The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Eugene has thrown out the challenge to readers (and co-bloggers): What does this recently-adopted provision of the New Hampshire Constitution mean?
"An individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent"
And there's the meta-question: what theory of constitutional interpretation does one use when trying to figure out what it means?
As to the "meaning" of the sentence, that, as always, depends on the context in which it is being used. If I had come across that precise sentence—"An individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent"—in, say, a colleague's email in a discussion thread on constitutional interpretation, or in a student's essay on the 14th Amendment, my response surely would have been something like:
Me: "I don't understand what you mean when you say that. In particular, I don't know what you mean by 'natural, essential, and inherent,' and I don't know what you mean by 'governmental intrusion.' Those can mean very different things to different people. Until I know what you—the speaker—mean by them, I don't know what the sentence means."
But it is not being used in a colleague's email or a student's essay; it's now a part of the New Hampshire constitution. The "speaker" is now the collective: the People of New Hampshire, who have declared that "an individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent." So we might ask: What do they—or what does it, the collective comprising the people of New Hampshire—mean by that?
The constitutional context also matters in that constitutions are documents that have a particular purpose: they constitute governmental institutions, and they authorize those institutions to do certain things and prohibit them from doing other things. They're not just communicative code (colleague's email, student essay), they're executable code. The "meaning" of a constitutional provision lies in what it does, or does not, authorize or prohibit. Constitutional provisions have no meaning in the abstract. Sentences that may have perfectly plausible and reasonable meanings in other contexts—"Bach's B Minor Mass is a sublime achievement," or "The average annual rainfall in Seattle is greater than in Phoenix"—are entirely meaning-less should they (for some reason) appear in a constitution, because they have no plausible readings authorizing or prohibiting anything.
The People of New Hampshire apparently believe, in the abstract, that "an individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent." Does that mean that the government may not seek to obtain your financial records in a fraud case via a subpoena, on the grounds that it would violate the "natural, essential, and inherent" right to "live free from governmental intrusion in private or personal information"? Or does it mean that the government may obtain that information, but only if it first obtains a judicial warrant?
There are a million such questions that could arise in connection with a right to live free from governmental intrusion in private or personal information. Are public records—birth and death records, or real estate records—covered by this right? Does publication of personal information constitute an "intrusion"? Can law enforcement officials request cell phone locational data without a warrant? Etc.
These are the kinds of questions that give this (or any) constitutional provision its "meaning," and it is entirely futile, in my opinion, to try to answer them by asking how the speaker—the People of New Hampshire—would answer them.
A guy walks into a bar in, say, Center Ossipee, New Hampshire. He turns to the folks gathered there, and asks for their opinions: "Given that an individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent, should the government be allowed to subpoena my financial records in a fraud case against me?" My guess is that there would be disagreement among the patrons about that. Who, therefore, is in a position to say what "the People of New Hampshire" believe about this question?
It is, to my mind, the fatal flaw in any theory of constitutional interpretation that relies on a "contract" model for determining meaning, wherein one must look inside the minds of the parties to the contract—the ratifiers of the constitutional provision, the people of New Hampshire in this case—to determine the meaning of constitutional provisions. Originalism, of course, is such a theory—one which adds temporal dislocation to the already-impossible task of trying to determine what is inside the heads of the People of New Hampshire; as if determining how the People of New Hampshire in 2018 would actually apply this abstract principle to events in the world of 2018 were not difficult enough, the notion of trying to determine how the People of New Hampshire in 2018 would apply this abstract principle to some set of currently-unimaginable events taking place in the world of 2118 strikes me as entirely preposterous.*
*See my criticism of Justice Thomas' strict originalism in his dissenting opinion in Brown v. Entertainment Merchant's Ass'n. The question in the case was whether a California statute that prohibited the sale or rental of "violent video games" to minors violated the First Amendment. Justice Thomas concluded that it did not, because "the founding generation believed parents had absolute authority over their minor children [and] would not have considered it an abridgment of 'the freedom of speech' to restrict speech [to minors] that bypasses minors' parents."
So if the constitutional meaning of this provision cannot be determined with reference to how the People of New Hampshire would apply it in any concrete case—because that it not a knowable standard to use—what does it mean? Like many constitutional provisions, its meaning lies in its burden-intensifying properties; henceforth, in New Hampshire, a claimant who has been affected by a "governmental intrusion in private or personal information" can demand a higher level of justification from the government than in the ordinary case. This is, in essence, all that rights-declaration provisions, whether it's the freedom of speech, the right to be free from unreasonable searches and seizures, or the right to due process of law, ever mean. The government, henceforth, will need not just a good reason, but a damned good reason, should it "intrude" on "private or personal information."
What constitutes an "intrusion on private or personal information" requiring such a heightened justification? To be determined. Not with reference to the world of 2018, but the world in which the supposed intrusion has occurred. If this makes me a "Living Constitutionalist," then so be it.