July 20, 2005

The Right to Privacy is in the Constitution

Is a right to privacy in the United States Constitution? Yes it is - but not where you think it is. A lot of people are looking into the amendments to the Constitution for something that can be construed as privacy. Others say that it's just not there. But it is there and it's right in the original constitution.

Article 1, Section 8, Clause 7:

To establish Post Offices and post Roads;

In listing the powers that the United States should have to serve the needs of the people Article 1, Section 18 lists 18 things. Post offices is one of them. It is in the Constitution that mail is important.

So - what does this have to do with privacy you might ask? To address that we first have to ask ourselves 2 questions. What is mail in the context of 18th century technology - and - why is it so important to make it into the constitution?

In 1776 there were no telephones, no television, no email. The only form of long distance communication that existed at the time was mail. And mail by definition was understood to be PRIVATE. In that era with the technology at the time the word "mail" meant long distance private communication. And long distance private communication was so important that the founding fathers put it into the Constitution.

The privacy aspect of mail is established in federal law.

TITLE 18 > PART I > CHAPTER 83 > 1703

1703. Delay or destruction of mail or newspapers

(a) Whoever, being a Postal Service officer or employee, unlawfully secretes, destroys, detains, delays, or opens any letter, postal card, package, bag, or mail entrusted to him or which shall come into his possession, and which was intended to be conveyed by mail, or carried or delivered by any carrier or other employee of the Postal Service, or forwarded through or delivered from any post office or station thereof established by authority of the Postmaster General or the Postal Service, shall be fined under this title or imprisoned not more than five years, or both.

(b) Whoever, being a Postal Service officer or employee, improperly detains, delays, or destroys any newspaper, or permits any other person to detain, delay, or destroy the same, or opens, or permits any other person to open, any mail or package of newspapers not directed to the office where he is employed; or

Whoever, without authority, opens, or destroys any mail or package of newspapers not directed to him, shall be fined under this title or imprisoned not more than one year, or both.

Why is it illegal to open someone else's mail if you don't destroy it or delay it? If the person gets the mail without delay then what has changed in reading it first? Only one thing. You have violated their privacy. It is established in federal law that privacy applies to mail. The reason for this is that it is part of our culture to respect the privacy of others by prohibiting the reading of other people's mail. And in 1776 mail was considered as private as it is today. And the founding fathers considered mail important enough to put it into the Constitution.

I therefore contend that the founding fathers recognized mail not only for the aspect of mail being long distance communication, but that it was private, and the element of privacy was contemplated in the establishment of post offices clause.

More research needs to be done to fully support this. What needs to be researched is to understand why the founding fathers considered mail so important. And then to establish what the laws and culture was regarding the privacy of mail and if the founding fathers depended upon that privacy. Was the mail used to convey secret information where a letter was sealed and there was an expectation that the postal carriers would respect the seal? I believe that once researched it will be obvious that the element of privacy was part of the post office clause.

Other Support for Constitutional Privacy

The First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...

Why - because religion is private.

The Fourth 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.

Clearly the search part is prohibited because of personal privacy. The seizure part is about the ownership of property, but searching doesn't take away property, it takes away privacy. The Fourth Amendment protects a persons privacy by prohibiting unreasonable searches. The Fourth Amendment is really saying "The security of a person's right to privacy shall be protected by prohibiting unreasonable searches." I contend that the Fourth Amendment screams privacy.

Clearly privacy is contemplated in the Constitution even if it isn't directly spelled out. I invite everyone to take this work, copy it, and build on it. Spread it around because those who think privacy isn't in the Constitution just don't get it.

Posted by marc at July 20, 2005 04:27 PM
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