The 40-odd year march in this nation’s decline has been marked not only by cynical transformations (e.g. citizens to consumers) but also the acceptance of political canards made possible by a degeneration of historical memory. Because the ‘life cycle’ of most Americans’ political-historical memory barely stretches 5 years, it is possible to hoodwink too many in the populace and especially getting them to accept as facts shibboleths that are anything but. A case in point is the conviction that there are only “negative” rights inherent in the Bill of Rights, and there can be no “positive” ones.
A negative right implies that there are ‘x’ things the government can’t do to you, say take away your guns or deny you property ownership, disposal. By contrast, positive rights assert there are actual positive rights to which you are entitled under the Bill of Rights, say health care and privacy. Most of those on the Right, who have only passing acquaintance with the Federalist papers, assert positive rights like to privacy don’t exist, but they are wrong. This is important because one reason there hasn’t been more outrage at the disclosure of massive NSA surveillance is most Americans take for granted there is no innate right to privacy. I will argue, however, that not only does a right to privacy exist, but it underpins most other rights that inhere in the amendments to the Bill of Rights
For example, if the presumption to no right to privacy is valid, then the Fourth Amendment of the Bill of Rights is meaningless. To restate that Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
But note, “secure in one’s person, house, papers, effects” implies PRIVACY! These are after all MY private papers, my private effects, my house, etc. If an inherent right to privacy was a myth then by all accounts being secure in one’s person, papers, effects wouldn’t matter. Hell, let the whole freakin’ world see ‘em! This is why in a fascist dictatorship “personal effects” don’t exist. “Personal papers” has no meaning. The state has full monopoly, de facto ownership on whatever the person has, even his own body. Hence, in fascist dictatorships, such as existed in Nazi Germany, all personal effects, papers could be seized by the Nazis on a whim or remote suspicion - under the Reich Laws. A fundamental right to privacy, meanwhile, insists there exist bona fide entities that one can uniquely own, e.g. papers, effects – including photos or what not- that are private. Without this fundamental right, then, “personal papers, effects” has no meaning hence the 4th amendment is meaningless.
Prof. Garry Wills (‘A Necessary Evil: A History Of American Distrust of Government’, Simon & Schuster, 1999) further reinforces this point in his chapter ‘Constitutional Myths’(p. 108). He notes that citizens alone possess rights, which neither the states nor the federal government share. Both the latter retain powers and prerogatives, but not rights. Hence, the subtext is that rights can only accrue to human individuals.
The Ninth Amendment states that “the people retain unenumerated rights” "The people:" here refers to flesh and blood citizens, not to a bunch of contractual abstractions (states), or to corporations. .As Wills emphasizes and underscores (ibid.):
“The states have no natural rights. Their powers are artificial, not natural – they are things made by contract.”
Hence, the term "state's rights" is bogus, in error. States have prerogatives, not rights, because states exist as governmental entities not a persons-individuals. It follows that the people then also have the unenumerated right to privacy. While said right isn’t specifically listed in the Constitution the Founders understood that as time went on new rights would emerge which they might not be able to think of (e.g. to health care). In terms of privacy, however, it is clear the language of the 4th amendment shows that privacy is presumed hence the Founders saw no need to elaborate it as a separate right. Hence, use of the descriptor “personal” applied to papers, effects etc. naturally means private! Even if one for some reason disputed the argument, he’d still be left with the fact of the unenumerated rights under the Ninth amendment.
What we conclude then is the NSA, government mass surveillance, mass warrants recently revealed, discloses a rejection not only of citizens’ fundamental right to privacy but any right to be secure in one’s person, papers, effects. So, screw the citizen, the gov’t has arrogated to itself the right to seize anything deemed personal or private once it’s within its purview – whether a phone record, an internet communication, email or whatever. The powers -that- be may really argue they’re doing this for our own good, but in reality they are acting the part of a fascist dictatorship in denying any right of privacy or recognition of individuality at all. Note the reasons or their declared motivations for doing so are irrelevant.
Americans, if they have sense, should not fall into this trap and just shrug it off as no biggie. Instead they ought to be at least as outraged as I am and be writing to their reps, demanding the gov’t back off. Alas, it may be too late for that. Remember again, as Rachel Maddow observed in her May 3, 2011 show- Osama bin Laden’s aim was never to destroy the U.S. or kill thousands but to get it to spend itself into bankruptcy through over reactive wars and to eviscerate civil liberties for its citizens. To the extent those objectives have been accomplished, yes, OBL has won though he rests at the bottom of the sea. Had there been recognition of a right to privacy, we’d at least not have lost so many civil liberties- so might have been able to declare a partial victory.