RandFan
Mormon Atheist
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How about a toilet where no one can see you but you can see them?A funnier experiment: ask them to go to the bathroom doing a #2 while someone is watching them.
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Right to Privacy
- Thread starter TimCallahan
- Start date
iangoeswest
Scholar
- Joined
- Jan 5, 2013
- Messages
- 80
Oh man, it's all downhill from here
@Randfan – I very much appreciate your kind comment. Thank you.
I do not consider that the person raising a question is responsible for its answer (beyond the phenomenon of “JAQ ing off,” which was plainly not what you were doing), and as such have no point which I`d oblige you to address.
That being said, and in hopes of driving us down the road (while encumbering the risk of taking us off-thread), the lurking issue which grabs me is the question of the source of rights. I’ll work to write economically, although such is slightly contrary to my professional norms…
The short piece is that the theory of “rights,” historically, has run down two different roads. The first is the notion of “natural rights” – the idea that we have innate rights which in whatever fashion come from “out there” – nature, God, or “the way of things” in the most charitable formulation. The second road is legal “positivism” – that our rights, such as they are, come only and wholly from the systems we’ve created.
Each view is problematic. Proponents of natural rights are obligated to justify their source, which leads generally to the type of unhelpful discussion which arises all too often on these threads (it is worth noting for accuracy’s sake that the Framers of the US Constitution were to a man proponents of natural rights – “we hold these truths to be self-evident, that all men are endowed by their creator,” etc.)
Legal Positivists reckon that the only “rights” are the dispensations we create; a “right” is only a “right” because it is granted as such. This has its own problems, Kantian in nature; the idea that the grand offerings of the “Bill of Rights” are nothing more than the best that some guys in 1790 could come up with bristles against the common American Narrative (there are other difficulties suggested by this view, but for the moment I leave them to the side).
All of which is to say, it is difficult to parse an idea such as the “right to privacy” without a more robust discussion of what we mean by a “right” in the first place. That is, is our “right” to privacy only that which we can wring from the various pronouncements of the Constitution (as Justice Douglass sought to do with his formulation of penumbrae) or is it in fact something larger than that?
Beyond the heady stuff, I’d assert that our rights – whatever they may be – are greater, by design, than those enumerated in the Constitution; to think otherwise is to read the Ninth Amendment right out of the text.
But I say the above with no Trojan horse; I offer no particular “rights” lurking behind the curtain which I’m looking to press. I rather ask the question, given that the Constitution itself alludes to rights not enumerated therein, what is the principled mechanism – here in 2013 – for uncovering them?
That you, Randfan (or anyone else) may have uncovered (or stumbled over, for this is a common enough mechanism) this issue by design or happenstance does not obligate you to provide an answer. I note only (to start) that it is a lurking issue of interpretation which has been poorly engaged by this, or most, modern Courts.
Again, whew! I felt drawn to follow up a bit by your laudatory comments which made me feel all warm and whatnot, but at this point will withdraw for a moment in order that other minds may fill the space with thought.
- Ian
@Randfan – I very much appreciate your kind comment. Thank you.
I do not consider that the person raising a question is responsible for its answer (beyond the phenomenon of “JAQ ing off,” which was plainly not what you were doing), and as such have no point which I`d oblige you to address.
That being said, and in hopes of driving us down the road (while encumbering the risk of taking us off-thread), the lurking issue which grabs me is the question of the source of rights. I’ll work to write economically, although such is slightly contrary to my professional norms…
The short piece is that the theory of “rights,” historically, has run down two different roads. The first is the notion of “natural rights” – the idea that we have innate rights which in whatever fashion come from “out there” – nature, God, or “the way of things” in the most charitable formulation. The second road is legal “positivism” – that our rights, such as they are, come only and wholly from the systems we’ve created.
Each view is problematic. Proponents of natural rights are obligated to justify their source, which leads generally to the type of unhelpful discussion which arises all too often on these threads (it is worth noting for accuracy’s sake that the Framers of the US Constitution were to a man proponents of natural rights – “we hold these truths to be self-evident, that all men are endowed by their creator,” etc.)
Legal Positivists reckon that the only “rights” are the dispensations we create; a “right” is only a “right” because it is granted as such. This has its own problems, Kantian in nature; the idea that the grand offerings of the “Bill of Rights” are nothing more than the best that some guys in 1790 could come up with bristles against the common American Narrative (there are other difficulties suggested by this view, but for the moment I leave them to the side).
All of which is to say, it is difficult to parse an idea such as the “right to privacy” without a more robust discussion of what we mean by a “right” in the first place. That is, is our “right” to privacy only that which we can wring from the various pronouncements of the Constitution (as Justice Douglass sought to do with his formulation of penumbrae) or is it in fact something larger than that?
Beyond the heady stuff, I’d assert that our rights – whatever they may be – are greater, by design, than those enumerated in the Constitution; to think otherwise is to read the Ninth Amendment right out of the text.
But I say the above with no Trojan horse; I offer no particular “rights” lurking behind the curtain which I’m looking to press. I rather ask the question, given that the Constitution itself alludes to rights not enumerated therein, what is the principled mechanism – here in 2013 – for uncovering them?
That you, Randfan (or anyone else) may have uncovered (or stumbled over, for this is a common enough mechanism) this issue by design or happenstance does not obligate you to provide an answer. I note only (to start) that it is a lurking issue of interpretation which has been poorly engaged by this, or most, modern Courts.
Again, whew! I felt drawn to follow up a bit by your laudatory comments which made me feel all warm and whatnot, but at this point will withdraw for a moment in order that other minds may fill the space with thought.
- Ian
Chaos
Penultimate Amazing
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- Sep 15, 2003
- Messages
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From where I am standing - a grumpy old cynic presently working for a human rights NGO - the trouble with "natural rights" is that whatever rights you naturally have or be due or whatever doesn´t mean squat, in practice, unless these rights are defended and/or enforced. Torture is illegal by Chinese law, yet untold numbers of Chinese prisoners are tortured. Iran has signed international treaties guaranteeing (among other things) freedom of religion, yet they are imprisoning untold numbers of "apostates" who converted from Islam to (for example) Christianity. And so on...
The problem with Positivism is that, if rights arise solely from being granted, what´s ever going to stop people from granting themselves all sorts of rights you really wouldn´t want them to have - such as the right to own other people as property or the right to kill those they deem "subhuman", to name just two? Or looking at it from the other side: why should a certain right be granted to people - for example why should we give gays the right to marry, if rights arise solely from being granted and the bigoted majority does not like that? I just can´t see any Positivist position that can consistently argue for or against certain rights.
Beerina
Sarcastic Conqueror of Notions
- Joined
- Mar 3, 2004
- Messages
- 34,826
Yes, keep forcing government to get warrants. All the historical evils private people use with said information pales compared to what government does with illegally-obtained information.
iangoeswest
Scholar
- Joined
- Jan 5, 2013
- Messages
- 80
replies to Chaos and Beerina
@Chaos:
> the trouble with "natural rights" is that whatever rights you naturally have or be due or whatever doesn´t mean squat, in practice, unless these rights are defended and/or enforced.
Agreed. It might be helpful to distinguish between rights as a concept and the facts on the ground, if only for the purpose of this discussion (here I cede the high road to all grumpy old cynics continuing to fight the good fight!) . This notion was recognized by those same Framers of the U.S., who generally chose their words with care (with some exception as might later arise) – consider their word choice in characterizing certain rights as “inalienable.” This doesn’t mean that everyone finds expression of those rights, and it doesn’t mean that everyone gets to exercise those rights; what it means, in a literal sense, is that the right cannot be transferred or bargained away. “Inalienable.” An interesting choice, IMO, as it seems to acknowledge that rights can be denied or suppressed without diminishing the existence of the rights themselves.
This was a useful turn of phrase for a people who were essentially advocating for support of their rights on a world stage – the Declaration of Independence, oft quoted but seldom read, carries the tone of a persuasive argument – one designed to rally sentiment to a cause. As much as a decade of B. Franklin tottering around Paris in a raccoon-skin hat, the Declaration of Independence made a case for rights of natural vintage which was persuasive to those who needed persuading, if those rights were to find expression (I speak here less of fence-sitting British loyalists and more of moneyed Frenchmen trying to decide if the team they were thinking of backing was a winning one).
This is perhaps navel-gazing to those in oppressed conditions who hunger for righteousness; my point is that the criticism of natural rights theory as impractical is itself a very positivist argument; to a natural rights theorist, the right exists whether or not it finds expression.
> The problem with Positivism is that, if rights arise solely from being granted, what´s ever going to stop people from granting themselves all sorts of rights you really wouldn´t want them to have - such as the right to own other people as property or the right to kill those they deem "subhuman", to name just two?
Here it is worth noting that, in the original American design at least, a “right” is generally defined as a sphere of interest on which government may not intrude. Most (not all) significant American rights are negative in character – “Congress shall make no law…” (this is less true of the post-Reconstruction Amendments, i.e., 13-15, but I would argue that these Amendments created a second republic of such different character than the first as to deserve separate narrative treatment and analysis). So, there is a historic structural limitation regarding the sorts of “grants” you suggest.
This does not detract from the force of the criticism, which is that positivism is amoral by definition; it’s only as good as we make it, forcing us to define “good” and creating the sort of goalpost problems I referenced in an earlier post. I wholly agree with this criticism.
> Or looking at it from the other side: why should a certain right be granted to people - for example why should we give gays the right to marry, if rights arise solely from being granted and the bigoted majority does not like that?
Good question. Why indeed? It is easy to talk with little specificity about protecting minority interests for their own sake (or for the sake of “diversity,” a value of largely unexplored worth), but much harder to justify when we get to specifics. As a general matter, in a democracy, the will of the majority should rule. That must, I would suggest, be the starting position. The enforcement of any particular minority interest against the wishes of the majority must somehow be justified. I do not suggest a particular process, quantum, or mechanism for this justification; rather, I want to denude what otherwise seemed like a rhetorical question of its rhetorical quality. Why SHOULD a certain right be granted? A natural rights proponent can get around this issue by declaring certain rights to be “self-evident,” but it does not solve the problem; in the real world, I must be able to persuade you why it is desirable that certain interests be protected from majoritarian processes. Dissatisfied with both poles, how do YOU justify the enforcement of counter-majoritarian positions?
Again, to go beyond navel gazing, Americans of the last century have become so used to fighting it out in courts – that is, we have become acculturated to (rightly) expecting legal processes to protect “our” interests (read – interests which would otherwise be subject to majoritarian processes) - that we are skipping the step of attempting to persuade one another. Now, I do not hold out hope to persuade a majority of my fellow citizens of this or that interest which is near and dear to me, personally, but when I abandon persuasion as the basic process, I weaken the democracy itself, and if our system is imperiled (I am not persuaded that it is, but assuming so) I suggest that this is a big part of the reason. Lots of talk about rights in every direction, little principled discussion about what interests are to be valued and why.
> I just can´t see any Positivist position that can consistently argue for or against certain rights.
Then, whence rights? I don’t disagree, and I spend a lot of my time pushing the rock up the hill for individuals whose grip on the franchise is more tenuous than my own; I may not a full-blown grumpy old cynic – yet – but I’m sure I’ll catch up, given time. The articulation of the source of our rights is important, not for the ivory tower, but to explain why we keep pushing that rock. My answers are dissatisfying and imperfect; I believe I must work harder to properly frame the question. I am hopeful that if I can do a little better seeding the issue, the crowd here will help with that endeavor.
@ Beerina:
> Yes, keep forcing government to get warrants. All the historical evils private people use with said information pales compared to what government does with illegally-obtained information.
We are fortunate in the U.S. that the warrant requirement is the presumed standard of what makes a search “reasonable,” generally speaking; of course the warrant requirement stands, but I think your argument past that is more difficult to support.
Firstly, I don’t think the evil uses of said information can reasonably be measured “historically,” as the sort of data gathering we’re talking about is of recent vintage. Post wartime, ECHELON is the first serious governmental endeavor in this area of which I’m aware, and the fact of its very existence remains a matter of some dispute, much less an accounting of what any governments have done with the information gathered thereunder. Likewise Carnivore and NarusInsight – this stuff is just too new, it is not at all clear what the government is doing with it.
And there are in fact structures in place to protect our rights against government invasion; indeed, this is the only thing that most of our “rights” really do, whether they do it well or not. But as against the Google / Facebook / cellphone provider trifecta of information gathering, there is scant protection. We must of course remain vigilant about government intrusion into privacy, but our system is set up to police against the greater excesses in this area, IMO; I am not nearly so sanguine about the private sector’s use of my information.
It is not a choice between one or the other, but we already have a Fourth Amendment; what holds the private sector at bay?
@Chaos:
> the trouble with "natural rights" is that whatever rights you naturally have or be due or whatever doesn´t mean squat, in practice, unless these rights are defended and/or enforced.
Agreed. It might be helpful to distinguish between rights as a concept and the facts on the ground, if only for the purpose of this discussion (here I cede the high road to all grumpy old cynics continuing to fight the good fight!) . This notion was recognized by those same Framers of the U.S., who generally chose their words with care (with some exception as might later arise) – consider their word choice in characterizing certain rights as “inalienable.” This doesn’t mean that everyone finds expression of those rights, and it doesn’t mean that everyone gets to exercise those rights; what it means, in a literal sense, is that the right cannot be transferred or bargained away. “Inalienable.” An interesting choice, IMO, as it seems to acknowledge that rights can be denied or suppressed without diminishing the existence of the rights themselves.
This was a useful turn of phrase for a people who were essentially advocating for support of their rights on a world stage – the Declaration of Independence, oft quoted but seldom read, carries the tone of a persuasive argument – one designed to rally sentiment to a cause. As much as a decade of B. Franklin tottering around Paris in a raccoon-skin hat, the Declaration of Independence made a case for rights of natural vintage which was persuasive to those who needed persuading, if those rights were to find expression (I speak here less of fence-sitting British loyalists and more of moneyed Frenchmen trying to decide if the team they were thinking of backing was a winning one).
This is perhaps navel-gazing to those in oppressed conditions who hunger for righteousness; my point is that the criticism of natural rights theory as impractical is itself a very positivist argument; to a natural rights theorist, the right exists whether or not it finds expression.
> The problem with Positivism is that, if rights arise solely from being granted, what´s ever going to stop people from granting themselves all sorts of rights you really wouldn´t want them to have - such as the right to own other people as property or the right to kill those they deem "subhuman", to name just two?
Here it is worth noting that, in the original American design at least, a “right” is generally defined as a sphere of interest on which government may not intrude. Most (not all) significant American rights are negative in character – “Congress shall make no law…” (this is less true of the post-Reconstruction Amendments, i.e., 13-15, but I would argue that these Amendments created a second republic of such different character than the first as to deserve separate narrative treatment and analysis). So, there is a historic structural limitation regarding the sorts of “grants” you suggest.
This does not detract from the force of the criticism, which is that positivism is amoral by definition; it’s only as good as we make it, forcing us to define “good” and creating the sort of goalpost problems I referenced in an earlier post. I wholly agree with this criticism.
> Or looking at it from the other side: why should a certain right be granted to people - for example why should we give gays the right to marry, if rights arise solely from being granted and the bigoted majority does not like that?
Good question. Why indeed? It is easy to talk with little specificity about protecting minority interests for their own sake (or for the sake of “diversity,” a value of largely unexplored worth), but much harder to justify when we get to specifics. As a general matter, in a democracy, the will of the majority should rule. That must, I would suggest, be the starting position. The enforcement of any particular minority interest against the wishes of the majority must somehow be justified. I do not suggest a particular process, quantum, or mechanism for this justification; rather, I want to denude what otherwise seemed like a rhetorical question of its rhetorical quality. Why SHOULD a certain right be granted? A natural rights proponent can get around this issue by declaring certain rights to be “self-evident,” but it does not solve the problem; in the real world, I must be able to persuade you why it is desirable that certain interests be protected from majoritarian processes. Dissatisfied with both poles, how do YOU justify the enforcement of counter-majoritarian positions?
Again, to go beyond navel gazing, Americans of the last century have become so used to fighting it out in courts – that is, we have become acculturated to (rightly) expecting legal processes to protect “our” interests (read – interests which would otherwise be subject to majoritarian processes) - that we are skipping the step of attempting to persuade one another. Now, I do not hold out hope to persuade a majority of my fellow citizens of this or that interest which is near and dear to me, personally, but when I abandon persuasion as the basic process, I weaken the democracy itself, and if our system is imperiled (I am not persuaded that it is, but assuming so) I suggest that this is a big part of the reason. Lots of talk about rights in every direction, little principled discussion about what interests are to be valued and why.
> I just can´t see any Positivist position that can consistently argue for or against certain rights.
Then, whence rights? I don’t disagree, and I spend a lot of my time pushing the rock up the hill for individuals whose grip on the franchise is more tenuous than my own; I may not a full-blown grumpy old cynic – yet – but I’m sure I’ll catch up, given time. The articulation of the source of our rights is important, not for the ivory tower, but to explain why we keep pushing that rock. My answers are dissatisfying and imperfect; I believe I must work harder to properly frame the question. I am hopeful that if I can do a little better seeding the issue, the crowd here will help with that endeavor.
@ Beerina:
> Yes, keep forcing government to get warrants. All the historical evils private people use with said information pales compared to what government does with illegally-obtained information.
We are fortunate in the U.S. that the warrant requirement is the presumed standard of what makes a search “reasonable,” generally speaking; of course the warrant requirement stands, but I think your argument past that is more difficult to support.
Firstly, I don’t think the evil uses of said information can reasonably be measured “historically,” as the sort of data gathering we’re talking about is of recent vintage. Post wartime, ECHELON is the first serious governmental endeavor in this area of which I’m aware, and the fact of its very existence remains a matter of some dispute, much less an accounting of what any governments have done with the information gathered thereunder. Likewise Carnivore and NarusInsight – this stuff is just too new, it is not at all clear what the government is doing with it.
And there are in fact structures in place to protect our rights against government invasion; indeed, this is the only thing that most of our “rights” really do, whether they do it well or not. But as against the Google / Facebook / cellphone provider trifecta of information gathering, there is scant protection. We must of course remain vigilant about government intrusion into privacy, but our system is set up to police against the greater excesses in this area, IMO; I am not nearly so sanguine about the private sector’s use of my information.
It is not a choice between one or the other, but we already have a Fourth Amendment; what holds the private sector at bay?
Brainster
Penultimate Amazing
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The better argument lies in combining the ninth and tenth amendments. Unfortunately no federal government-loving liberals like the tenth amendment and so they miss its subtle deliniation of powers.
Chaos
Penultimate Amazing
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My position on this is what I guess you can call the utilitarian approach - the rights you should have are those contribute to the best society achievable, considering said society consists of humans in all their imperfect glory.
Or perhaps it is better to put it the other way around: the rights you should NOT have are those that detract from that society, the ones that make life worse for others. What harm does gay marriage, for example, do? None. Hence, gays should have the right to marry, at least to the extent that straight people do.
Of course, we can have a long and agitated argument on what the "best" in "the best society" means, but that´s a completely different topic.
I´m sure you will. The good thing about being a cynic is that, if you aren´t proven right, you´re getting a usually pleasant surprise.
Not just to explain to others, but also to explain to yourself. When you´re standing on a public square on a cold December evening, trying to get passers-by interested in the human rights flyers you´re distributing, "why do I keep bothering?" is a question that tends to creep up on you. Hot wine punch helps keep it at arm´s length, though.
RandFan
Mormon Atheist
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No federal government-loving conservatives like it either.
- DOMA
- Drug war.
- Person hood amendments.
Those conservatives miss its subtle delineation of powers.
ETA: No tu quoque. I don't claim that it's okay to ignore the 10th Amendment. If it's wrong for one it's wrong for the other.
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Chaos
Penultimate Amazing
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The more I think about it, the more I come to the conclusion that there isn´t really any substantial difference between the naturalist and positivist approach to rights.
Sure, the naturalist approach claims a higher authority as a basis of rights, rather than just a collective "because we say so" - but curiously enough, the higher authority - be it God, Nature or whatever the (bleep) else - in question is never available to clearly confirm that it grants these rights; so, functionally, rather than "because we say so" the naturalist approach is "because we say X says so".
Sure, the naturalist approach claims a higher authority as a basis of rights, rather than just a collective "because we say so" - but curiously enough, the higher authority - be it God, Nature or whatever the (bleep) else - in question is never available to clearly confirm that it grants these rights; so, functionally, rather than "because we say so" the naturalist approach is "because we say X says so".
TimCallahan
Philosopher
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I'm probably one of these evil liberals you're vilifying. Allow me to point out that it's the conservatives, or rather the neo-cons, including the late Robert Bork, who assert that there's no right to privacy. The liberals you disparage are generally for such a right.
As to the ninth and tenth amendments, while the ninth states that rights not specifically delineated by the Constitutional amendments are still retained by the people, it doesn't really mention the right of people to be free of unreasonable search and seizure or to be secure in their persons, as does the fourth. The tenth amendment, stating that powers not specifically reserved for the federal government are held by the states and / or the people, is likewise too vague, in my opinion, to apply specifically to privacy.
TimCallahan
Philosopher
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I would really be too freaked out by the sight of people walking around, etc., to take a dump in such a contraption. Also, I could see a prankster staring at the walls after someone goes inside. The person within would have to worry about whether or not the reflective coat was working.