Time For Amendment XXVIII--The Right to Privacy

Time For Amendment XXVIII

    Edward Snowdon may be a traitor or a hero, but whatever your take on that, he has laid bare the stunning disregard for the Fourth Amendment now practiced by the American government. How the Professor of Constitutional Law who currently occupies the White House could allow such blatant disrespect for the Fourth Amendment become the norm is beyond understanding.  Unless we realize how we got here.  We panicked after 9/11.  We cried out that nothing like that should ever have occurred, and unleashed the watchdogs to try to ward off future attacks.  We gave Bush and Cheney and crew full license to restrict and invade our privacy, in a wishful exchange for security.  Now, alas, we have neither privacy nor security, but also no transparency, no accountability, and no representation.  Even our elected representatives have sold us out, sitting blandly through oversight hearings, and raising no objection, until Congress's own computers were hacked by the NSA.  Then they got up on their hind legs and bleated forlornly, but to no avail.  The spooks continue on unchecked. And the current lame duck finds he must be even more macho than the lame ducks he replaced.
    You may say, "I have nothing to hide, so why should I care if they collect my data?" The answer may come to you when your political opinions become politically incorrect, or perhaps when that snide and slightly racist joke you forwarded to friends becomes public knowledge.  Or, when you get referred to the IRS for your beliefs, and your taxes get a twice over. That Demand Letter from the tax examiner may help to sharpen your understanding.  The trouble is, this stuff is being stored forever, and can be brought out in unimaginable and illegal ways.  It is illegal and unimaginable that it is even being collected, so don't count on legality to protect you later.  The Fourth Amendment is clear.  "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."  None of that command is currently being honored.  The secret court which grants warrants does not require probable cause, nor oaths or affirmations, only a request from the NSA.  There is no description of the place to be searched and the persons or things to be seized, only a broad brush statement of possible relation to national security. No other Court has ever been secret, with the names of the judges unknown, and the cases unstated. This court does not even use an adversarial process.  A prosecutor presents lists, and a judge, in secret, decides, with no one representing the targets, even generically. A true Court, worthy of the name, cannot function that way. We have deviated so far from the protections afforded by our Constitution, that we are in danger of losing our democratic form of government, our republic.
    This debacle has yet to be decided by the Supreme Court, but given the current makeup, it is unlikely that the so-called textual conservatives will find their fidelity to the text any barrier to supporting the government's overreach. That is a shame.  I had hoped that our professed love for the Constitution as written might exert some pull on our government's actions, but alas, I am deluded.  This is not the first time in our history that our government has gone off the rails and violated the Constitution and our rights to representation.  There is a long history, from the Alien and Sedition Act of 1798, to the Dred Scott decision, to "Separate but Equal" doctrine of Plessy v. Furguson, to the internment of the Americans of Japanese descent in WWII validated in the shameful Korematsu v. US decision. In such instances, the People have always had the right to react to bad government by using the amendment process, and in some of these egregious instances, we have done just that. So it may be time again for us, the People of the United States, in whom all political legitimacy and power ultimately resides, to underscore our disagreement with the direction of our government, and amend our Constitution.  The Right of Privacy has been taken for granted, assumed to be covered indirectly by the First, Fourth, Fifth and Ninth Amendments, but is nowhere stated explicitly.  I believe it is time to push that forward.  The founders felt that these propositions were so self-evident, that stating them explicitly was unnecessary and redundant.  But their sensibilities would surely be violated by our blind eye to the obvious today. I suggest, fellow Citizens, that we use the process prescribed in our Constitution, to express the will of the People, and lay down in foundational law, the Right to Privacy in one's body, dwelling, relationships, writings and communications, and require that the Fourth Amendment return to its original and proper function.  I suggest that Congress is incapable of any principled act, and that only the will of "We the People" can draw us back from the quagmire we find ourselves in today. We the People must act, and We the People must prevail.

Reality Doesn't Pay Attention to Polls

     Here in America, we believe in majority rule.  That proposition is actually never stated in the Constitution, but was a consensus that developed during the original ratification process, though it never made the text. Although not Constitutionally explicit, majority rule is nevertheless part of our DNA, part of our national understanding.  So it is no surprise that we generalize the concept to everything else under discussion. We don't even need elections to determine that majority rules.  A poll will do.  Proposition:  Angels exist in this world.  Poll:  A majority of Americans agree that angels exist.  Therefore, Angels exist.  Proposition:  Vaccines cause Autism.  Poll:  A majority of Americans agree that vaccines cause autism.  Therefore, vaccines cause autism.  We don't seem to care about reality, only about perception.  "Perception is reality."  I have been told that a few thousand times in my client relations work. But perception is not reality, except for the perceiver.  You may not believe in electricity, but contact with a 220V line while in contact with the ground will either convince you or remove you from the gene pool. You may not understand, but you WILL believe.  There is a certain Darwinian logic here you may not appreciate, but still, it is hard to deny. 
    You may feel badly that a child dies of whooping cough, and it is hard to watch, I can tell you.  Two generations ago in the US, more than 50 thousand children died every year from whooping cough, caused by the bacterium called Bordatella pertussis.  Fifty THOUSAND.  That is a lot of dead kids, and a whole lot of grieving families.  Then along came the vaccine, and that number hit zero in ten years.  There may or may not have been some casualties among the vaccinated.  Maybe 150 per year.  Tragedies indeed, if indeed they were even caused by the vaccine, but wait, take a second to contemplate that balance of harms.  Even IF, and that is a big if, the vaccine caused 150 deaths, it prevented 15,000, for a net of 14,850 survivors.  And the disease disappeared as a public health concern.  Until a few people, convinced by pseudoscience and celebrity nonsense, decided to opt out for their children, because the disease is wiped out, and why take the unimaginably small risk for MY special, unique child? So the disease took advantage, gained a foothold, found new reservoirs, and started killing kids again.  Public opinion, it would seem, does not regulate bacteria or viruses.  And the children of the magical thinkers pay the price.  Darwin may not have anticipated how human superstition would function as a survival disadvantage, but the results are undeniable. You opt out because a former Playboy Bunny says vaccines are bad on the morning news, and maybe your kid dies of a preventable disease. Maybe you have more offspring, maybe your genetic tendency to credulity survives to the next generation, but maybe not. The odds are not in your favor. But it is good for the herd.  Maybe the gene for critical thinking will become more prevalent, and maybe the magical thinking gene will decline.  Sorry about your kid, but she was a victim of her own parents'  stupidity.  We try as a society to protect kids from their parents, but that is the hardest battle to win of all.  Social workers will testify to that fact without hesitation. They do their best in their anti-Darwinian labors, but fail all too often.  When we eat our own young, there is not much society can do about it. The implacable force of natural selection continues to operate, without a care about any individual, or even any herd, and certainly without a care about majority opinion.  So think hard about what you believe.  Try to differentiate what you believe from what you know.  Try to understand that there is much you do not know, and much you need to know, if we are to survive. A little doubt can be a good thing.