Listen to Nino

USA Today broke the story of the week: the National Security Agency has been logging the phone calls of tens of millions of Americans in the War on Terror. Some believe this is in violation of our constitutional rights—the Fourth Amendment protection against unreasonable or unwarranted search and seizure, along with the ethereal right to privacy—and others do not. It isn’t immediately clear who is correct due to the vagaries of those rights themselves.

Some argue that this is not unreasonable search and seizure, as it isn’t searching or seizing anything, really: no calls are recorded, just data on which phone numbers and when. Others argue that this isn’t a violation of the right to privacy, because the right to privacy doesn’t exist. They aren’t wrong. The right to privacy is not written into the Bill of Rights—rather, it was inferred from the “penumbras” of the first, third, fourth, fifth, ninth and fourteenth amendments, beginning in Griswold v. Connecticut in 1965. The tenuous basis of this right is responsible in part for charges of judicial activism on the part of the Supreme Court, the controversy surrounding abortion ruling Roe v. Wade, and for the feeling that Bush’s activities feel illegal though they may not be in actuality.

I have little use for Justice Antonin Scalia’s famous ornery manner and his contrarian flamboyance, but it’s nearly impossible to question his intelligence. When he spoke at the Institute of Politics last year, he asserted his judicial principle: if it isn’t in the Constitution, it isn’t constitutional; if we want it in the Constitution, let’s add it. I agree. Let’s amend the Constitution to include the right to privacy.

Nearly every American agrees that there are certain spheres where the government does not belong, and that we have a right to be free from government intrusion in those areas—it’s a part of the American ethos. The Constitution hints at it, as the justices recognized in Griswold, but doesn’t flat-out say it. The fact that this near-universal sentiment isn’t explicitly reflected in the fundamental law is where all the controversy comes from—a disconnect between our national understanding of Americanism, and Americanism in law. It’s time to close the philosophy gap.

In 1948, the United Nations General Assembly—including the U.S.—ratified the Universal Declaration of Human Rights. Article Twelve states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.” This isn’t a legal warrant for murder or violence or incest or any other heinous crime, protected behind the façade of the home. It’s a statement of our true and foundational liberal ideals, reaffirmed in our hour of victory over fascism, declared in the face of our new struggle against totalitarian communism: no government needs Total Information Awareness, and no man is truly free when the government strives for it. We believed it then for the whole world, in our finest hour—I think we still believe it now.

Let’s bring the Constitution in line with our ideals, and assert our right to privacy in the fundamental law.



Peter C. D. Mulcahy ’07, a former Crimson associate editorial chair, is a government concentrator in Cabot House.