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I was under the impression that the Constitution explicitly granted the federal government certain powers, and the 10th amendment clarified that if a power wasn

I was under the impression that the Constitution explicitly granted the federal government certain powers, and the 10th amendment clarified that if a power wasn't granted to the fed in the Constitution, it was because the power was retained by the states and the people. So the Constitution wouldn't need to grant the people a right to privacy. It was implicit, and even further emphasized by the 4th amendment.

rayiner 13y ago
In the Constitution, the federal government is given broad, exclusive, power over national security and defense. Intelligence-gathering has always a part of national security and defense. That was a key purpose of the documents, to address the failure of the Articles of Confederation to provide for a robust centralized defense. Intelligence gathering has always been a part of the historical understanding of defense and national security. Therefore, the federal government can conduct intelligence gathering unless some affirmative right prevents it. The 10th amendment just says that a right need not be enumerated in the Constitution to exist. However, you still have to prove that such a right exists, say by pointing to its recognition in English common law. Just because it isn't mentioned in the Constitution doesn't mean it doesn't exist, but it also doesn't mean that it exists and is just "implicit." The idea that communications are protected by a broad "privacy right" that protects even information you share with others just can't be traced back to something the founders would have understood to be a "right" much less something so fundamental that they might leave it implicit.
- dragonwriter 13y ago
  > In the Constitution, the federal government is given broad, exclusive, power over national security and defense Like "privacy", "national security" appears nowhere in the Constitution. The federal government is given certain specific powers that can be grouped under the umbrella "national security", just as it is given certain specific limits based on particular rights that can be grouped under the umbrella "privacy".
  - rayiner 13y ago
    "National security" falls under the umbrella of "common Defence" (which appears twice in the Constitution). Indeed, one of the motivating forces behind the creation of a stronger federal government under the Constitution was Shay's Rebellion, which was a purely internal threat. The term ("privacy") does not appear in the Constitution, and the specific limits on federal power that do appear can't be generalized to fit under the umbrella of that term. There is no indication that e.g. the founders intended the 5th amendment protection against self-incrimination to be rooted in a "privacy" concept. It's clearly based on a "due process" concept, which explains why there is no general right to refuse to testify (which is what you'd have if the right was based on privacy) but only a right to refuse to testify in a way that might incriminate yourself. The concern is about he extreme persuasiveness of confessions, and the potential for abuse from coerced confessions, not about the right to keep information from a government investigation. Similarly, the 3rd and 4th are better understood as rights based on the sanctity of the home and person (notably since the 4th conspicuously omits any reference to communications). Attempts to find a right of "privacy" in the Constitution are extremely strained, for the simple reason that there isn't one. The founders just weren't thinking of this overriding concept of "privacy" as an umbrella concept for rights as disparate as protection against search and seizure, self-incrimination, or a right to an abortion.
    - dragonwriter 13y ago
      > National security" falls under the umbrella of "common Defence" (which appears twice in the Constitution). Both in reference to the purpose of the Constitution and the scope of purposes supported by Congress taxing power, but neither reference is to a general federal blanket power with regard to "common defense".
      - rayiner 13y ago
        Powers under the Constitution are generally read to be complete within a particular domain except to the extent they are counter-balanced by affirmative rights. See Gibbons v. Ogden ("If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects...").

rayiner 13y ago

In the Constitution, the federal government is given broad, exclusive, power over national security and defense. Intelligence-gathering has always a part of national security and defense. That was a key purpose of the documents, to address the failure of the Articles of Confederation to provide for a robust centralized defense. Intelligence gathering has always been a part of the historical understanding of defense and national security. Therefore, the federal government can conduct intelligence gathering unless some affirmative right prevents it. The 10th amendment just says that a right need not be enumerated in the Constitution to exist. However, you still have to prove that such a right exists, say by pointing to its recognition in English common law. Just because it isn't mentioned in the Constitution doesn't mean it doesn't exist, but it also doesn't mean that it exists and is just "implicit." The idea that communications are protected by a broad "privacy right" that protects even information you share with others just can't be traced back to something the founders would have understood to be a "right" much less something so fundamental that they might leave it implicit.

dragonwriter 13y ago
> In the Constitution, the federal government is given broad, exclusive, power over national security and defense Like "privacy", "national security" appears nowhere in the Constitution. The federal government is given certain specific powers that can be grouped under the umbrella "national security", just as it is given certain specific limits based on particular rights that can be grouped under the umbrella "privacy".
- rayiner 13y ago
  "National security" falls under the umbrella of "common Defence" (which appears twice in the Constitution). Indeed, one of the motivating forces behind the creation of a stronger federal government under the Constitution was Shay's Rebellion, which was a purely internal threat. The term ("privacy") does not appear in the Constitution, and the specific limits on federal power that do appear can't be generalized to fit under the umbrella of that term. There is no indication that e.g. the founders intended the 5th amendment protection against self-incrimination to be rooted in a "privacy" concept. It's clearly based on a "due process" concept, which explains why there is no general right to refuse to testify (which is what you'd have if the right was based on privacy) but only a right to refuse to testify in a way that might incriminate yourself. The concern is about he extreme persuasiveness of confessions, and the potential for abuse from coerced confessions, not about the right to keep information from a government investigation. Similarly, the 3rd and 4th are better understood as rights based on the sanctity of the home and person (notably since the 4th conspicuously omits any reference to communications). Attempts to find a right of "privacy" in the Constitution are extremely strained, for the simple reason that there isn't one. The founders just weren't thinking of this overriding concept of "privacy" as an umbrella concept for rights as disparate as protection against search and seizure, self-incrimination, or a right to an abortion.
  - dragonwriter 13y ago
    > National security" falls under the umbrella of "common Defence" (which appears twice in the Constitution). Both in reference to the purpose of the Constitution and the scope of purposes supported by Congress taxing power, but neither reference is to a general federal blanket power with regard to "common defense".
    - rayiner 13y ago
      Powers under the Constitution are generally read to be complete within a particular domain except to the extent they are counter-balanced by affirmative rights. See Gibbons v. Ogden ("If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects...").