You Are Sixteen, Going On . . .

Stupidity. My apologies to Rogers, Hammerstein, Julie Andrews, and all the other cast and crew of The Sound of Music.

There's been a bit of a dust-up in the Letters to the Editor of the OmahaWorld-Herald lately, all about whether there exists any right to privacy in our system of government.

While the consensus seems to be "No," and while that concensus is wrong, the arguments for and against it are both totally incompetent.

This is news?

One writer claimed there should be a right to privacy because no one needed to know or care about what prostitutes do . . . and the stinging reply, from a 16-year-old girl, says that since no one wants to commit crimes except in private, "of course there is no right to privacy."

Both writers missed the point. Criminal laws, enacted by the legislature of the appropriate jurisdiction and enforced by the police apparatus of the said same jurisdiction, supercede any right to privacy that exists for those activities.

However, there are in addition many, many things that people want to keep private that are NOT statutorily defined crimes, and thus are protected by a right to privacy that I, for one, believe exists. (More on that in a moment.) I don't want anyone watching me while I am doing my business in the bathroom--no one else wants to watch, either, believe me--but that does not mean that I have no right to privacy in that space, as long as what I am doing has not been statutorily defined as being a crime.

In other words, it works very much like the 10th Amendment: whatever is not specifically defined and allowed or defined and forbidden is left to the people.

The Founding Fathers did not live in the 21st century: they did not think with a vocabulary that included "privacy" the way we use it nowadays. That does NOT mean, however, that they did not intend for us not to have any right to privacy. Consider the Bill of Rights. If one looks at govnermental behavior that is prohibited, a lot of it has to do with intrusions on an individual's home or person. If the government cannot force you to house soldiers without your consent, and if the government cannot force you to testify against yourself, that means that you can keep the government out of aspects of your life (that aren't specifically defined as being criminal, that is). What is privacy if not that?

Besides, there's always that pesky 10th Amendment to consider. And since "privacy" is nowhere in the US Constitution mentioned as being subject to governmental restriction, it therefore is left as a right to the people. How's that for using the argument of "original construction" against those who mistakenly perpetrate it today?

If the Constitution cannot live and breathe, it can no longer govern us effectively. It is not the same world it was in 1789; unless you're willing to go back there, in ALL things, you cannot restrict the document to what its words meant in 1789 . . . the Founding Fathers were not omniscient, and they, at least, were smart enough to know that. Which is precisely why they drafted the Constitution as they did, so that it could flex and grow and still be relevant as the world changed around it. Heck, if we are going to limit ourselves to original intent, we do not need a judicial system at all. Why people like Antonin Scalia cannot figure that out is beyond me.