The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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?
- 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?
- 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)?
- 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?
- That traditionally accepted intrusions are grandfathered in as legitimate, but that ones introduced after the amendment is enacted are not?
- 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?
- 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,
- 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.)
- Do you focus on the original meaning of text?
- On the original intention of the drafters?
- Do you favor a "living Constitution" approach?
- 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.