Friday, June 20, 2008


So the Democratic Congress could not resist sacrificing our 4th Amendment rights on the altar of FISA. Providing immunity for corporations to do the bidding of a corrupt and power mad Republican administration. Other bloggers have focused on the immediate effect of this craven legislation that gives tyrants carte blanche to intercept your communications and its chilling effect on freedom of expression and political opposition. For me, I am looking at the larger political fish being fried, which is the conservative assault upon a right to privacy as such.

The 4th Amendment doesn't quite cover the concept of personal privacy:

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.

It is closer to property rights, placing physical security in the same bucket as security of personal possessions. Thus, in this way of thinking, the problem is not the government (or another entity) knowing what you have said, but taking possession of the mode of communication - letters, emails, stone tablets, etc. The content of these instruments is not protected. While you are free to say or think whatever you like, a right to free speech, you have no constitutional right to private communication of such thoughts.

The conservative assault on Roe v. Wade has virtually nothing to do with abortion and everything to do with privacy. People of means will always find ways to be rid of an unwanted pregnancy. I believe it was Bob Barr (someone please correct me corrected) who, during the farcical attempt to impeach the Big Dog, was uncovered as not only having had an affair but also of paying for his mistress wife to have an abortion. The part about Roe that frightens the conservatives is the idea people may do as they wish without having to report to and get the consent of a (paternal) authority, making the intimate fabric of their lives a legitimate object of scrutiny and control.

Before Roe there was Griswold, declaring that birth control was not something subject to state control. The emphasis on reproduction and control of one's body is not an accident in the court battles over privacy. If privacy is the right to be free of intervention in how you conduct your life, and if you already have at least partial property rights in your body, then the wedge to use to undermine privacy - and ultimately related rights such as freedom of speech, worship and property rights - is to target those interactions where bodily integrity is argued to be compromised, most obviously in pregnancy but also in sexual acts, disease control (key in harassment of gays) and general medical procedures. In other words, they try to establish some kind of property right or material interest in your body that is defensible in court.

The invasion of modes of communication can be seen in this light, with the government claiming to have a material interest in communications as such, just as they claim a material interest in the pregnant or homosexual body as such, to legitimize intervention in the content of those communications. The approach is turning it into a property issue in which an external entity has some defined material interest. A Telco owns the transmission medium, an ISP owns the servers, etc.

Objection to universal health care must be examined from this perspective. If everyone, everywhere must be insured, then there is no longer such a need for the insurance and medical companies to know intimate details about you. It means they no longer have a property right in your personal data and thus lose claim on that part of your intimate life. They then lose the right to exchange and sell your data, making money by selling you out.

The same dynamic underlies the infuriating condition of identity information. People should not have to opt out of having their identity (name, sex, age, address, purchasing habits, travel itineraries, etc.) sold to the highest bidder. When identity and health information get combined, the individuals are the losers. You don't even need to posit a fascist government (though that is what movement conservatism aims for) to see how the lack of an explicit right to privacy is used to undermine the efficacy of other civil rights.

Hillary Clinton is a proponent of privacy rights, no doubt in part because of how profoundly her own have been violated over the last several decades, but I would wager even more so because of her life-long work in defense of the most vulnerable people in society. I cannot find the link now, but I know I have read about her support for constitutional amendment to enshrine a citizen's right to privacy. Reproductive rights, which are more than just abortion rights, would finally have a presumption of privacy instead of trying to make certain situations and procedures protected. Marriage would also fall under the protection of privacy. Your health records and your economic transactions would be yours, not the property of corporations. And so forth.

What I want to ask the Obamacans is why should we expect The Precious to defend any of our fundamental personal rights, let alone push for the unequivocal foundation of another, if he is the candidate of the same Democrats who are now flushing our civil rights down the toilet? Obama is the Establishment candidate. He is a member of the club that is failing to defend us now.

Where is his commitment to our right to privacy?


NOTE: A final sentence has been added to the paragraph beginning "Before Roe there was Griswold" to make the argument more clear. Several people have commented and emailed that they were uncertain what I mean in that paragraph.


femB4dem said...

As far as I have been able to ascertain, Obama has no committment to anything except raising money and becoming president. I have lost track of how many things he has flipped on since becoming the "presumptive" nominee: Public financing, NAFTA, Kyl-Lieberman resolution, immediate withdrawal from Iraq, now FISA. I don't think anyone can honestly say what Obama actually, truly, stands for. The fact that he has been able to successfully sell himself as some kind of new breed of politician is mindboggling, and is a testament to how truly rotten our mainstream media has become.

bearded librarian said...

I hadn't thought previously about the privacy connections you make, between reproductive and abortion rights, universal health care, FISA and identity theft. They are, in fact, all of a piece, as you say, boiling down to a need for control by the worst kind of "parent." Patriarchy, in a box.

I also see that court battles, however many or few successfully won, can only buy time. They don't change the nature of the real war taking place, mob rule vs. individuation, because the discussion focuses on symptoms of the problem only. Court rulings have surely changed the civic landscape since the 60s, but the status quo of those in power remains intact.

Speaking to the opt-out provision you mention regarding identity privacy, this link, which I think came from you in an earlier post,

is an article by John Cassidy in the New York Review of Books, "Economics: Which Way for Obama." Cassidy puts some flesh on Obama's automatic opt-in of retirement accounts for workers.

In what I find an incredibly paternalistic stance, Obama proposes to save people from themselves by mandating workplace savings: money would be "contributed" by the employee from payroll deductions and deposited into an account of the employer's choosing (including the financial institution, the type of fund, the risk level, etc. -- decided by the employer), all without the benefit of the employee's will, choice or consultation. WTF is this? It would take a specific opt-out action by the employee, once he or she figured out how to cut through the firm's human resources bureaucracy, to stop it.


"That's why I've proposed automatic workplace pensions. There will be no red tape or complicated forms - employers will provide a direct deposit of a small percentage of each paycheck into your account. You can add to it, or you can opt out at any time. And employers will have an easy opportunity to match employee savings. If you switch jobs, your savings will roll over into your new employer's system. If you become self-employed, you will control your account. Studies show that about 80 percent of Americans will enroll if given the option to pursue my plan. This will put a secure retirement within reach for millions of working families."

So, no, I don't think our right to privacy is very much on Obama's mind these days.

Cathy said...

Thanks for bringing privacy into the forefront of the discussion. It's the one winning argument that unites liberals and conservatives (look at the Terry Schiavo case for a primer).

We forget so much by reinventing the wheel with each political dispute. This argument goes back to inquisitors questioning the commitment of converts and back further. It's the fundamental right to be left alone until such time as the greater good demands it.

But the greater good must be a real need -- i.e. taxes to pay for defense, police, and schools -- as opposed to made up fantasies of weak leaders.

That's why you cannot rely on Obama to deliver it. He needs the identifying information of his supporters sliced and diced so he can gather as much funds from them as possible. That slicing and dicing also lets him see them as less than human beings, which makes under bus tossing that much easier.

As I keep reading how Obama infuriates a different group each day, I gather some hope. Then my rational side stomps it out - must wait until 2012.

But oh what a long four years we face, not matter which ones wins. (Though we will only have four years tops with either one.)

gendergappers said...

Interesting how so many of the Dem "leadership" who have been working sub rosa for BO's nomination voted to continue to support the Bush anti-privacy issues. "Change you can believe in" is quickly flip-flopping to "yaa, yaa, suckers, shortchanged ya".

Bet the unity pony kicks us all in the slats too once they get our contributions and vote.

CMike said...

Slightly off topic, but anyone who has not read the Court's opinion in Roe v. Wade (1973) might consider investing some time to do that. The Justice Blackmun opinion provides a thorough and rather current review of many of the controversies associated with the issue of abortion.

Alas, before you get to the parts that are worth reading, there is plenty of legalese and a distracting discussion about the standing of a second plantiff and an intervenor, i.e. two parties who had joined their cases with Roe.

To cut out some of this, I suggest skipping some text at the link below and starting at a particular point. But, for my short-cut to do you any good, you'd first have to read this passage from the Blackmun opinion:

Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person. For purposes of her case, we accept as true, and as established, her existence; her pregnant state, as of the inception of her suit in March 1970 and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to obtain a legal abortion in Texas. Viewing Roe's case as of the time of its filing and thereafter until as late as May, there can be little dispute that it then presented a case or controversy and that, wholly apart from the class aspects, she, as a pregnant single woman thwarted by the Texas criminal abortion laws, had standing to challenge those statutes.

Indeed, we do not read the appellee's [Dallas County District Attorney Henry Wade's] brief as really asserting anything to the contrary. The "logical nexus between the status asserted and the claim sought to be adjudicated," and the necessary degree of contentiousness, are both present.

The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the District Court hearing on May 22, 1970, or on the following June 17 when the court's opinion and judgment were filed. And he suggests that Roe's case must now be moot because she and all other members of her class are no longer subject to any 1970 pregnancy.

The usual rule in federal cases is that an actual controversy must exist at stages of appellate or
certiorari review, and not simply at the date the action is initiated.

But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied.

Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be "capable of repetition, yet evading review."

We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.


If you can set aside some time for this, I suggest you go here scroll down past where it reads " MR. JUSTICE BLACKMUN delivered the opinion of the Court" which you'll find about 5% of the way down the page. Keep scrolling past sections I, II, III, and IV to section V, which is at about 20% of the way down the page, and begin reading where it says, "The principal thrust of appellant's attack on the Texas statutes..."

It is a long read but you only have to scroll down to the 60% point before you reach the end of the opinion and the beginning of the footnotes. And, of course, don't let yourself get caught up reading the case citations, you skip over them.

I was going to make a point about Griswold but I've gone on too long already.

Cyn said...

Obama's FISA stance is here:

Anna Belle said...

Nice work A. I discussed similar issues as they relate to reproductive rights in the third part of my series, The Specter of Roe v Wade, which can be found here:

Also, I found a curious article in the Washington Weekly Standard which apparently uses huge chunks of your Jacksonian v Stevensonian argument. They even preserved the use of "Jacksonian" to identify Reagan Democrats, but used "Academician" instead of Stevensonian. I thought it was interesting and wondered if the author had read your work, of if the idea was original. There was a lot of talk about warriors and such, which you never did. Anyway, if you're interested, you can find that article here:

show me said...

I have always thought the years of demonization of Hillary have always been because she represents real danger to the status quo.She and Bill have mastered the complexities, have the ability to synthesize, and explain it to the american people in understandable language.If left undamaged they could lead us in a new direction.Hillary even more than Bill.

With Obama the facist continum is circling in on itself. How long will it be before the "whole foods nation" is telling people that if they do not adhere to proscribed health regimes they do not deserve healthcare?

I actually heard a conversation on NPR recently discussing that the rise in food prices was good for us because when the cost of "unhealthy food" is as high as healthy food people will start to buy the healthy food.No mention of just how the poor and the near poor are supposed to eat.

Shainzona said...

There is absolutely no doubt in my mind that "the" kumbaya issue for Obama to play friends with Republicans will be a women's right to choose.

Today Talk Left posted the following about another of Obama's stellar advisers:

One of America's foremost legal scholars, Cass Sunstein is a professor at Harvard Law School and a visiting professor at The University of Chicago Law School, and serves as an advisor to Obama for America.

Cass Sunstein is an advisor for Obama for America? That is extremely troubling as Cass Sunstein holds views that I believe should be anathema to most progressives. For example, Sunstein supported John Roberts for Chief Justice of the Supreme Court:

The Roberts nomination is not welcomed by those who object to the rightward drift of the federal courts or believe that Justice O'Connor's successor should be no more conservative than she. . . . But at this point in our history, the most serious danger lies in the rise of conservative judicial activism. . . For those who are concerned about that kind of activism on the Supreme Court, opposition to the apparently cautious Judge Roberts seems especially odd at this stage. . ."

I have never been more serious in my life when I say that I have the audacity to hope that Obama is not the Dem. nominee in August. Please SD's....look at these past 2 1/2 weeks and open your eyes. It's time to smell reality...not "roses".

Anonymous said...

We libs were always so fast to claim that the conservatives were playing political football with choice -- "They'll never be rid of it!" we said smugly. "It energizes their base!"

Look in the fucking mirror, people. Democraps will NEVER ensure choice for us -- because as long as they've got the bitches over the barrel on it, they can f*ck us up the *ss as much as they want. They can pour buckets of diarrhea over our heads, shovel us straight into the ocean, bury us alive, and then turn around and sneer "They'll come crawling back. They have to."

And we will. We've been raised our whole lives to swallow our own pride, over and over, and let ourselves be degraded, ignored, and beaten down, and we WILL go back to them. And every single young male and sellout girlie Obama fan will wank off rivers of jizz over our self-imposed degradation, loving every minute of it.

Dems will NEVER, EVER ensure ANY issue of real value to women. Stop thinking of them as our allies. We are women. We have no allies. Not even ourselves. So just shut the f*ck up and get them a beer, bitch. You'll die eventually, you can rest them. Meanwhile, you're a helpmeet, so STFU and get that beer.

gendergappers said...

Have you seen BO's "Presidential seal"? It's on Drudge among other places.

" has symbolic differences. Instead of the Latin 'E pluribus unum' (Out of many, one), Obama's says 'Vero possumus', rough Latin for 'Yes, we can.'

Instead of 'Seal of the President of the United States', Obama's Web site address is listed.

And instead of a shield, Obama's eagle wears his 'O' campaign logo with a rising sun representing hope ahead."

Wonder if he’ll wear ermine robes at his coronation?

CMike said...

Anna Belle (aka annabellep),

Your The Spectre of Roe v. Wade, Part III was informative. I have bookmarked both Alegre's Corner based on your recommendation and your blog.

The ABC News article you linked to within your Spectre post was quite maddening. Therein was one of those right wing lies that never dies:

Democrats for Life sees something bigger at work. They believe the Democratic establishment's backing of anti-abortion Pennsylvania senatorial candidate Bob Casey represents a sea change. In 1992, his father, the late Pennsylvania Gov. Robert Casey Sr., had been barred from addressing the 1992 Democratic National Convention because of his anti-abortion views.

Gov. Robert Casey Sr. was not denied a chance to address the "1992 Democratic National Convention because of his anti-aborition views." He was denied that chance because he refused to endorse the Democratic ticket of Bill Clinton and Al Gore. (Short version here; incomparable version here beginning at the top with the heading The Age of the Novel.)

The ABC article closes with this quote from the Democrats for Life spokeswoman:

"If I had a nickel for every person who came up to me and said 'I used to be a Democrat and I'd come back if they changed their stance on abortion,' we'd be back to a 290 majority like we had in the 1970s."

Tell that to Paul Krugman and Rick Perlstein. They pretty conclusively argue that the Democratic congressional super majority unraveled because of the Democratic Party's support of racial equality. (I still think those two underestimate the importance of the, er, reaction to the excesses of the late sixties, early seventies counter-culture. That cultural movement came to be seen, in the mind's eye of many a one-time moderate, as the inspiration for a mosaic which included our defeat in Vietnam; stagflation; an era of high crime which had demographics at its root; and the imagery of race riots and the riot at the 1968 Democratic National Convention.)

It is true that the Choice issue has mobilized a lot of conservative activists. It is also true that the Pro-Lifers have been very shrewd during the last decade by making partial birth abortion the topic of most public discussions about Choice.

Anonymous said...

It is also true that the Pro-Lifers have been very shrewd during the last decade by making partial birth abortion the topic of most public discussions about Choice.

And it's also true that Dems have been very shrewd during the last decade by allowing Roe v. Wade to hang by a thread, and thus threaten 52% of the population into supporting them by insinuating that it'd just take the slightest little jog to send it down girls, so yallz better play ball.

They will give us NOTHING. They never will -- because we have no way of getting that right hammered into stone. NO party will ever represent us.

Chinaberry Turtle said...

What Janic C. points out seems so patently true to me. To the other women on this board, what is the young female dem infatuation with Obama all about? It seems like there are lots of women in their teens and early twenties who just utterly luv Obama. The luv seems to fade as the demographic hits 30, and turns a dark shade of disgust at 40.

Is the conventional wisdom true? Is it simply that these female supporters are all from a particular niche, namely - rich white progressive families who have been able to protect their daughters from the daily and routine sexism that other women have to face? (e.g. police come to the trailer park and tell the young 20 year old lady with 2 kids and a live-in niece not to complain so much about her husband slapping her around a bit).

Two days ago I saw a bumper sticker here in town that said "Women for Obama." The car was that fancy Subaru sports car model and had ski racks on top. The car was coming out of our hip ultra-cool local version of Starbucks. (I shit you not.)

Funny - I've never seen the "Women for Obama" sticker on any of the cars pulling up to the day care center a couple blocks from my house that caters to low-income families.

Anonymous said...

That's exactly what it is, China. Women for whom feminism is a hobby, not a reality of life. They could use it, but they don't really need it -- or so they think.