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I have passed enough references to privacy, a generalinterestof mine, to warrant another post on the subject. First, someone referencedFederalist No. 10, which underlines the problems with strict reliance on popular will. Thus, we live in a republic, where direct democracy is tempered in various ways:
Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties ... particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other ... to secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.
A "republic" in ultimately is concerned with "public things," which leads one to the reality that there is something else. An important aspect of revolutionary thought, those things "for which we stand," is the realm of private thought and action. It was eminently appropriate for various justices in the Griswold ruling to reference the right of privacy as "from the totality of the constitutional scheme under which we live." As Justice Douglas noted a few years before in Poe:
"Liberty" is a conception that sometimes gains content from the emanations of other specific guarantees or from experience with the requirements of a free society.
The issue there was privacy as well. I referenced Peter Irons' book on religious disputes, including the Newdow case. The Supreme Court in that case avoided the question, though three justices would have upheld the practice, emphasizing the hesitance of getting involved in family matters. It noted:
One of the principal areas in which this Court has customarily declined to intervene is the realm of domestic relations. Long ago we observed that "[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States."
Likewise, the Supremes noted in the guns in school zones case that there was a hesitance to allow Congress, unless clearly authorized by law and the Constitution, to get involved in "an area of traditional state concern." Thus, the latest Cato Supreme Court Review* has a chapter assuming the partial birth abortion ruling was based on federalist grounds (and going the other way). The general idea suggested here is that certain things, like same sex marriage bans, simply are not the realm of Congress. Surely, when they single out certain "immoral" acts as compared to general principles.
The opening quote brings to mind various complaints that current majorities (a Republican minority plus Democratic enablers) infringe upon our rights. A glaring example concerns the FISA law, which makes clear important principles (privacy, rule of law, congressional power, etc.), or rather, their violation. John Dean has written a trilogy of books addressing the excesses of the Bush Administration and conservatives (put quotes around that if you like) these days, and his Findlaw columns also touch upon such issues. He references an useful essay on privacy:
The concept of "privacy" encompasses many ideas relating to the proper and improper use and abuse of information about people within society. Privacy protects information not only because it would cause others to think less of the person at issue, but also simply to give us all breathing room: "Society involves a great deal of friction," Solove writes, "and we are constantly clashing with each other. Part of what makes a society a good place in which to live is the extent to which it allows people freedom from the intrusiveness of others. A society without privacy protection would be suffocation, and it might not be a place in which most would want to live."
This need for "breathing room" reminds me of the movie First Monday in October, the Matthau movie based on the 1970s play visualizing the first women justice. One scene references an opinion of the liberal justice (based on Douglas, who didn't really care for the play, thinking it not really true to life) on the importance of privacy. He noted that God created the universe alone. If he had company, the glories of creation might be replaced by strip malls. I'm paraphrasing -- it was a nice metaphor.
And, now back to our regular scheduled programming. Indians ... come on guys!
* The annual series provides analysis of the last term of the Supreme Court via a generally libertarian mentality via essays by different legal sorts. Interesting, and dissent on such issues like affirmative action is a useful thing. Still, sometimes too simplistic, like one person assuming we all at the beginning -- before we f-ed things up an all -- agreed on the basics of constitutional principles. When Hamilton and Madison debates things in the early 1790s, this Golden Age must have been very short.