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THE RIGHT TO PRIVACY

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1 THE RIGHT TO PRIVACY on Wed Nov 26, 2014 11:36 am

karl rove


Reclusion Perpetua
The Issue: Does the Constitution protect the right of privacy? If so, what aspects of privacy receive protection?

The Philippine and U. S. Constitution contains no express right to privacy. The Bill of Rights, however, reflects the concern of for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and privilege against self-incrimination, which provides protection for the privacy of personal information. In the US, the Ninth Amendment states that the "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people." The meaning of the Ninth Amendment is elusive, but some persons (including Justice Goldberg in his Griswold concurrence) have interpreted the Ninth Amendment.

The question of whether the Constitution protects privacy in ways not expressly provided in the Bill of Rights is controversial. Many originalists, including most famously Judge Robert Bork in his ill-fated Supreme Court confirmation hearings, have argued that no such general right of privacy exists. The Supreme Court, however, beginning as early as 1923 and continuing through its recent decisions, has broadly read the "liberty" guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage, and termination of medical treatment.

In Philippine jurisdiction, there are cases which violates privacy rights but has not sinked in the public consciousness. My postgraduate studies in Harvard, led me to believe that a person has the right to be left alone; that, the dead, should be given lasting peace not only in heaven, but his/her pictures whether gruesome or not is protected from being publicized. Facebook afficionados are guaranteed the right not to be annoyed and pictures ought not to be plastered in the world of cyber kenetic effects.

In more recent decades, the Court recognized in Cruzan v Missouri Department of Health (1990) that individuals have a liberty interest that includes the right to make decisions to terminate life-prolonging medical treatments (although the Court accepted that states can impose certain conditions on the exercise of that right). In 2003, in Lawrence v Texas, the Supreme Court, overruling an earlier decision, found that Texas violated the liberty clause of two gay men when it enforced against them a state law prohibiting homosexual sodomy. Writing for the Court in Lawrence, Justice Kennedy reaffirmed in broad terms the Constitution's protection for privacy:

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life....The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.'”

One question that the Court has wrestled with through its privacy decisions is how strong of an interest states must demonstrate to overcome claims by individuals that they have invaded a protected liberty interest. Earlier decisions such as Griswold and Roe suggested that states must show a compelling interest and narrowly tailored means when they have burdened fundamental privacy rights, but later cases such as Cruzan and Lawrence have suggested the burden on states is not so high.

The future of privacy protection remains an open question. Justices Scalia and Thomas, for example, are not inclined to protect privacy beyond those cases raising claims based on specific Bill of Rights guarantees. The public, however, wants a Constitution that fills privacy gaps and prevents an overreaching Congress from telling the American people who they must marry, how many children they can have, or when they must go to bed. The best bet is that the Court will continue to recognize protection for a general right of privacy.

In more recent decades, the Court recognized in Cruzan v Missouri Department of Health (1990) that individuals have a liberty interest that includes the right to make decisions to terminate life-prolonging medical treatments (although the Court accepted that states can impose certain conditions on the exercise of that right). In 2003, in Lawrence v Texas, the Supreme Court, overruling an earlier decision, found that Texas violated the liberty clause of two gay men when it enforced against them a state law prohibiting homosexual sodomy. Writing for the Court in Lawrence, Justice Kennedy reaffirmed in broad terms the Constitution's protection for privacy:

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life....The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.'”

One question that the Court has wrestled with through its privacy decisions is how strong of an interest states must demonstrate to overcome claims by individuals that they have invaded a protected liberty interest. Earlier decisions such as Griswold and Roe suggested that states must show a compelling interest and narrowly tailored means when they have burdened fundamental privacy rights, but later cases such as Cruzan and Lawrence have suggested the burden on states is not so high.

The future of privacy protection remains an open question. Justices Scalia and Thomas, for example, are not inclined to protect privacy beyond those cases raising claims based on specific Bill of Rights guarantees. The public, however, wants a Constitution that fills privacy gaps and prevents an overreaching Congress from telling the American people who they must marry, how many children they can have, or when they must go to bed. The best bet is that the Court will continue to recognize protection for a general right of privacy.

In more recent decades, the Court recognized in Cruzan v Missouri Department of Health (1990) that individuals have a liberty interest that includes the right to make decisions to terminate life-prolonging medical treatments (although the Court accepted that states can impose certain conditions on the exercise of that right). In 2003, in Lawrence v Texas, the Supreme Court, overruling an earlier decision, found that Texas violated the liberty clause of two gay men when it enforced against them a state law prohibiting homosexual sodomy. Writing for the Court in Lawrence, Justice Kennedy reaffirmed in broad terms the Constitution's protection for privacy.

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life....The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.'”

One question that the Court has wrestled with through its privacy decisions is how strong of an interest states must demonstrate to overcome claims by individuals that they have invaded a protected liberty interest. Earlier decisions such as Griswold and Roe suggested that states must show a compelling interest and narrowly tailored means when they have burdened fundamental privacy rights, but later cases such as Cruzan and Lawrence have suggested the burden on states is not so high.

The future of privacy protection remains an open question. Justices Scalia and Thomas, for example, are not inclined to protect privacy beyond those cases raising claims based on specific Bill of Rights guarantees. The public, however, wants a Constitution that fills privacy gaps and prevents an overreaching Congress from telling the American people who they must marry, how many children they can have, or when they must go to bed. The best bet is that the Court will continue to recognize protection for a general right of privacy.

In case, just in case, your privacy has been invaded. Don't hesitate to let me know. I will trailblaze your concern.

Karl Rove

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