Saturday, August 06, 2011

The right to privacy redux

I have been prompted by circumstance (don't ask, it's complicated) to read parts of the Constitution of India. It is, according to Wikipedia, the longest constitution of any of the world's democracies, and at 417 pages (including an index) I believe it.

The part that has become of particular interest to me of late is Part III - Fundamental Rights. It's the Indian counterpart to the first ten amendments to the U.S. Constitution, and it includes this:

19. (1) All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practise any profession, or to carry on any occupation, trade or business.

Ever since Roe v. Wade, American conservatives have been on the warpath against so-called "penumbral rights", those rights that are not specifically enumerated in the Bill of Rights but are inferred to exist under the auspices of the ninth amendment, which Robert Bork famously referred to as "an inkblot."

To those who would deny the ninth amendment's imputation of a right to privacy I put the following question: do American's have the right "to move freely" through the United States? Or is this a privilege granted to the people by the government (like driving) that could legitimately be taken away if the government saw fit to do so?

It's an interesting question in light of the explicit granting of the right "to practise any profession, or to carry on any occupation, trade or business" in the Indian constitution. Americans specifically do not have this right. To be a lawyer or a doctor, even in some places a massage therapist of a hairdresser, you must obtain a license from the government. You don't need a license to move to a different house. But could the government Constitutionally require one?

I think that the idea that freedom of residence (modulo one's ability to afford it) is not a fundamental right is anathema to the American spirit. And yet nowhere in the text of the U.S. Constitution is this right to be found. The Bill of Rights grants us (at least ostensibly) the right to be secure in our houses, but not to change them at will. So if you're a right-to-lifer of the Borkan persuasion, I don't see any way that you can argue that the ninth amendment does not grant a right to privacy without also taking the position that the government can, if it wants to, restrict where you can live.

That is, unless you're willing to be a hypocrite. But then again, hypocrisy is not in short supply on the right these days.

Personally, I can hardly imagine a more un-American attitude.


Dennis Gorelik said...

Why did you even choose that "privacy" topic for today if there is much more obvious choice: US Government credit rating downgrade.

Ron said...

You must not have noticed the title of this blog :-)

Seriously though, I don't feel I have anything worthwhile to say about the credit downgrade. It should come as no surprise to anyone. (The only thing that surprises me is that anyone still pays attention to what the ratings agencies say after the subprime fiasco.)

Dennis Gorelik said...

These credit agencies still have legally enforced power to define who can invest into what organizations.
Besides, it's a nice slap in the face of overspending government.

Josh said...

Possibly your greatest opening sentence, ever: "I have been prompted by circumstance to read parts of the Constitution of India."

Ron said...

Thanks. I try to keep it lively.

John Dougan said...

Eh, not really a good comparison. I believe the US Constitution of 1787 was intended to have a different character than most other constitutions. Its fundamental stance is that any power not explicitly granted to USG is devolved on the states, or the people. The various Amendments, particularly the 10th, were intended to make the core protections explicit since a number of the delegates to the constitutional convention were unsure that the procedural protections were good enough, despite Hamilton's reassurances. Since then, of course, it is clear that the nervous delegates were quite right as unfortunately the protections weren't strong enough and the role of the judiciary too ill defined to keep the governments from acquiring powers not really assigned to them.

The US Constitution of 1787 was a grand experiment to see if by having an explicit written prime law you could avoid the descent into tyranny. I think we now have an answer to that question, and the answer is no.