of the word "mind" next to "body" implies the same thing.  Otherwise we would simply say "body including brain," for the materialist-monist flavor.  And if we were of the behaviorist inclination, "words" would be a subset of "deeds."  

      However, what we are concerned with here is the use of these terms in common philosophical discourse, which is how they would be used in a legal context, and which not the same thing as the more technical usage in philosophical discourse within consciousness studies and cognitive science.  

      And as well there's my point about protecting the privacy of conscience in matters of religion.  Consider this:

      The right to "be secure in your persons, papers, and possessions..." is where we get the modern right to privacy even though it is not explicitly written in the text.  And as a result this becomes an issue for contention, and the potential exists for significant losses because it was not spelled out.  

      If we don't specify "soul," then we leave the same door open as far as religious matters are concerned: the murky gray zone where individual conscience in this area could be willfully transgressed by acts of the state that don't in and of themselves rise to the level of "establishment of religion."  For example the matter of religious pressure at the Air Force Acadamy.  
      

      by G2geek on Thu Aug 11, 2005 at 01:50:48 AM PDT

      •  I don't think so

        "common ontological definition implied...."

        Good grief. Big time politicians aren't even clear on the definition of "is".

        This is a non-starter.

        by signalcharlie on Thu Aug 11, 2005 at 12:05:00 PM PDT

•  here's some language for an Amendmt

  Try this:  

  The right of individuals to the privacy, security, and integrity of their bodies, minds, souls, and the information associated therewith, shall not be infringed by act or omission of Congress or the Executive branch.

  Possible modification:  add, at the very end:  ...except upon a finding of compelling state interest.  This may be seen as allowing loopholes, but it confines the exception to only those instances that meet a very high legal test which is already well established.  Adding this part creates an exception, but the exception is limited, whereas failing to add this part could allow larger exceptions to be carved out subsequently.    

  Key point: "...souls...."   This protects individual religious belief from infringement, which is stronger than only preventing the establishement of religion by the state.  It protects atheists from acts by a religiously-oriented government.  It also protects the religious from acts by an atheistically-oriented government (hypotheticals: mandatory abortions, mandatory artificial life support, etc.  And while it could enable parents to "opt-out" their kids from teaching of evolution, it also keeps denominational doctrines such as creationism out of the public school science classroom).  

  Key point:  "act or omission "  

  This compels Congress to enact enabling legislation to assure the privacy etc. of your body etc.  It thereby puts in place a mechanism for dealing with private-sector violations such as credit databases that share your grocery shopping preferences, negligently insecure financial databases, insurers using DNA to deny coverage, etc.  That is, Congress is compelled to not omit such cases and must therefore pass legislation addressing them in conformance to the spirit of the Amendment.  

  Key point:  "...or the Executive branch."  

  This precludes executive/administrative entities from making an end-run around the Amendment on the claim that specific instances have not been addressed by Congress.  

  What's not been dealt with:

  Financial information as such, of the type needed for taxes.  We could try something like, "bodies, minds, souls, livelihoods..." but that starts to become a laundry list and it does create the basis for undermining the state's legitimate interest in taxation.

  Frankly I see no way to reconcile financial privacy a tax system based on earned personal income.  Capital gains are easy, they are not earned by a person, they are earned by a person's capital, so it is still possible to collect sufficient data as needed for effective taxation of capital gains.

  Also since a corporation is not an "individual," corporate income can still be subject to effective data collection as needed for taxation.

  And here we should also note, specify "individual" rather than "person," because the latter is open to interpretation that it covers "legal persons" i.e. corporations, as well as "natural persons" i.e. flesh-and-blood persons.  

  And we do not want to specify "natural persons" because that in turn could be twisted to exclude persons who are not concieved or born via "natural" means: for example a race of slaves bred in test tubes.

  One way to deal with the tax issue is:  Keep the capital gains taxes, as per the arguement above (income earned by the capital, not by the person).  Remove "earned income" from taxation altogether and substitute a Value Added Tax (VAT) European-style, on goods and services, exempting essentials such as staple foods, clothing up to a threshold price per article, housing up to a threshold value based on each local market, electricity, communications (e.g. books, newspapers, and their electronic equivalents), medical care, legal services provided in defense of a criminal case (subject to indigency test), and so on.

  But I don't want to see this sidetracked over financial issues; "love of money is the root of all evil," let's start with the core essentials of keeping the state from getting inside your skin.  

  By the way, you can expect that the private sector data brokers, including the credit databases, will howl like stuck pigs if this thing even gets proposed.  Expect them to play the dirtiest poker of all because a PA will directly impact their present business models.  

  And last but not least: again, re. science-fiction issues such as computerized "mind-reading" and test-tube-to-delivery babies: today's science fiction is tomorrow's technology, and we ignore the possibility at our peril.  The Founders never imagined the telephone, internet, etc., but their language was intended to cover instances that could not at the time be foreseen.  

  by G2geek on Wed Aug 10, 2005 at 06:50:24 PM PDT

•  Important point: wedge issues are made to

  divide up your opponent and win elections, not necessarily ever become law.

  I think some of you may be losing sight of the fact that the important thing here, in the short term at least, is that this will put Republicans on the defensive and make them have to argue against privacy, which will cost them dearly at the polls.

  The Republicans have been doing this for ages, choosing wedge issue battles that, even if they lose, help them win districts.  Think of flag burning, or even abortion.  They've been able to milk those for decades now to portray themselves as the party of family values and patriotism (despite the fact that they are neither).

  We could use this to impress upon the public that we are for American values, upholding our basic rights, people over corporations, etc.

  That is the most important thing about this, at least insofar as 2006 is concerned.

  by verasoie on Wed Aug 10, 2005 at 08:39:58 PM PDT