I think it's unfortunate that one can write for Wired, yet not even mention that the word 'privacy' does not appear in the constitution. Again, the media does a poor job of educating the public, and conveniently avoids inconvenient facts.
It's perfectly reasonable to want to have or add a right to privacy --but then the author should simply write that. No need to make this tenuous connection to FOSTA.
"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."
Combine that with the fact that the precedent up until very recently took that reading, and it's not at all incorrect to argue that Americans have a constitutional right to privacy. What is digital surveillance, but a search of one's papers? It's not a police search, but the constitution predates modern policing, lending credence to the most general reading possible.
They overturned a precedent from a majority opinion written in _2020_ by a sitting member of the current court, and solely because the membership of the court changed and reinterpreted the legality of it.
How else do you describe that behavior as anything but political?
As someone with a Political Science degree that includes specific study of judicial politics in the United States, let me say that this is, very much, not true, has never been true, and is just silly.
> The rulings being made now are a continuation of 140 years of judicial precedent
...that has seesawed back and forth with the political winds over time...
> that alloted states enormous latitude in instituting their own laws
Even if that was an accurate simple explanation of any 140 years of precedent some of those recent controversial decisions denied states this ability, which complicates the narrative.
But it is perfectly consistent since it did so in favor of conservative policy preferences, just like the decisions that expanded state power.
> and that only ended in 1937, when FDR interfered with the SCOTUS's independence by threatening to "pack the court".
Aside from the documentary evidence that the switch of on one justices position that ended that threat actually happened before the threat was issued, there weren't 140 years of precedent on the application of the 14th Amendment before 1937, as there was only about half that time between the 14A and 1937.
The Supreme Court, because of lifetime tenure, often doesn't quite reflect contemporary partisan divides in the way one might naively expect, but it is quite political, and often partisan.
It sure had me fooled.
But I think the real origin of this article is: the author is upset about FOSTA, a view I happen to share. But it's out of the news cycle. So he draws a tenuous connection to a current event, making it both relevant again, and stirring some telelogical history.
But the recent decisions are not really based on FOSTA, and as far as I can tell there was no legal precedent set by these acts that had anything to do with the recent decisions.
As if the constitution is some God-given artifact, that should dictate all legal matters in perpetuity, and anything not thought by some long dead guys in 18th century is not relevant to a modern society?
But you know what else isn't explicitly supported in the Constitution and only exists through "creative" interpretation, rather than a Constitutional Amendment? The Supreme Court's power of judicial review. They literally just made it up in Marbury v. Madison.
Do we have a right to free association? A right to body integrity? A right to death?
I would be very careful about conjuring up rights.
That should be considered by what the population wants every period (as in a democracy).
Not based on what some 300-year old guys wanted, and apocryphal court decisions, trying to decipher whether the 300-old guys idea about guns and milletias is compatible with modern-day RPGs and automatic riffles shouting up schoos, or whether privacy (which was then a default, due to the lack of dozens of later developed ways to disrupt it, and more importantly the inability to do so in a mass state surveillance scale) is a right.
This could be the turning point in society putting up with a congress that constantly abdicates its responsibility to legislate…responsibly.
And not being constitutionally protected doesn’t mean it should be illegal. It should definitely be regulated.
As for the Constitution and privacy, does nobody remember the Tenth Ammendment? The enumeration of rights was not exhaustive and never meant to be. To give a satirically extreme example there is no right against being flayed alive but that doesn't mean a law perscribing flaying everyone alive, not as a punishment would be constitutional! The Third Ammendment in spirit was also basically about privacy. Taxation is legal so it wasn't merely about lost rents, and also applied to houses. In times of war requiring you to let soldiers borrow your barn to keep out of the rain would be technically valid by the plain text.
The whole "not listed" argument also forgets the natural rights epistemological doctrine or conceit that all rights are pre-existing for there to be a violation of them, and something greater than the law. This helps to define the law itself as potentially wrong and serve as a call to action.
emails are a form of document.
https://www.lawinsider.com/dictionary/personal-papers
three definitions
1. Personal Papers means identification documents issued by your country, state or province including but not limited to your driver’s license and passport.
2. Personal Papers means a natural accumulation of documents created or accumulated by an individual or family belonging to him or her and subject to his or her disposition.
3. Personal Papers means nonofficial documents maintained by an individual at a place of work or on an enterprise network or equipment.
Although I certainly don't doubt this court would choose definition 1 if it so suited them, or the definition you are arguing here, I still would not believe the argument was one made in good faith.
An email is not under your control, it sits on a server of a private organization. While statutes of the government may currently protect it, are these statutes supported by SCOTUS interpretation of the constitution?
Certainly anything you say or do in public can be recorded by as many microphones and cameras as the government may choose.
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