Constitution Day 2013

The alarming erosion of our right to privacy

We celebrate Constitution and Citizenship Day this year having learned about the extent to which the U.S. government is involved in tracking and monitoring the affairs of ordinary Americans under the guise of security. The already-fragile balance between freedom and safety in a democratic society is unfortunately being tilted toward the latter. The question is how to reestablish the equilibrium.

The concept of privacy found in the Constitution and the Bill of Rights was included as a direct result of England’s treatment of colonists during the revolutionary era of American history, when arbitrary searches, arrests without cause, and seizure of property were common. Accordingly, the Constitution references privacy interests indirectly in the Preamble and upholds limitations on national and state government action in Sections 9 and 10 of Article I.

But the most familiar protections pertaining to privacy are found in the Bill of Rights, specifically in Amendment IV preventing unreasonable searches and warrants without probable cause, Amendment IX which guarantees rights to the people not otherwise listed in the Constitution, and extension of the aforementioned rights to the state level though the 14th Amendment due process clause. Although not usually regarded as a privacy right, some constitutional scholars point to a freedom not to speak as a corollary to First Amendment free speech protection.

The reasons for the diminution of privacy rights by American citizens are diverse. First, the growth in response to the complexity of American society brought government closer to the people, but also increased the likelihood of unwanted interference from authorities. Further, certain court decisions in the area of federalism expanded the reach of the national government at the expense of states, a pattern which has only recently reversed.

Additionally, power asserted by national authorities during and after emergencies has augmented challenges to privacy, particularly in the post-9/11 era. Finally, ignorance of government’s broad reach – some say overreach – permits invasive policies to continue. Sometimes we forget the principles of the Declaration of Independence which were integrated into the Constitution: that government must be limited, based on consent of the people, just, and able to adapt with the times.

Having to deal with the consequences of the loss of privacy is not a concern for those who never recognized its value to begin with. But for others the change has been stark. To discover that all electronic and wire communication between Americans over the last several years may have been archived by the National Security Agency or other entities of the federal government in the fight against international and domestic terrorism is naturally to wonder what that compilation of information will be used for.

After all, government intersects our lives already at birth and death (certificate) on April 15 (taxes), when we acquire some service performed by authorities (such as electricity or garbage removal), and during daily travel outside of home (most modes of transportation) just for starters. To the law-abiding, middle-aged American citizen, the prospect that the government may have the capability to track any part of a person’s normal routine is not surprising; that officials have chosen to do so when there is no individual suspicion or need to violate basic confidentiality is what is offensive.

Witness the invasive changes in airline security measures just over the last decade, which have gone from metal detection to removing parts of clothing and shoes to visual display of one’s body. Once on the periphery affecting a few, these violations of intimacy have made their way to the mainstream of American society, such that we are lulled into the assumption that burdensome security measures actually furnish utilitarian benefits.

Recouping privacy rights means reclaiming our status as individuals, and it doesn’t mean we have to become hermits to do so. It starts with education: to make Americans aware of their rights before the light of their liberty is irrevocably extinguished. Once cognizant of our plight, we need to advocate for a reasonable yet limited approach which does not stifle authentic criminal justice and anti-terrorism pursuits.

By adopting this strategy, we will be able to salvage the true intention of those rights which our predecessors fought for and periodically died to ensure.

Dr. Samuel B. Hoff is George Washington Distinguished Professor of History and Political Science and Law Studies Director at Delaware State University.