Original Intent and privacy

In relation to the U.S. Constitution, the concept of “original intent” is interpretation of the text and use of interpretative tools in order to ascertain lawmakers’ static communicated meaning to the exclusion of contemporary meaning and normative considerations. It assumes the Constitution’s meaning was fixed at the time of ratification (Solum, 2013, 29-32). In originalist terms, the Constitutional interpretation gives effect to the intent of those adopting the text (Cooley, 1878). Originalism is the best theory of interpretation because it best fits existing Constitutional practice and best secures the common good (Stang, 2019, 3). Originalism is also the most honest interpretive method because judicial scholars have the ability to look back in time and determine intent based on historical documents and other artifacts. It would be disingenuous to pretend that judges today could accurately predict how someone’s legal reasoning may or may not have evolved hundreds of years hence.

The famous English jurist, William Blackstone, enlisted five considerations to aid in originalist interpretation: 1) “words … in their usual and most known signification”; 2) legal context; 3) “subject matter” or broader context; 4) “effects of consequences” of different interpretations; and 5) “the reason and spirit of it; or the cause which moved the legislator to enact it” (Blackstone, 1769, 59-62). Originalists interpret the Constitution by attempting to determine the original intent behind each provision and the document’s original public meaning. Original intent can be applied to my primary public policy area of interest, which is privacy. Although the word “privacy” does not appear in the text of the Constitution, the right to privacy is an implied Constitutional right that lies just beneath the surface of the text itself (McCarthy, 2018). Correct originalist interpretation has resulted in a modern-day “right to privacy,” although the scope of this right has been expanded beyond what was envisioned by the Framers and now includes a right to birth control, abortion, etc.

Much of contemporary privacy law has its roots in Fourth Amendment search and seizure safeguards. Several recent Supreme Court cases have ruled that the main criterion for assessing whether searches and seizures are “unreasonable” within the Constitutional construct is whether they would have been allowed by eighteenth-century common law (Sklansky, 2000). While the Founders likely could not have imagined the ease and low cost with which personal data can be discovered today, they certainly understood human nature and the threat posed by a tyrannical government. After all, they had just recently rebelled against the British crown, which regularly used soldiers (i.e., force of law) armed with general warrants (and weapons) to make colonists turn over personal items to include potentially incriminating documents. In the case of exploding a safe filled with personal effects (the modern equivalent of scanning a hard drive), what took great physical effort in the late 1700s today can be done surreptitiously and often without the subject’s knowledge. Just because violating someone’s rights is cheaper, easier, and can be done without one’s knowledge does not make it right (or legal). Government must resist the temptation to invade the privacy of its citizens who, ironically, paid for the spy tools with their hard-earned tax dollars.

 

References

Blackstone, William. Commentaries on the Laws of England (1769).

Cooley, Thomas M. A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union, 4th Edition (1878).

McCarthy, Eugene. In Defense of Griswold v. Connecticut: Privacy, Originalism, and the Iceberg Theory of Omission (July 2018). Willamette Law Review, Vol. 54, No. 2 (2018). https://ssrn.com/abstract=3219943

Sklansky, David A. The Fourth Amendment and Common Law, 100 Columbia Law Review 1739 (2000). https://law.stanford.edu/wp-content/uploads/sites/default/files/publication/668462/doc/slspublic/Sklansky%20100ColumLawRev1739.pdf

Solum, Lawrence B. What Is Originalism? The Evolution of Contemporary Originalist Theory, The Challenge of Originalism: Theories of Constitutional Interpretation (2013).

Strang. Lee J. A Brief History of Originalism in American Constitutional Interpretation. Originalism’s Promise: A Natural Law Account of the American Constitution, n.d. Cambridge University Press. doi:10.1017/9781108688093.002 (2019).

Rick Newbold Written by:

Mr. Newbold has been working in the national security field since 2003 and has been an IAPP-certified privacy professional since 2007. He holds a JD from Regent University, an MBA from Thunderbird School of Global Management, and an LL.M. in National Security Law from Georgetown. Mr. Newbold is currently pursuing his Ph.D. in Public Policy. He has contributed to several national-level documents and participates in a number of public policy-related working groups.

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