The Meaning of Constitutional Meaning

The People of New Hampshire have spoken! But what have they said?

|The Volokh Conspiracy |

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.

NEXT: Proposed U.N. Test Ban on Gene Drives Is Idiotic

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Good, now we know what it does not mean.

    1. And what it means:

      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.”

      1. Sorry I was not clear.

        Post thinking something is proof that the thought is wrong.

  2. That the government has no right to scoop up, control, and keep a NH resident’s information without a particular and singular reason? That the default is they have no right to gather up everything on the off-chance that some day that resident may commit a crime.

  3. If we can’t figure out the “original public meaning” of an enactment a week old, how do we do it with one- or two-century old enactments after dipping into old dictionaries and consulting the cherry-picked samples of partisan polemics that we happened to learn about in high school?

    1. Because the Founders did nor write gibberish like this amendment.

      Its just words strung together.

      1. The Second Amendment would like a word.

        1. 2A is pretty freaking clear.

          Feds can’t indirectly disarm state militias by disarming the people.

          It’s lawyers who deliberately and maliciously obfuscated this…

      2. Or the First Amendment, for that matter, whose text contemplates none of the exceptions that it was evidently held to allow, right from the beginning.

        1. Add in the Ninth for the big funz.

          1. It’s funny how the people who think “living constitutionalism” means interpreting the Constitution to mean whatever one wants it to mean are the same ones who think that originalism is great because the Constitution has always clearly meant what they think it means.

            1. There are no exceptions to 1A and 2A is crystal clear as well.

              I can’t help it if the courts have screwed things up.

              1. Great! Where can I get my ICMB?

                1. It’s the right to keep and bear arms. You can have your ICBM as soon as you demonstrate that you are capable of carrying it. 🙂

                  1. Gimme a big truck…

                    1. “Gimme a big truck…”

                      Then the truck is bearing it, not you. The truck doesn’t have any rights.

                    2. OK.

                      Suitcase nuke.

                      Go.

                    3. “Suitcase nuke.”

                      Sure, if your life goal is to be a suicide bomber. Try setting it up and getting out of the blast radius on foot.

                2. The feds can’t ban it, but the States can.

              2. Actually, the 1A & 2A are not as crystal clear as you might think. It goes back to middle school grammar…both use the word “the” to preface the rights (“THE freedom of speech, or of the press; or THE right of the people peaceably to assemble”; “the right of the people to keep and bear Arms”). “The” is a definite article…it refers to something specific. If the writers of the constitution said “Congress shall make no law abridging freedom of speech” it would be indefinite and imply that any speech is protected. The prevailing notion at the time was that there were certain natural rights that belonged to the people…so “the” in the 1A & 2A means that they were protecting the natural right against infringement and their view of natural rights was that it was not absolute.

              3. The Second Amendment is not “crystal clear”, Bob.

                Obviously, it doesn’t provide any guidance as to what sorts of “arms” it covers, how far the right to “keep and bear” them extends, and what it means to “infringe” that right.

                And beyond that, you have the prefatory clause. What does a “well regulated militia” mean? How is that statement supposed to interact with the right? The Second Amendment is not “crystal clear”.

                Now, like anything else, there are better and worse interpretations of it. And on that, I actually don’t totally disagree with conservatives. For instance, the view that the Second Amendment protects the right to own a common firearm in one’s home (the right at issue at Heller) seems to me to be a better interpretation than an interpretation that eviscerates the right altogether. I would argue that “keep and bear” implies some sort of carry regime (whether open or concealed) is constitutionally required as well.

                But there are huge questions that the text of the Second Amendment doesn’t answer. Among those are registration and licensing, extremely dangerous firearms, ammunition limits, the rights of criminals and the mentally ill and juveniles, discipline and training requirements, safety regulations, carrying in sensitive places, etc.

                And this is why we have judges, Bob. Because you have to take a general text and get to a set of workable rules. And the common law system does that.

                1. The Second Amendment is crystal clear. Its apparent opaqueness is simply the deliberate misinterpretation by anti-rights zealots.

                  Arms: Weapons that an individual is capable of carrying and using.

                  Infringe: To put restrictions on the right to possess and carry arms.

                  Well regulated militia: Adult citizens who have arms.

                  Keep and bear: To possess and to carry wherever one may go.

                  Registration and licensing: The same as required to exercise other fundamental rights.

                  Extremely dangerous weapons: A nonsense term. Weapons are supposed to be dangerous.

                  Ammunition limits: Nope.

                  The rights of criminals: Nonviolent offenders shouldn’t be deprived of their right to keep and bear arms.

                  The mentally ill: A term that can be expanded to include a substantial portion of the population.

                  Juveniles: Under 18 you can use firearms with parental supervision. Over 18: You’re an adult.

                  Discipline and training requirements: The same as required to exercise other fundamental rights.

                  Safety Regulations: You’re expected to be safe with everything you use, cars, power tools etc. It’s part of being an adult. Yes cars required a test and license to operate but driving isn’t a fundamental right

                  Carrying in sensitive places: Ok. No guns in nuclear reactors, military bases, prisons and courtrooms.

                  1. The Constitution says all that?

                    Wow.

              4. So I can kidnap people and sacrifice them to the Aztec sun god Hu?tzil?p?chtli, and there’s nothing the government can do to stop me because there’s no exceptions to the free exercise clause?

                1. You can unless the would-be sacrifice sits up and objects, because then his own freedom of religion would be co-equal with yours.

                2. State laws against murder are not affected by a provision affecting Congress only.

              5. There are no exceptions to 1A and 2A is crystal clear as well.

                It’s always fun having debates with people who will seize absurdity in order to avoid conceding they’re wrong.

                1. Wrong about what? That the Founders knew how to draft?

                  All “exceptions” to 1A are judge made and not text supported.

                  “keep and bear arms” is a simple term too. Well understood at the time.

                  Our entire body of constitutional law is absurd.

            2. Technically, everybody thinks “living constitutionalism” means interpreting the Constitution to mean whatever one wants it to mean. Some people just find this objectionable, while others like it, but know they have to pretend it means something else.

              By basis for thinking this is that, while living constitutionalists will sometimes admit the Constitution means something they don’t like when confronted with text they just can’t invent an excuse for contradicting, when do you EVER see them admitting the Constitution has evolved away from the text in a direction they don’t like?

              “I really don’t like it, but the America people have gotten so blood thirsty that waterboarding jaywalkers can’t really be considered cruel and unusual anymore…”

              1. when do you EVER see them admitting the Constitution has evolved away from the text in a direction they don’t like?

                If you just look at the triumphs your side crows about, isn’t that a good guide? So what about the newly individualized Second? Or expressive association? Or if you guys get your expansive free exercise definition adopted?

                Or think a bit more. Do you think the Founders thought religion included stuff like Scientology? Or our current very pinched understanding of the 4ths privacy, both online and in meatspace?

                But yeah, it’s hard to find examples of LC guys pointing to ways our rights were just better in the 1700s or 1860s. But it sure is easy to find an originalist pining for the lost American vision of the 1700s, tricornered hats, tea parties, and all.

                Which side would you prefer to be on?

              2. “By basis for thinking this is that, while living constitutionalists will sometimes admit the Constitution means something they don’t like when confronted with text they just can’t invent an excuse for contradicting, when do you EVER see them admitting the Constitution has evolved away from the text in a direction they don’t like?”

                Brett, you think this is a gotcha, but this is exactly what has happened to the Declare War clause.

                I think as a matter of textualism, Congress has to declare war (no “authorizations to use military force”- it must declare “war”) before any use of force other than immediate repulsion.

                But the Constitution evolved away from that.

                1. Oooh, good one!

            3. 2A: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

              All Arms- rifles, swords, knives, grenades, bombs, ships, tanks, machine guns, silencers, any kind of ammo, and any future Arms developed.

    2. I don’t think this example shows a problem with originalism; we can’t figure out the meaning of this because it’s a slogan rather than a substantive provision that could be said to have a meaning.

      To be sure, an interpretive method that says, “Constitutional provisions mean whatever the judge thinks they ought to mean” would indeed not have a problem with this particular provision, but neither would an interpretive method that says, “Flip a coin to decide how this provision affects a particular situation.” That’s hardly a defense of coin-flipping as jurisprudence.

      1. There are plenty of slogans in the federal Constitution, David. For instance isn’t the Ninth Amendment a slogan? “There are other rights. We won’t tell you what they are though! You have to figure them out for yourselves!”

        1. “There are other rights. We won’t tell you what they are though! You have to figure them out for yourselves!”

          That must be the most disingenuous description I have ever read.

          How about, “we are not going to pretend we codified every single right, and we aren’t going to let our failure to do so be used as an excuse to infringe your rights.”?

  4. It joins the club of expressly listed fundamental rights government may not step on without express constitutional authorization. I would guess at a minimum you need a warrant to get at said info, regardless of who is holding onto it for you.

    If it said instead, “abortion”, or “3D printing”, nobody would be wondering.

    1. Missouri passed a similar amendment identifying “farming.” We’re still wondering, actually.

      1. Florida has one that’s even more ambiguous…”All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right…to be rewarded for industry”. The right to be rewarded for industry has ZERO case law defining it and it is quite ambiguous.

  5. 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.

    I am not sure how you justify this assertion. Certainly, the courts could decide that everything in a “constitution” must have this effect and attempt to imbue legal effect to apparently inert language, as you’ve done here. But I don’t know why we couldn’t, say, amend the U.S. Constitution to include my grocery list from this morning, and have it just be meaningless, unexecuted “code,” with no legal effect. Nothing about the special context of a constitution, as a legal resource, requires us to give it that kind of power. Constitutional text that does not purport to authorize or prohibit activity by a government so-constituted should not automatically be read to do something of that sort.

    1. Do you really think you can get 2/3rds of congress and 2/3rds of the several states to approve your grocery list?

    2. If your list included pastrami, rye bread, and deli mustard, you’ve got my vote.

  6. Just pick the most simple and most restriction of government meaning and be done with it.

    1. All the best doctrines come explicitly out of the proposers’ ideals.

      Though I would relish the endless complex arguments about what simplicity is.

    2. Lefties like SarcastrO making simple into something complex.

      1. The goal is to bring in TOP MEN to sort it out.

        The Constitution is a restrictive supreme law for government and it should be impossible for government to do anything outside its enumerated powers. Of change the Constitution.

        1. TOP MEN

          …do you mean judges?

        2. TOP MEN who dont think the Constitution restricts THEM at all.

  7. If it can be reasonably construed to mean everything, then it means nothing.

  8. What does this recently-adopted provision of the New Hampshire Constitution mean?

    Every Department of English in New Hampshire has closed?

  9. My guess is that, in practical effect, it will come to mean very little at all.

  10. The amendment is meaningless.

    Except for requiring children to receive some level of schooling (which I suppose would intrude on ignorant parents who wanted their children to receive no or substandard education), everything else in voluntary.

    Want to be a doctor/teacher/garbageman? Then meet these standards.

    Want to get a drivers/fishing/dog license? Then meet these requirements.

    Want to live/drive in New Hampshire? Then pay taxes/tolls. (FYI, New Hampshire does not collect state sales tax or levy an income tax on wages.)

    Additionally, legal searches are not intrusions.

  11. ‘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.” ‘

    Yeah, that’s a friggin’ disaster. The Constitution shouldn’t require mind-reading ability to interpret it. The whole point is that it is a specific document with a specific text. If knowledge of particular cultural beliefs of the time is necessary to make rulings, we can argue till doomsday. Just read the text. I see nothing about absolute authority over children in the text. Common law supported such beliefs, but common law isn’t the Constitution.

    The second amendment is a great example of this. Just read the text – it’s short and sweet. One clause tells why they are doing it, and the second tells what they are doing. ‘Because we are concerned about standing armies, we explicitly grant right ‘X’. And in the text itself, it is clear that the first text was superfluous – it doesn’t actually make a legal statement. It’s the second clause that contains the essential semantic content. And that is why it was right to rule that individuals – and not just militias – have the right to own guns. That’s what the single sentence says – there is not need to know what anyone ‘thought.’ It’s a Constitution, people, not a memoir.

    Now please be careful with those damn things, will ya?

    1. “The Constitution shouldn’t require mind-reading ability to interpret it. ”

      1A says “Congress” which now means federal executive, federal courts and state governments.

      The courts cannot even “interpret” a single clear first word of the Bill of Rights properly.

      1. So you’re against incorporation?

        1. Yes. I have only said that a million times. Try to keep up.

          1A only binds Congress from passing laws.

          1. Well, the Fourteenth Amendment said that states were required to honor the privileges or immunities of all citizens. I think there’s a pretty strong argument that this incorporated the Bill of Rights. (Justice Thomas agrees with me, by the way.)

            Now, of course, they used Due Process and did a selective, but near toto, incorporation instead, but that’s basically a detail. The overall result wasn’t much different.

            1. Actually, it was, because everybody in the country is entitled to due process, while only citizens are entitled to the privileges and immunities of citizenship.

              So the attempt to repair the damage done by the Slaughterhouse Court to the 14th amendment “restored” a substantially different amendment than the one that was ratified.

              1. Presumably had they used the P or I clause, the equal protection clause would then kick in to require the same rights to be enforceable by non-citizens, because they could not be treated unequally to citizens with regard to fundamental rights.

                So you then get to the same place.

          2. On the other hand, 1A is the only amendment that specifically mentions Congress or any other federal government branch/entity.

            So 14 incorporates against the states all of the bill of rights except 1A. 🙂

        2. Incorporations are not people!

    2. Individuals as such, or collectively? I note that people is a plural noun.

      Not a mind reader, sorry.

    3. the bill of rights was passed as a package, and was originally several more amendments that were condensed into the ten amendments in the bill of rights. This includes the 2nd amendment which reserves the right to keep and bear arms to individual persons, while also affirming the authority of free states to form and arm militias. These two things are not mutually exclusive, and doesn’t give the state any power to restrict individually owned arms. This is reinforced by the 10th amendment.
      The tenth amendment:
      “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people.”

  12. My personal opinion is that constitution or law, all ambiguity should be read against the government.

    That is to say that:

    1. Statements of rights of individuals and/or restrictions on government power should be given the broadest plausible interpretation.

    2. Laws and constitutional grants of authority to the government should be given the narrowest plausible interpretation.

    1. Completely agree. But under that principle the 9th and 10th amendments together = strict constructionism.

      1. “But under that principle the 9th and 10th amendments together = strict constructionism.”

        That would be a bad thing why?

    2. You know that we are the government, right?

      There is no weird, separate entity that floats above us.

      1. That’s a nice sentiment, and may have been true back when all public officials were either elected or appointed by some elected official. Nowadays we have these ‘administrative agencies’ which are composed of officials who are not responsible to the voters even indirectly. We’re told that political unaccountability is an actual advantage, along with the “expertise” those bureaucrats supposedly possess.

        Still believe that “we” are the government?

      2. That’s a nice delusion that you have there. That was the way it was supposed to be, but it hasn’t turned out anywhere close to that in practice.

        1. Who do you think these government officials and employees are or where do you think they come from?

          They are us, simple as that.

          They’re your neighbors, maybe family members, schoolmates, churchmembers, Little League coaches, etc.

          You’ve watched too many James Bond and Jason Bourne movies and have no clue about reality.

          1. A subset of people being the government does not come remotely close to making we(all of us) the government.

      3. “We” are not the government. The fact we have some say in who constitutes the government or that some of us work for the government does not make the government us. If the government convicts me of a crime, am I about to throw myself into jail? If the government seizes my property, can any of us lay claim to it, including myself? To say that we are the government is absurd. The government is an entity separate from its agents and from those who choose such agents, just like a corporation. Owning a share of Apple does not make me Apple, even if I have the right to choose the directors. Tim Cook is not Apple even though the Board of Directors chose him to run the company. If Tim Cook borrows money in his own name and then defaults, the creditor has recourse against him personally. If Tim Cook signs off on debt in the name of Apple and then the debt goes into default, the creditor cannot go after Tim Cook or me as a shareholder. Governments, like corporations, are their own thing.

  13. 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. ?

    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?

    The fact that ambiguous terms can be used in a constitution does not suggest that when interpreting a constitutional provision, the goal should be other than to discern the most likely public understanding of that provision at the time it was adopted. Is this what is meant by looking inside the minds of the parties? Do we ignore the historical meaning of terms and substitute meanings that appeared 100 years later?

  14. I can’t tell you exactly what it means any more than the next guy. But there are many cases where it would seem obvious to me that it would apply, for example:

    1. DMV sells drivers license information to private market for extra cash.

    2. High school, welfare dept, etc. requires people under its auspices to answer survey on their sex life.

    3. Government disclosed tax returns, welfare records, arrest records, medical records, etc. to the public.

    In a substantial number of cases I would think disclosure of certain potentially embarrassing information would be covered. In a lesser set of cases merely collecting the information would be covered.

    This isn’t an answer to the question, and I articulate no theory. But courts acting in a common-law tradition don’t have to. Over a series of cases and a period of time, they elucidate the meaning, using their intuition to tell them whether each case is in or out. Given judges with different orientations bound by precedent (but able to overrule it in exceptional cases), eventually a standard gets worked out.

    What is an “reasonable” search or seizure? “Probable” cause? “Excessive” fines? “Due” process? None of these terms are crystal clear either. Or any more clear than this is.

  15. That said the text imposed limits. The subject of the text has to be information, and the basic claim has to be information that causes the plaintiff embarrassment or similar to disclose. It also likely can’t be information that is traditionally regards as public. These boundaries impose a spectrum, a continuum, somewhere along which a boundary can be established, even bough I can’t say now exactly where it is. A boundary established differently from where I might place it is nonetheless legitimate, as long as it’s on the continuum somewhere. But if courts were to try to extend the provision to matters outside the continuum, such as creating a general right of privacy or right to be left alone unrelated to private information, that would be illegitimate.

  16. Reminds me of HRS ?5-7.5 “Aloha Spirit”. (a) “Aloha Spirit” is the coordination of mind and heart within each person. It brings each person to the self. Each person must think and emote good feelings to others. ? “Aloha” means mutual regard and affection and extends warmth in caring with no obligation in return. “Aloha” is the essence of relationships in which each person is important to every other person for collective existence. “Aloha” means to hear what is not said, to see what cannot be seen and to know the unknowable.
    (b) In exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations and service to the people, the legislature, governor, lieutenant governor, executive officers of each department, the chief justice, associate justices, and judges of the appellate, circuit, and district courts may contemplate and reside with the life force and give consideration to the “Aloha Spirit”.

  17. “What is an “reasonable” search or seizure?”

    My opinion, there should be a strong(but not necessarily absolute) presumption that searches and/or seizures not done under the authority of a warrant are per-say unreasonable. No categorical exceptions allowed.

  18. As a New Hampshire resident, I first learned of this proposed provision as my pen hovered over the fill-in bubble. What did I gain if I filled in YES or what did I lose if I filled in NO? It struck me that, whatever it meant, voting YES could not be interpreted to mean “Burst through my door without a warrant and seize any or all property and documents, after shooting my dog, while I lay zip-tied face-down on the concrete garage floor.” Ever fearful of subterfuge by lieberal subversives, I voted YES.

    1. “Lieberal subversives” bursting in without warrants, grabbing stuff, shooting your dog, and cuffing you? Maybe it’s different in New Hampshire, but in most places where this happens, it is done by conservative-voting cops, and you might want to look at the voting lineup on the cases that authorize such behavior.

  19. The provision is vague; so is the right to privacy in the California Constitution, and I suspect the same is true of similar provisions in other state Constitutions. Constitutional provisions, unlike statutes, are almost always vague: their drafters paint with broad brushes. Regardless of whether the “contract” theory works for measures enacted by the Legislature, it seems silly when considering measures enacted by the voters. That said, I think courts may reasonably infer that the arguments in the ballot pamphlets provide some indication of the voters’ intent: Although not all voters look at them, at a minimum they all have an opportunity to look at them. The arguments do not provide an indication of precisely how the voters wanted to decide any particular case, but they do indicate the general policies the voters were trying to implement. Once a court has articulated those general policies, it should then attempt to apply them to the facts of the case before it. The Constitution is “living” in that precise notions of what is an invasion of privacy will evolve over time, but the general categories of the types of information that the provision is directed at may remain more static.

    1. “That said, I think courts may reasonably infer that the arguments in the ballot pamphlets provide some indication of the voters’ intent:”

      Me, I’m more of a textualist. Intent, to the extent that it is not adequately determinable from the text itself is irrelevant.

Please to post comments

Comments are closed.