Privacy

N.H. Constitution Now Protects "Right to Live Free from Governmental Intrusion in Private or Personal Information"

But what does that mean? Readers, tell me what you think, and how it fits with your general theory of constitutional interpretation (e.g., textualism, originalism, etc.).

|The Volokh Conspiracy |

The New Hampshire Constitution has just been amended—by an 80%-20% popular vote—to include this provision:

An individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.

My question: What do you think this means?

  1. That all governmental searches of private or personal information (and all subpoenas of such information) are now unconstitutional, so that the government can't, for instance, get your e-mail records even with probable cause and a warrant?
  2. That such searches and subpoena require a probable cause and a warrant (language that the provision does not contain, though section 19 of the New Hampshire bill of rights, the existing search and seizure provision, does)?
  3. That such intrusions may be allowed, but only if they are narrowly tailored to a compelling government interest, to borrow a test that has sometimes been used for other facially categorical rights?
  4. That traditionally accepted intrusions are grandfathered in as legitimate, but that ones introduced after the amendment is enacted are not?
  5. That the public is essentially delegating to courts the responsibility and authority to turn this into some meaningful test that accommodates both privacy rights and the need to gather information in order to enforce the laws?
  6. Something else?

Also, (7) would this also apply to civil cases, where a litigant seeks to use the state courts' subpoena powers to require the opposing litigant to turn over some "private or personal information" that is nonetheless potentially relevant to a lawsuit?

Please post your thinking below, and please also indicate how you would describe your understanding of constitutional interpretation. For instance,

  1. Are you a textualist, at least when there is no precedent interpreting the constitutional provision? (Because it's a new provision, we can set aside here the question of how one reconciles one's general theory of interpretation with longstanding precedent interpreting the relevant provision.)
  2. Do you focus on the original meaning of text?
  3. On the original intention of the drafters?
  4. Do you favor a "living Constitution" approach?
  5. Or would you describe yourself as more of a pragmatist as to these matters?

Feel free to offer a mix of these; but do say something about where you generally stand, and reflect on how your proposed interpretation fits your interpretive theory.

I'm inclined to think, by the way, that questions like this can offer a helpful way of looking at debates about original meaning and original intent (if you care about such things), since we don't have to speculate about what the Framers back in 1787 must (or might) have thought about this. Instead, we have a good sense of what these words likely mean today—including of whether they might not have much of a fixed meaning.

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105 responses to “N.H. Constitution Now Protects "Right to Live Free from Governmental Intrusion in Private or Personal Information"

  1. As a cynic, I say it means nothing, because any other meaning would block government from doing the things that government does.

    As a somewhat-less cynic, I say it still means nothing, because it’s too vague to be taken literally.

    I mean …. I mean, I’m just sitting here on the Group W bench … and it seems like it could have come from the morning after a Haight-Ashbury get-together where no one remembers anything that was discussed, but they needed to say something to tell each other it was powerful.

  2. I’ll go for meaning 1.

    I am primarily a textualist. However, I do think that the prevalent definitions of words at the time a given provision was drafted matter. I consider this more a question for linguists than for historians.

    1. I appreciate that, and that certainly is the purest textualist reading (and I agree that good textualism should generally consider original meaning of the words). But are you at all moved by the shocking implications of this? The government can’t — even with a warrant and probable cause — search your e-mail or your papers. Presumably it can’t tap your home phone calls, again, even with a warrant and probable cause, since such a tap would likely disclose “private or personal information.”

      Can it even authorize discovery of such documents in civil cases? Can it even question your friends and acquaintances — even without ordering them to answer — about conversations you had with them? Wouldn’t that sharply and likely unexpectedly (to most voters) restrain ordinary police authority to investigate serious crimes? Or are the answers to this, “no, it can’t do any of those things, and, yes, it would sharply restrict police authority, but that’s what the text demands, so that’s that”? (One possible elaboration on that, of course, is, “… and if the voters want to reauthorize some of these longstanding but now-forbidden practices, they can just amend the provision again.”)

      1. “Presumably it can’t tap your home phone calls, again, even with a warrant and probable cause, since such a tap would likely disclose ‘private or personal information.'”

        Unless having the government learn something via otherwise lawful means makes it no longer “private” or “personal” information.
        So, for example, the state would be allowed to keep records of your driver’s license number, because that’s government information in the first place. It would be allowed to keep your address IF you disclosed that information, because then it’s not “private”. People who want to vote would need to establish citizenship and residency, and the government could retain that information because it was willingly surrendered. Want to own real property? Then you have to disclose your ownership to have that information recorded, and the information is not private.

        So… the court that issued a warrant to allow surveillance on (xxx)-xxxx-xxxx wouldn’t necessarily know (or be able to ask) who that line belonged to, but if probably cause exists, might still be allowed to tap and monitor it.

      2. “But are you at all moved by the shocking implications of this?”

        I agree, it’s shocking, but no I’m not moved by the implications. If it’s a problem, it can be fixed the same way the problem was created, amending the state constitution. The courts ought not take it upon themselves to fix the problem by using strained interpretations with zero basis in the text.

      3. The real kicker here is going to be the issue of personal financial information and taxation. Most taxation relies on the knowledge of some personal financial information. Income, or sales, or property owned. Without that knowledge, the state can’t tax appropriately.

        And because of that, the strict interpretation is going to be out.

        1. I’ll agree with you, that as a practical matter, the courts with go with 5 or 6 (nothing).

          But I took EV’s article as asking us how we would interpret it personally.

        2. “Without that knowledge, the state can’t tax appropriately.”

          With the county property recorder’s office closed down, this probably won’t be a problem, since nobody can own property any more.

          With no way to record security interests in personalty, either, commerce is pretty much going to wind down.

  3. I’d go with 5, or something close to it. This language is very vague, so I think it is best understood to move the dial a bit toward the privacy side in what have been borderline cases.

  4. I guess it depends what you mean by “means”. I imagine that most of the people who voted for it were expecting/hoping for something between #1 and #3. In a pragmatic sense it will probably be closer to #5, until the courts and/or state legislature hash out the finer details of what it means in practice?the same as for other constitutional rights, which are generally stated in broad terms initially and then have to be interpreted in specific cases. Ultimately I predict it will end up stabilizing somewhere around #4, possibly drifting more towards #3 over time as the right becomes more well-established.

    That said, I am extremely not a constitutional scholar. I tend to approach these matters with the parable of the screwdriver in mind: the things we create are shaped by intentions but do not embody them, and may end up being used in different ways than originally imagined. If I picture the author of some piece of constitutional text objecting “That’s not what I meant!”, my first instinct is to reply “Tough shit! We didn’t ratify what you meant, we ratified what you wrote. If the two are different you should have written more clearly.” Does that make me a textualist or a pragmatist?

    1. We didn’t ratify what you meant, we ratified what you wrote. If the two are different you should have written more clearly.” Does that make me a textualist or a pragmatist?

      I’d say it makes you a shyster, given interpretations can be deliberately skewed. I’m remembering one case where a court interpreted a law written by James Maddison in a way they know he did not intend, and noted it as such in the decision. I think if someone is knowingly interpreting something in a way that they know is not intended, they’re on the wrong path to begin with.

      If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him. – Cardinal Richelieu

  5. I would say None of the Above.

    It is hortatory, and missing any legal command. Sort of like what the Second Amendment would be if it read:
    ” A well-regulated militia is necessary to the security of a free state” or if the Fourth said “The people have the right to be secure in their persons, houses, papers and effects.”

    1. What would you say about the New Hampshire bill of rights’ petition clause, which reads,

      The People have a right, in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their Representatives, and to request of the legislative body, by way of petition or remonstrance, redress of the wrongs done them, and of the grievances they suffer.

      Is this also hortatory? Or does its recognition that “The People have a right … to assemble” implicitly forbid at least some restrictions on assembly? (I set aside whether the legislature has to listen to the instructions and grant redress; I’m just speaking here of whether assembly itself could be punished.) And if “the People have a right to assemble” imposes some legal constraint on the government — even in the absence of a phrase such as “shall not be infringed” — why does’t “An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent”?

      1. “why does’t “An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent”?”

        Insufficient definition.
        The first textual sample includes the right, along with some examples of how it can be used, which defines what “a right to assemble” really means. The second textual sample is bereft of such examples, leaving the meaning(s) of the right undefined.

        It’s not the way some people prefer, but because rights always have limits (usually, in how those rights interact with the rights of other people), you need to define what the “core” of the right is, and where the boundaries are, and then you get into penumbras and whining about judicial activism..

      2. Prof V — One difference is that your second example is phrased as a positive, rather than a negative right. More importantly, though,it is very specific.

        Contrast the assembly/petition language with something like, “The people have the right to life, liberty and the pursuit of happiness.” Those are wonderful sentiments and provide a foundation upon which our laws and constitutional system are based, but standing along they are singularly unhelpful in providing concrete guidance.

        FWIW, I am of the original meaning school of interpretation, but I am also a legal realist in the sense that I believe that words on a piece of paper, no matter how clear, are worthless if those tasked with enforcing the law refuse to accept that plain meaning.

  6. I’ll go with #2, although I’ll point out many federal courts have held that access to email does not require a warrant (3rd part doctrine or some such). I’m not sure what the NH courts have held. There’s also a significant amount of other information intended to be protected by this.

    How did I come to this conclusion? By searching for the pro/con arguments regarding this question and hence “On the original intention of the drafters”.

  7. What were the discussions/deliberation/debates in the NH Congress that led to this? That should help put the intent into context.

    It is a too broad statement that is open to legislating from the bench–which would have the opposite effect as what I assume is the intent of the change. This invites more government intrusion from the judiciary than one may have intended.

    1. Well, since you asked, here’s what the guy who pushed it through the Legislature to get it on the ballot had to say: http://www.unionleader.com/new…..6cd76.html

      FWIW, it passed the Legislature by one vote more than it needed, before being passed 80-20 by the voting public. Seems the Legislature might be a little out of touch with the public’s concerns….

  8. The main text of art. 2, to which the new text is appended says —

    All men have certain natural, essential, and inherent rights among which are…acquiring, possessing, and protecting, property;…

    Since I doubt this is used to justify theft, I doubt that your no. 1 constraint would be valid, but no. 2 would fly.

    Also, art. 3 reads —

    When men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void.

    So to the extent an intrusion into personal info helps ensure the protection of others (enforcing a valid law, but not bulk collection for future use?), it should be constitutional, but not otherwise.

    From the view that something becomes law via a vote (legislative or otherwise) and that the meaning of the text when passed is what was voted on.

  9. It appears to me to limit the government’s authority to probe the information stored by individuals… say, in their personal computers and smartphones, but not to limit the government’s authority to maintain information about individuals. I’m not quite clear how this might be applied to a third-party collection of data (say, the records maintained by a credit-rating bureau, an ISP, or a telecommunications provider.

    The drafters didn’t do a very good job, in my opinion, in defining what present-day activities the amendment was intended to limit, much less the future ones. This strikes me as likely to result in the amendment being read very narrowly by courts (largely because an expansive reading would seem to invalidate a substantial number of important government functions, such as maintaining property tax records, or security interests in property, or even voter registration.)

  10. I don’t think it means anything, because what it says is nonsense. By “nonsense” I don’t mean I disagree with it, but that it doesn’t actually prohibit anything I can understand.

    What does it mean to intrude “in information?” I know what it means to intrude “on” a meeting, or “on” a solitary individual, or “on” a conversation.

    I don’t know what it means to intrude “on information,” much less “in information.”

    1. It has to be about data as stored by computers and maybe file cabinets. It’s pretty normal to treat data as a place or boundary in software ond hardware for folks who deal with it.

      1. “Data” and “information” are different things, and not interchangeable terms.

  11. I tried to find out what they were going after, but got nothing better from the sponsors than nebulous statements about online data.

    So I’d like to think it means this, which might be a better amendment: The Third Party Doctrine is invalid, and as people move their private affairs online, they take their expectation of privacy with them. Any demand for information requires a warrant.

    Clean it up for lawsuit discovery, but not too much. I’d prefer a little too strict than too loose, given how government and the courts combine to do things they shouldn’t, like declare phone metadata as not requiring a warrant when The Tyrant King George III would have gladly used it for the exact same reason — to “flesh out” the Founding Fathers’ networks.

    There are precious few controls stopping a “special agent” from fleshing out the networks of political opponents to his or her boss. It isn’t about the average yokel, much like the 4th and 5th.

    1. “The Tyrant King George III would have gladly used it for the exact same reason — to ‘flesh out’ the Founding Fathers’ networks.”

      I think you’re conflating too things here.
      The Tyrant King George did a lot of things that infringed the freedom of the colonists under his flag. That was his bad, and he paid the price for his tyrancy.
      Once they were in open revolt, though, it’s certainly a valid use of power to locate and detain the troublemakers.

      1. It is not valid for a dictator to exercise power like that. Saddam Hussein tried to use the defense that, as head of state, he had the honor of executing his political enemies.

        So, no, I don’t agree. And there would have been no open revolt because all networks would be known before the first froggy jumped.

        1. “It is not valid for a dictator to exercise power like that.”

          Sure it is. Tyrant (or just King) George was acting to protect his citizens’ interests. You know, the ones who WEREN’T in open revolt. Just like a perfectly free government may pursue people who advocate for lawless revolt against their government. Pursuing criminals is a valid exercise of power.
          Your attempt to conflate pursuing criminals with executing them is noted, but rejected.

          “And there would have been no open revolt because all networks would be known before the first froggy jumped.”

          So, my claim is that by rising in revolt, the patriots were rightfully considered as criminals by the Crown, and the Crown was validly using its power to fight the revolt. And your argument… I literally can’t follow. It wouldn’t have existed because after they rose in revolt they never could have risen in revolt?

  12. #1 seems to be what it literally means. However, I’d need to look at the amended language in the context of the existing NH constitutional language and law. Which means a reasonable court approach that tries to honor the intent of the resolution is probably closer to #2, and that should apply for 3rd-party held ‘papers’ as well.

    I’m a textualist by preference (because anyone should be able to reasonably understand what the law means for them solely by reading it) with a dash of original meaning, but don’t think intention matters one whit (if it isn’t what you meant, that’s on you), and don’t think the meaning of law is subject to change without amendment. (No, it’s not living. If you want to change the law, use the legislature or amend the constitution).

    Of course, the actual result will probably be farther down the list, because I’m also a cynic about government.

    1. “(No, it’s not living. If you want to change the law, use the legislature or amend the constitution).”

      In strict application, this approach keeps any law from applying to anything (objects, circumstances, situations) that didn’t exist at passage. So, radio broadcasts wouldn’t be covered by the first amendment, and semi-automatic weapons wouldn’t be covered by the second, and time-share resorts wouldn’t be covered by the third.

      1. I disagree on your ‘strict interpretation’. Radio still conveys ‘speech’, which is protected. Semi-automatic weapons are still ‘arms’. The original meaning of these words is sufficient to include technologies not yet invented when they were written – they are broad categories of things, not specific fully-enumerated things. And including these things in them does not change the meaning of the law, which protects categories and only specific instances because they belong to those categories.

        Your argument is akin to saying Haiku don’t qualify as poems, because Shakespeare (or other appropriate personage) didn’t know what a Haiku was. That’s patently ridiculous.

        I only claim a dash of originalist, because i don’t mean only things the original writers would understand, but rather anything the definition of the original concepts would logically include or entail. That ‘papers’ are mostly digital today does not stop them from being recognizably ‘papers’ as a category under the bill of rights.

        1. “Radio still conveys ‘speech’, which is protected.”

          Nonsense, speech means speech. If they had meant radio they would have said so. The same goes for and media empire that doesn’t involve a printing press. Not a lithograph, or pressure plates but an actual honest to god printing press with movable type. And certainly not anything put on the internet, because that is neither speech nor ‘press’ it has no Constitution protections.

          Frankly I think this phrase is meaningless drivel. It neither restricts government action, nor provides a cause of action to defend a right. It is purely aspirational. I tend to be a Living Constitutionalist with a hint of Originalism.

          1. ===It is purely aspirational. I tend to be a Living Constitutionalist with a hint of Originalism.===

            I’m fine with living constitutionalism when it expands personal rights, but not when it expands the power of government into controlling vast new arenas.

            The former is in line with the motivations behind the Costitution; the latter is diametrically opposed to it.

          2. What?

            Speech means any expression. Even the founders would have understood a letter to constitute speech.

            The press means organizations engaged in the news. Literal printing press not required. The first amendment *at the time of its writing* was understood to protect the press not only in the literal printing presses, but also in the activities of reporters and their handwritten notes – it protects the institution(s), not the machinery. I mean, listen to what you’re saying – a machine cannot have freedom or rights. Only people can have rights. So the press must be the people engaged in some business, and not even the founders imagined that to be restricted to the guy operating the printing press.

            These things naturally expand as the nature of these endeavours changes with new technologies. No new definition needed. Our understanding of the definition hasn’t even really changed. It’s just the range of activities which fall into these categories increases, but the categories still have the same definitions.

            Definitions are not lists of examples. That’s nonsense, violates the definition of ‘definition’, and adheres to no legitimate use of the word. If you define something with a list of examples, intelligent people will in fact tell you that’s not a definition.

        2. “Radio still conveys ‘speech'”

          Nope. Radio conveys electromagnetic energy. Speech is compression waves, and the press is a thing that makes marks on paper. Adding radio reporting to “freedom of the press” is a redefinition of “press”. I think you missed the point here.

          ” Semi-automatic weapons are still ‘arms'”
          Yep. You missed the point. You’re redefining “arms” to include things that the guy who wrote it down for ratification didn’t know about.

          “That ‘papers’ are mostly digital today does not stop them from being recognizably ‘papers’ as a category under the bill of rights.”

          Fine. But also a totally different approach than the one that was advocated… that ANY change requires legislation or amendment, not simply recognizing that the definition of a word also encompasses something that it did not previously.

          1. You’ve taken ‘texualist’ to parody levels here (and possibly confused it with your parody ‘originalist’, too).

            All of your “examples” are wrong, both in the literal and meaning senses. You proposed claims don’t even make sense within themselves. Why would the Constitution guarantee the freedom to use specific device to make marks on paper, when allowing the government to regulate what marks you made? Since writing isn’t “speech” according to your imaginary textualist.

            Misrepresenting someone else’s position with mockable strawmen may be fun, but it does nothing to advance your argument.

            1. “Misrepresenting someone else’s position with mockable strawmen may be fun, but it does nothing to advance your argument.”

              Doesn’t seem to have stopped you from doing it. Oh, the irony.

              1. I didn’t do it here.
                If I was wrong in actually responding to what you wrote, you’ll need to explain how you didn’t actually write what you wrote.

                I’m looking forward to that.

                1. “I didn’t do it here.”

                  Then someone else is posting under your name.

              2. I didn’t do it here.
                If I was wrong in actually responding to what you wrote, you’ll need to explain how you didn’t actually write what you wrote.

                I’m looking forward to that.

                1. “you’ll need to explain how you didn’t actually write what you wrote.”

                  No, I just need to point out that I didn’t actually write what YOU wrote.

          2. “Yep. You missed the point. You’re redefining “arms” to include things that the guy who wrote it down for ratification didn’t know about.”

            No, you are the one redefining arms. To the drafters of the 2nd amendment arms was a synonym for weapons and armor. Weapons of any type, form or nature.

            The only limitations to arms in the text of the second amendment is that it must be arms that you can keep and bear (carry and use).

            1. “No, you are the one redefining arms.”

              No, I am the person expressly declining to do so.

              Redefining terms that exist to include things that haven’t been invented yet is the crux of the debate at hand. Handwaving (“of course they meant this, too, it’s part of what the word MEANS”) is no help because the term did NOT mean “and these things that haven’t been invented yet” unless some variant of “and similar things that haven’t been invented yet” is in the text.

              If you choose to read the text as if it says “and similar thing that haven’t been invented yet” even though it doesn’t, you’re subject to being criticized for seeing things in the text that aren’t in the text.

              Recommended reading: Robert A Heinlein, “Jerry Was a Man”. Heinlein understood the issue, 6 decades ago.

              1. Sorry, James, but count me among the people who think you are arbitrarily redefining the original broad definition into a more narrow one just so you can then exclude new things that clearly fit within the original broad definition. Arms, for example, clearly did mean all weapons in common parlance, even those of cultures which were not then known.

              2. “Redefining terms that exist to include things that haven’t been invented yet is the crux of the debate at hand.”

                Except the term arms as it was used at the time isn’t anything that specific, it’s a category of things, namely in the context of 2A, weapons.

                The definition of weapon as it would have been understood at the founding is: something (such as a club, knife, or gun) used to injure, defeat, or destroy.

                Far from others reading “and similar things that haven’t been invented yet” into the text, you are reading “excluding things that fit this very broad category but haven’t been invented yet” into the text.

                1. “The definition of weapon as it would have been understood at the founding is: something (such as a club, knife, or gun) used to injure, defeat, or destroy.”

                  See how you’re inserting examples? Examples of things that all existed at the time of writing? Why doesn’t your list include automatic weapons, chemical weapons, nuclear weapons, or antimatter weapons? All of those fit the definition of “weapon”.

                  Before these things are invented, the category “weapons” does not include them. After they are invented, the category “weapons” does include them. Ergo, the category has changed.

                  If we decide, tomorrow, that the legal category “persons” includes cetaceans, did the Founders mean to include cetaceans all along, or has the category “persons” been chancged? You’re arguing no, there’s been no change.

                  1. “See how you’re inserting examples?”

                    The examples are in no way a limiting condition on the definition of weapon.

                    1. You’re either missing the point so badly as to not be really in the debate, or you’re evading the points offered via deliberate obtuseness.

                      Either way, I accept your concession.

          3. Arms according to Webster’s 1828 dictionary = Weapons of offense, or armor for defense and protection of the body.

            Notice no examples are needed. Notice also that this includes things not yet invented, including today. If tomorrow someone invented a portable raygun, it would be covered. That’s the actual understanding of the term by the founding generation. It’s not so specific as to exclude uninvented things.

            By your argument, when we read ‘men are endowed by their creator with unalienable rights’, that only includes people who were alive *when that was written*, and doesn’t cover any future people. That’s not even a strawman – that’s literally what you are saying. And arms would only cover those weapons literally in existence when it was signed – the gun made the next day would be excluded. I mean, those people and things don’t exist yet, so the founders couldn’t possibly have understood their text to cover them, right? Your argument parodies itself.

            By ‘change’ I mean having the effect of changing the wording, such as by redefining what a concept means. Stuff which becomes ‘additional examples’ under an existing definition is not *changing the law*. The law is unaffected. Rational people are capable of fitting new things into existing categories when they’re not being ridiculous. Stop being ridiculous.

            1. “That’s not even a strawman – that’s literally what you are saying.”

              You’re right… there’s not even enough straw there to make a strawman.

              You’re supplying both sides of an argument, and winning the argument! Good for you?

              1. He’s still doing better than you are, when you try but still can’t even provide one side of an argument.

              2. I’m going to assume that’s a concession.

          4. It’s worth adding that press means the people engaged in reporting the news, not the physical machines involved, and did even in 1786. Machines don’t have rights (ie, freedom). People have rights. Your interpretation flies in the face of the Founders’ own expressed beliefs about rights and freedom, which makes it decidedly not original.

            1. “It’s worth adding that press means the people engaged in reporting the news”

              Duh. With whom are you arguing THAT point?

              1. You? You’re the one who claimed that radio wasn’t covered under the press as originally understood. But it clearly is, because it was understood as not physical printing presses, but people communicating information of public utility (aka news).

                Did you forget your own argument?

  13. Original meaning textualist, as can be discerned from then existing legal precedent.

    So, to the extent it is saying anything (see Ridgeway and Bernard11), it is enshrining the current state of the law in the constitution. (“*The* right…”)

    Since you mentioned it, do you have any cites about why the Fourth Amendment’s requirement of probable cause doesn’t apply to discovery in civil cases?

    1. “Original meaning textualist, as can be discerned from then existing legal precedent.”

      Sorry, but if you need anything more than the text and a period dictionary, that’s not textualist.

      1. You need, at minimum, two dictionaries, one for general usage and one for “terms of art”.

        1. The law ought to be clearly understandable to the average citizen. Terms of art have no place in the law.

          1. When you start arguing that law has no place in the law, you’re too far around the bend.

  14. Regarding my constitutional views I’m all of 1,2,3, 4 and 5 (primarily 2 which I think tacitly includes the others to varying degrees).

    The constitution’s meaning is what those who exercised ratification authority (state legislators) understood themselves to be agreeing to (2). Absent clear statements/evidence that they had an independent understanding of a proposition we can presume they were implicitly trusting the choices of the drafters so we look to their original intent (3). In cases where the ratifiers would have recognized there were factions advocating multiple interpretations we can presume their intent was to delegate interpretation to the normal judicial/political process as applied to that text (1).

    Moreover, the original understanding of the ratifiers at the time included an expectation that both political developments and a growing body of judicial precedent would give rise to an evolving practice over time (and that would include responding to pragmatic concerns) (4,5).

    Unsurprisingly then my answer to the main question is 5 it’s a delegation.

    1. Practically, then, this amounts to being fine with evolving interpretations like Griswald that expand the constitutional protections in some way that wasn’t expected but doesn’t infringe on any clear constitutional provisions. However, only a long term acceptances by the public and all three branches that something is settled law can ever let us interpret some kind of protection out of the constitution so the constitution doesn’t stop protecting gun rights because a bunch of law professors would like it to do so (but it could have been interpreted to only apply to assault rifles and allow banning handguns or vice versa). But given the practice of allowing presidents to appoint non-confirmed individuals as acting cabinet secretaries when the positions are empty going back to the late 1700s that may suffice to liquidate even a clear original expectation by ratifiers to the contrary.

      1. A better example of “evolving interpretation” would be the 8th amendment and capital punishment. It seems silly to argue that capital punishment is unconstitutional… there’s only one crime in the document, and the Constitutional punishment for it is… death. But the 8th amendment HAS been held to prohibit capital punishment, and to limit the forms it can take.

        1. “there’s only one crime in the document, and the Constitutional punishment for it is… death.”

          Nope. The constitution itself does not specify any particular punishment for treason.

          U.S. Constitution – Article 3 Section 3

          Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

          The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

          So many people believe that the constitution specifies the death penalty for treason (the only crime defined in the constitution itself.), but no, it does not.

  15. Number 3.
    But of course, it will no more restrict any government than the second amendment of the US constitution has prevented infringement, or the fourth amendment to the US constitution has prevented asset forfeiture.

    1. The anti-asset-forfeiture amendment would be 5, not 4.

    2. So how do you arrive at 3?

  16. I am not sure that I would place myself into any of the five categories listed. First and foremost, I look at the plain meaning of the words used. If there is only one meaning, that ends the analysis. However, if there are multiple competing interpretations I will review the context in which the law was drafted and its interplay with other laws. The question here would then be on the definition of “intrusion.” According to dictionary.com, that word means “an illegal act of entering, seizing, or taking possession of another’s property.” A search conducting pursuant to a warrant or subpoena is done under the color of legality. What I believe this law says is that any search requires a warrant or a subpoena.

  17. I think it’s a poorly written provision akin to Congress’s use of the term “crime of violence” (or “violent felony”). In the abstract, we have a sense of what is meant but it doesn’t really accord with the reality of law, or reality in general. The courts will nevertheless be bound to apply the constitutional provision on personal/private information and so the courts will necessarily strike balances.

    I’m in the textualist and originalist camps, but given the nature of the text and the problems it brings, I don’t know that any approach will prove more useful or clarifying than another. The text is practically begging for a purposivist approach simply because the text suggests no reasonable endpoint.

    Set aside information obtainable through warrants and subpoenas. How about the information the government routinely collects for all manner of reasons (granting licenses, conducting studies, information that is publically available). How about police using a facebook post to launch an investigation? Does this new provision impose limitations on information strictly necessary for an administrative function? Does it require periodic purges of information by the government?

    I’m tempted to think the text will be interpreted in a fairly maximal way. I think your third option is the way the courts should reasonably proceed (narrowly tailored to a compelling government interest). Yet remedy of a violation is another can of worms.

    1. “I think it’s a poorly written provision”

      I disagree, ill considered, yes. Poorly written, no.

      “The text is practically begging for a purposivist approach simply because the text suggests no reasonable endpoint.”

      Personally, I consider forcing the state executive and legislature to live with a strict interpretation of the provision until they get off their asses and amend it again to be a perfectly reasonable endpoint.

      1. “I disagree, ill considered, yes. Poorly written, no.”

        I think it’s essentially a quibble. I don’t know how well the voters considered the provision. But, like you, I can’t imagine the way it is written accords well with any particular intent. Maybe an extensive effect was intended but the text doesn’t well convey even that. It isn’t well written. It is in a passive voice and reads more like an aspiration than a statement of rights. After reading it I’m left asking, “…and so?”

        It would be a little like the Second Amendment reading, “A well regulated Militia is necessary to the security of a free State.” Depending on your interpretive bent, you might read that abbreviated 2nd Amendment to guarantee an individual right to firearms or, as many liberals read the complete 2nd Amendment, to apply solely to “well regulated Militias.”

        We might read the NH provision akin to how the 10th Amendment is interpreted: a truism with little independent effect. Of course a right to privacy is “natural, essential, and inherent.” We already knew that, the argument would go.

        But the law works in mysterious ways. It was only this year that a judge in NH granted a woman privacy of her identity in claiming a huge lottery prize even though state law requires she be publicly identified. Was that sort of thing in voters minds? Quite possibly. Is it a governmental intrusion to publicly name her? Not obvious. Given how the text is written, I don’t think there is an obvious “strict interpretation.”

  18. I think I’ll go with, “Lawyers in New Hampshire are going to make a lot of money in the next few years until this works its way through SCOTUS.”

    1. Why would it go to SCOTUS?

      1. I’d say lawyers claiming that warrants (including Federal warrants) are Constitutionally invalid in N.H. would take it there eventually.

        1. They’d watch it bounce for lack of jurisdiction in the federal district court, since that’s a question of of N.H. state constitutional law, which belongs to the NHSC, not USSC.

  19. As it’s missing the word “absolute” or something similar, it means that #1 is off the table.

  20. I’m going to say #6 – something else.

    It means that some attorneys will make a bunch of money arguing about what it means.

  21. I am originalist and textualist (a, b, and c combined), but I don’t find either method helpful here. The problem is the lack of a specific definition either of “personal and private information” or of “governmental intrusion in” same. Thus, rather like the 10th Amendment, it gives judges carte blanche to read into it as much or as little as they want.

    If I were the one to interpret this provision, I would read it as follows.

    (1) Certain information about each individual is inherently private and personal. In this category I would put his choices about religion, beliefs, medical treatments, substance use, marriage, family life, association and friendship, and sexual behavior; his health condition and medical history; and maybe even the amount and kinds of his financial assets. (This paragraph includes children except that parents have access to their minor children’s private information.)

    (2) Government may not dictate any of the choices in (1), nor discriminate because of them, nor demand information about them, nor share or publicize such information if it has any.

    Obviously there are going to be some exceptions to (2), based on conflicts between the inherent right declared here and other rights or important governmental purposes. But I would not grandfather in any exceptions just because they now exist: the default assumption should be that those who enacted this new provision intended to repeal whatever conflicts with it.

    1. I hit the character limit, but wanted to add this:

      It offends me when a law or rule of any kind is written so badly that it can be read more than one way. When a legislature writes one, I believe either the members are trying to deceive each other about the intended result; or more likely, they are attorneys and want to create work for themselves. But anybody can write a ballot proposition, so I’m guessing this is the product of laymen who should have asked a lawyer for help but didn’t.

      1. ” But anybody can write a ballot proposition, so I’m guessing this is the product of laymen who should have asked a lawyer for help but didn’t.”

        Anybody can write things that have multiple interpretations, and it doesn’t have to be because they have nefarious ulterior motives. It’s just a tendency that people have when they write… THEY know what they mean, so they miss the side meanings (and also the typoes and grammar errors) because they know what they meant, and mentally interpret the text the way they meant it to be.
        Also, sometimes, you get something that nobody thought of at the time. You make burglary the crime of breaking into someone’s home with intent to commit a crime within… so what if someone lives in their car… does that mean they can be burglarized by a car prowler? How about this one… if MJ is still illegal for general population but legal with prescription in my state, and I give a ride to someone who brings along their medical MJ plants, do I get arrested for possessing the plants in my car?

        A LOT of initiative and voter-proposed state Constitutional amendments are poorly written… sometimes ones that are directly contradictory get proposed or even passed.

        1. In fairness, it’s not just initiatives and voter-proposed amendments. A lot of laws passed by politicians have the same issues

          1. One of the few GOOD things you can say about committees is they’re better at proofreading than are individuals.
            In a functional legislature (not guaranteed, obviously, but usually available) the opposition gets a chance to point out dumb oversights and they get fixed.

      2. One of the beautiful things about ballot propositions that are worded like this, is that they can mean whatever a person wants them to.

        And if you’re trying to get a proposition passed, it helps if the voters can imagine it as a good thing, to whatever opinion they have of what a good thing is.

        1. ===it helps if the voters can imagine it as a good thing, to whatever opinion they have of what a good thing is.===

          Much like every candidate choice.

  22. It’s a feel-good statement. And it’s meaningless because “governmental intrusion” can’t be barred by the state’s compelling interest in justice (e.g., discovery of personal information bearing on a criminal or civil case).

    1. This is a real possibility. I think most people (myself included) have the impulse to say it must have some operative effect. But sometimes staking out a moral stance is the point.

      We can imagine a state adopting a constitutional provision that says, “An individual’s right to life at conception is natural, essential, and inherent.” It is a moral and pro-life statement, but it doesn’t really indicate what the law should be. Does it mean abortion is murder under the criminal law? Does it account for the rights of a pregnant woman? Does it simply restrict the government, but not pregnant women, from committing certain acts and if so which acts? As I said in my first comment in the thread, the phrasing almost begs for a purposivist approach to give it a definite form. Yet how do we decide if it it merely a feel-good statement or actually should have some operative effect? Can’t help but lean toward the notion it wouldn’t have become law if it weren’t to do something.

  23. I tend to run on a system of 2 and 3, with some of 5. A pure textualist, without context, can lead itself to absurdities and parody.

    With that being said, it does look like case number 5 is the post appropriate avenue (delegation to the courts), with a healthy dose of 4.

    I do think Professor Volohk missed the post interesting point possible. Which is the State’s TAXING authority, which often requires private or personal information. While New Hampshire does avoid most of the issue (by not having a sales or income tax for the most part), they do have a 5% tax on dividends and taxes. I can imagine a particularly clever person going on the New Hampshire tax form…

    -Pay 5% of your dividends in taxes. “Sorry, the amount of dividends I earn is private information, and the state isn’t entitled to that information. So, I cannot pay this amount.”

    1. “-Pay 5% of your dividends in taxes. ‘Sorry, the amount of dividends I earn is private information, and the state isn’t entitled to that information. So, I cannot pay this amount.'”

      I would imagine a judge saying something like “you’re welcome to overpay by a random amount to keep the exact amount owed private”. That wouldn’t solve the problem (how does the state know that the taxpayer is overpaying unless they know what the correct tax amount is?) but I don’t imagine there’s any judicial response that boils down to “good one. You got us.” Even in New Hampshire.

  24. What I want to know is this: “is this a final exam question for one of Eugene Volokh’s classes?

    1. I’m guessing no, it’s about a month too early.

  25. 6, something else: it is saying that particular privacy rights already understood to exist are natural rights rather than, say, a privilege of citizenship, so specifically that non-citizens have them and, at the very least, no class of citizens (currently serving or former felons, say) forfeits them in the absence of legislation specifically and explicitly removing them. And a bit of 5-but-stronger, an instruction to the court to weigh privacy rights more strongly than they previously did.

  26. I think it’s already been pointed out that this is an add-on to the NH Constitution’s existing Article 2, in place since 1784: “All men have certain natural, essential, and inherent rights among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness.”

    I’m very much not a lawyer, but I can do arithmetic: The state has somehow managed to muddle through 234 years with this “natural, essential, and inherent” language. I don’t know how many times Article 2 has been invoked in court decisions, but the new language shouldn’t be any more difficult to interpret than the previous language.

  27. The natural meaning of this provision in New Hampshire law is that Dartmouth must have closed its Department of English.

  28. Wouldn’t you just ask what the “public meaning” of those terms are at the time of their enactment? The very fact that this post says “what does this mean” and then asks readers to give their interpretation of meaning, fundamentally undermines the idea that there is a shared public meaning.

    A hundred years from now, if that provision is still present, some law-blawger will decide what it means, then say that everyone today shared that meaning. Which means, everyone today agrees on what this term means, thus the question in this post makes no sense.

    Stop trying to undermine originalism!!

    1. Nope. Prof. Volokh is explicitly asking for all views on this. Nothing is “fundamentally undermined” by fostering discussion on how different methodologies would interpret this text.

      Originalism is surely less appreciated (and less interesting) when looking at contemporary texts because we generally take for granted shared public meaning of words. It would be hard to communicate were that not the case! Surely if we want to know what is meant by “private or personal information” in the NH provision we would look at what those words mean to us now. We don’t look to 18th century understanding. And in 250 years there may be difficult questions about what the by-then-ancient text means in a world where notions of privacy may have drastically changed.

      1. “Prof. Volokh is explicitly asking for all views on this. Nothing is ‘fundamentally undermined’ by fostering discussion on how different methodologies would interpret this text.”

        If a claim is extant that there is one and only one proper approach for all cases and circumstances, then that claim is undermined by asking about all the different, competing approaches. Originalists make such a claim regarding originalism (although some do get oddly quiet when originalism produces results they would not prefer, and some abandon originalism in such cases.)

        1. That’s absurd (in the truest sense of the word). Prof. Volokh does not need to pretend there are no competing theories of interpretation just because he thinks they’re wrong, or at least inferior to Originalism. He is explicit that he thinks this exercise has pedagogical value and helps us to conceptualize the debate between Originalists/non-Originalists. And beyond that dichotomy, there are the debates about pragmatism/intentionalism/purposivisim/textualism.

          Non-originalists push the same tired and specious arguments about what Originalism must be. The idea that recognition of other theories somehow disproves it is probably the weakest version. I don’t know why non-Originalists are so enraptured by this wholly unconvincing attempt at a “gotcha.” The idea that words mean what they mean when written is so powerful that I suppose ridiculous arguments must be mustered against it to support adopting whatever meaning achieves one’s goals.

          I have been critical of the ‘odd quiet’ of Originalists when it comes to things like the freedom of speech. The apparent inconsistency appears to be a failure of people more than theory. We don’t need to play the I’ve-disproven-your-entire-theory game to ask about that.

          Lacking consistency is a more powerful rebuke of non-Originalists who profess to using a buffet of interpretive principles and also whatever suits their goals, which makes it all look like…just whatever suits their goals.

          1. “That’s absurd”

            You misspelled “true”.

            “Prof. Volokh does not need to pretend there are no competing theories of interpretation just because he thinks they’re wrong, or at least inferior to Originalism.”

            OK. So this is going to be a rant that has nothing to do with what I wrote? OK, then.

            1. Your retort is weak. And by weak, I mean pathetic and unconvincing.

              My statement was directly responsive to what you wrote. Which, again, was absurd. And the statements that followed it also rebutted your silly assertions. You’re unable or unwilling to grapple with arguments so I’ll leave you alone with your most winning of arguments: “Ok, then.”

  29. “But are you at all moved by the shocking implications of this?”

    As superstitious as I am right now, if it’s making you feel real physical pain at the current moment (and not just worry), I trust whatever you say. Superstitiously, it feels like pain is evolved in humans so we are moved with compassion to help each other. What other purpose would pain serve? /way off topic

  30. My answer: modified #1

    “That all governmental searches of private or personal information (and all subpoenas of such information) are now unconstitutional, so that the government can’t, for instance, get your e-mail records even with probable cause and a warrant?”

    Not just “are now unconstitutional”, but also WERE unconstitutional (refer to Boyd v. United States), save for a recent period of statolatric departure from the Constitution.

  31. I don’t know what it means. I don’t think the drafters know what it means. I don’t think the legislators who voted on it know what it means. And I don’t think the voters who voted on it know what it means. I don’t think any of this changes depending on your theory — or lack of theory — of how to interpret such things. By default, this will probably mean that #5 is how things will shake out.

  32. The fact that you’ve identified so many potential meanings, means that it doesn’t mean much.

    1. Welcome to the law 😛

      But seriously, the ability to identify different possible meanings does not mean they are all equal. It certainly doesn’t mean Prof. Volokh has no view on which are better/best. If a lawyer can’t fathom alternative meanings of a legal provision he wouldn’t be much of a lawyer.

  33. My pick would be option 3. I consider myself a pragmatist.

    The wording is vague, so I would rule out option one. If that was the intended meaning the provision would have been worded: “The government is prohibited from intruding into any person’s personal information.”

    I would rule out option 2 because that is the same state that existed before the amendment was approved. Why amend a constitution if it would not change the status quo? However, it is plausible that the intent of the amendment was to abolish the “third party exception” to the 4th amendment.

    Option 4 does not strike me as a fair reading of the text of the provision.

    Option 5 would be my choice if there was no option 3.

  34. To the debate above as to whether the Second Amendment’s “arms” includes only technologies of 1789, or any weapon invented or uninvented that people can “keep and bear”: Arms of 1789 included devices that shoot projectiles. They did not include devices that kill or injure through intense laser beams that damage the target’s eyes, or inject the target with bacteria or poison. Can the government infringe on the “right” to keep and bear “arms” such as these? As a pragmatist, I say yes, such “infringement” does not violate the Second Amendment. If you agree, then you admit that not every carryable weapon uninvented-as-of-1789 is grandfathered by the Second Amendment.

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