Last week saw Tyler Clementi jumping off the George Washington Bridge after realizing his tryst with another man was shown on the web. The display on the web was not by accident rather it was the work of Clementi's roommate Dharun Ravi and another fellow Rutgers University student Molly Wei. After ruling Clementi's plunge as a suicide, Ravi and Wei were charged with invasion of privacy. Since that time Middlesex County Prosecutor Bruce Kaplan is considering additional charges, "We will be making every effort to assess whether bias played a role in the incident." The additional charge is to charge the duo with a hate crime.
While the action taken by Ravi and Wei violates the trust of roommates and Clementi's cowardly reaction to it, does it really warrant the label of hate crime? Let's say that Clementi does not take the plunge, is anything done? Probably not! The other charge being levied, invasion of privacy is interesting as well since nothing in the Constitutional gives anyone the right to privacy. The Constitutional protects one from right of property but not privacy. What should be the punishment for Ravi and Wei for their violation of trust? Does the punishment increase because Clementi committed suicide? Does it rate as a hate crime?
I totally disagree that nothing is done if he doesn't commit suicide. There is still a crime and Ravi would be charged. As far as the hate crime aspect, here is the definition according to the FBI website: "A hate crime, also known as a bias crime, is a criminal offense committed against a person, property, or society that is motivated, in whole or in part, by the offender’s bias against a race, religion, disability, sexual orientation, or ethnicity/national origin."
ReplyDeleteDoes the roommate broadcast this on the web if it is a hetrosexual encounter? I highly, highly doubt it based on his comments. So, it fits the definition in my opinion.
As far as privacy, the Supreme Court says the constitution protects privacy so it is in the constituion, so you are wrong with that one.
And before you label someone a coward, maybe you should go through what he did. It's easy to pass judgment on another from where you sit unaffected.
Actually, it's assumed that privacy is part of the constitution - it's an implied right, not an explicit one. But to see an implied right requires a progressive interpretation of the constitution. However, Viper's opinion on this has morphed over time from what I can glean from his prior posts on the subject.
ReplyDelete"It's easy to pass judgment on another from where you sit unaffected."
Agreed, obviously he felt his only option was suicide, wrong as that option might have been. But to call him a coward seems beyond callous when you haven't been forced to walk a day in his shoes.
Truman, I understand the implied part. My point, I guess, is that if the Supreme Court says it's there, it's there. I guess I'm waiting for the impossible. Viper to accept that in today's system the constitution protects privacy and he should base his arguments on that acceptance. To say this isn't true and poorly written: "The Constitutional protects one from right of property but not privacy." Because the constituion does protect privacy because those that determine what the constitution protects say so.
ReplyDeleteIn previous blog postings I have made attempted to make the argument that the Constitution implies that all citizens have a right to privacy. As I have been pointed out on several occasions by Clark and others, the Supreme Court does not share the same view on privacy that I advocated or the implied privacy the two of you are advocating.
ReplyDeleteSuicide is a selfish act and only creates more pain in the world. Life is fragile enough. To end ones life is callous. To say one has to walk in ones shoes to really understand is a cop out.
Have you ever dealth with serious mental health issues or been in a darker enough place where you have contemplated it?
ReplyDeleteHave you ever had one of your most private aspects of your life shared with complete strangers without wanting it to be?
I'm not sure what the fragilty of life has to do with it.
If a terminally ill cancer patient decides to end their life to avoid the longterm suffering and pain relatives will have, is that callous? What if they simply deny treatment creating the same result?
It's not nearly as clear cut as you believe.
While my intent of my original blog entry was not to address suicide, I am willing to go this tangent.
ReplyDelete"Have you ever dealth with serious mental health issues or been in a darker enough place where you have contemplated it?"
I have not dealt with a mental health issue first hand but others around me have and are. I have seen the impact it has had on their lives and toll it can take while at the same time marvel at their incredible strength to forge on.
As for that dark place, I have been in a few but ending my own life was never an option.
"Have you ever had one of your most private aspects of your life shared with complete strangers without wanting it to be?"
Yes, on more than one occasion.
As for the terminally ill - that is where I can see rational thought being applied. I have talked with many, and witnessed with my own grandparents, the toll the slow drain can have on a family. In this case, if the option to medically, professionally, end a life due to terminal illness, coma, or other incurable afflictions then yes.
Anonymous - answer me this, and others too, what do you tell a six year child that just witnessed their best friend blow his head off, fall into their lap, and die?
"Truman, I understand the implied part. My point, I guess, is that if the Supreme Court says it's there, it's there."
ReplyDeleteI completely agree, that the modern progressive view of the constitution includes the "right to privacy". In no way am I discounting this. What I'm saying is that the founding fathers didn't include it.
In my honest opinion, an amendment granting the "right to privacy" should be passed to end this discussion. It is a critical right, but not one that is written anywhere in the constitution. It needs codification.
As to the hate crime prosecution - here's my stance. If the state has a law, passed by it's legislature, that codifies in law some form of anti-hate crime legislation, then the prosecutor is bound by their obligation to uphold the states laws to pursue this avenue of inquiry.
So far, this statute has not been applied to the two in question as far as I can tell, it's merely being explored. That is the prudent course of action. What they did was reprehensible, but whether or not it's a hate crime depends upon the definition of that crime in the state of NJ. If it does then it is, if it doesn't then it's not.
It's not for us to presume that we know better for the State of NJ than their own elected officials. That's the beauty of states rights.
I don't know but again I don't see why that is relevant to this particular person.
ReplyDeleteUntil you personally deal with it, I don't think you have a right to call someone else a coward. In fact, from discussions with others, many, many others who have dealt with it, being a a coward was why they did not end their own life. But until you've been there, you can't understand.
Now, back to the topic: "the Supreme Court does not share the same view on privacy that I advocated or the implied privacy the two of you are advocating.
" Yes, they do. It's not listed specifically, it has to be implied. In fact, it's within the penumbra of the other rights that it is found.
If this is what you have argued: " I have made attempted to make the argument that the Constitution implies that all citizens have a right to privacy." Why do you say this: "The other charge being levied, invasion of privacy is interesting as well since nothing in the Constitutional gives anyone the right to privacy. The Constitutional protects one from right of property but not privacy."
On one hand you say there is no right to privacy. On the other you say there is an implied right. Which is it?
Viper, I've said it before and I'll say it again: proofread your entries. This comment is based upon my assumption that you do not believe the Constitution includes a right to privacy. I had to make this assumption based on your first comment which was thoroughly unclear.
ReplyDeleteUntil you get up in front of the U.S. Supreme Court and argue successfully that there is no implied right to privacy in the U.S. Constitution, there is in fact an implied right to privacy in the U.S. Constitution. Will the implied right to privacy ever be read out of the U.S. Constitution? My answer consists of two words: stare decisis.
"stare decisis"
ReplyDeleteVery true. But I still think that it should be codified so that we don't have to have this discussion.
Truman, what other implied rights do you think should be codified through Amendment?
ReplyDelete"Truman, what other implied rights do you think should be codified through Amendment?"
ReplyDeleteIt's easier to answer that by saying why the "right to privacy" hasn't been codified yet. This is entirely due to Roe v. Wade. Conservatives would like nothing more than to make Privacy an official right and not one based upon case law. But in doing so, they would make Roe v. Wade impossible to overturn.
It's the double edged sword that is the constitution and why it's a beautiful document.
To answer you more directly, I think that clarity around state vs. federal rights should be detailed better via an amendment. The use of the commerce clause has been nearly tantamount abuse of that clause. It was never intended to grant the federal government absolute authority.
I think a very healthy debate on this would be a good thing and final clarification via an amendment that attempts to satisfy both sides to some degree would be the best outcome.
Anonymous - "I don't know but again I don't see why that is relevant to this particular person."
ReplyDeleteYou,and Truman, said that I need to walk in the shoes of those that commit suicide. Well, the anecdote that you have no response to...I am that six year old child. So, I do not see my words as being callous.
As tragic as that might be, that still doesn't put you in the shoes of the person who killed themself and to understand their thoughts, motives, reasoning, and pain. You are projecting your experience and feelings onto another whose situation is not the same.
ReplyDeleteAgain, you still haven't answered. Does the constitution grant a right to privacy? You've said it does and it doesn't. Which is it?
ReplyDelete"You,and Truman, said that I need to walk in the shoes of those that commit suicide."
ReplyDeleteViper,
To be clear, I was saying that not just about suicide, but anything in life. Judging another person a coward for the decision they took, without fully understanding the hurdles they faced or felt they faced seems callous. Do I think it's the easy way out, yes. It's a permanent solution to a temporary problem. Sadly, for some people, it's the answer they turn to when depression sets in.
There is nothing the explicitly states right to privacy.
ReplyDeleteTruman, how do you codify something like the "right to privacy" or "interstate commerce"? It would seem to be an especially difficult task. Would an exhaustive list of all things private or interstate in nature be enough 200 years from now?
ReplyDeleteIt seems to me that the U.S. Constitution purposely avoids taking that tact precisely because it was and still is impossible to know what the future holds.
Finally, how has the commerce clause been used to give the Federal Government "absolute authority"? Are you thinking of the real impact of commerce clause opinions coupled with the Supremacy Clause? I agree with you that the commerce clause was never intended to grant the federal government absolute authority. In my view, it doesn't and it hasn't.
You are correct, there isn't, and I'm pretty sure we've all established that and agree on that. Is it implied though? You've said there is and that there isn't.
ReplyDelete"Truman, how do you codify something like the "right to privacy" or "interstate commerce"?"
ReplyDeletePrivacy is simple to codify. Simply write into an amendment format the current case law precedent.
State vs. Federal jurisdiction (ie. interstate commerce) is admittedly more difficult because of it's breadth. However, we shouldn't shy away from political questions because they're hard to answer. In truth, IMO, anything that crosses state lines requires federal oversight on some level. However, Health insurance is not one of these. State Insurance regulatory boards choose to accept other insurance as a form of reciprocity, but the insurance is not national in nature. So federal jurisdiction is not warranted. The same would be true for drug laws/enforcement, education, etc.
I'm a Jeffersonian, not a Hamiltonian. If you're not familiar with that phrasing, it means I'm for smaller central government with strong state governments. However, unlike the Tea Party, I'm not naive enough to believe that the entire federal government is bad or that the people there are somehow evil and corrupt.
You don't throw out the bushel of apples because 2 are bad. You simply remove the bad apples. The tea party wants to throw out the bushel.
Viper:
We all agree that the right to privacy is not written in the constitution. I think however, that you said some contradictory things that people want to clarify.
Is the right to privacy implied? I believe it is, although I admit I'm on thin ice as a non-progressive. However, the loss of the right to privacy opens the doors to massive government involvement in our lives. So I'll take a progressive interpretation to hold off an intrusive government in this regard.
Clark - The Supreme Court is hearing a privacy rights case today - NASA employees. Should be interesting to see what decision comes from it.
ReplyDeleteAnonymous - The reason I have said there is and there isn't implied privacy rights is because a) it is not defined b)it is only interpreted and c)I can argue both sides of the issue.
Well, there would be 80 years of precedant that helps define it and it's defined as much as any other right. A right to free speech actually doesn't tell us much. It's the cases that tell you what that means. And to an extent, it's defined as liberty in the 14th amendment and ties into numerous other rights. Simple yes or no.
ReplyDeleteI'm not asking you what you can argue. I can argue the sky is actually blue. I'm asking whether you actually think there is a right to privacy.
Truman - Personally, I'd like to interpret that the Bill of Rights through amendments that prevent us from self incrimination and unreasonable search and seizure lay the foundation for the implied privacy issue. Yet, I can see the point made by those that point to the Bill of Rights, even those that do not read it literally, that their is no implied right to privacy.
ReplyDeleteI am with you too on a small central government and a strong state government. The abuse of the Commerce Clause and Supremacy Clause by the central government has eroded State Rights. As a Minnesotan, I acknowledge that some of the issues facing fellow Minnesotans are not the same as those that live in Florida, Texas, Alaska or Arizona. The trouble is that other states appeal to the federal government to assert their views on others in our country. So, if Arizona wants to pass a law that fights back against illegal immigration then so be it. And if people in California vote to keep marriage between a man and a woman then so be it.
"The abuse of the Commerce Clause and Supremacy Clause by the central government has eroded State Rights."
ReplyDeleteHold the phone. While I can agree that the Commerce clause has been used in more than questionable cases, what abuses of the supremacy clause can you cite? The Supremacy clause is one of the most clear statements in the constitution. It states the following:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
This states, in simple terms, that anything relating to treaties (foreign policy) or anything defined clearly in the constitution is the jurisdiction of the Federal government. You may not like it when federal rights override state, but that's not abuse.
The Arizona law is clearly trampling federal jurisdiction on foreign policy of which, immigration is clearly a part of. We can't have states setting individual immigration policies. What if AZ has no immigration and CA has open borders? This would force AZ to militarize their border with CA to block those immigrants from coming there. This makes us not a nation of states but a conglomeration of nations similar to the EU. That was not what the founding fathers intended.
Truman, if you are going to codify the right to privacy, why do so in a way that reflects current case law precedent? Why not return to the strict constructionist or originalist meaning or understanding that existed when the Constitution was adopted? Who says that the current case law precedent's definition of the right to privacy is the one that should be codified? What about future generations? Should they be forced to go down the road of amending the Constitution each time they believe the right to privacy is different from what had been believed previously?
ReplyDeleteThe reason I don't use a strict constructionist view is that the world has changed. The government, society and technology have progressed. In that time, the government couldn't listen to our phone calls, monitor emails, or anything of that sort. Today, without those rights being codified, we risk an Orwellian scenario.
ReplyDelete"Who says that the current case law precedent's definition of the right to privacy is the one that should be codified?"
I never said it's the best, I simply said it's the easiest to codify into law. I think a healthy debate on the matter would be justified. However, in the end, I think most americans can agree that the general principle of privacy is a right that should be written down so it is better protected given that the SCOTUS can overturn case law precedent.
"Should they be forced to go down the road of amending the Constitution each time they believe the right to privacy is different from what had been believed previously?"
Why not? Slavery was abolished via amendment. Women voting was granted via amendment. The constitution is a living breathing thing, as long as you follow the process for modifying it. Implied rights are dangerous because they're too easily taken away.
And are you presuming that at some point in the future, citizens won't feel that the right to privacy is important?
Truman - The Arizona law does not trample upon the jurisdiction of the Federal government. It actually assists the Federal government by allowing local offices, through routine traffic stops, to hold those suspected of being here illegally and turning them over to ICE. This is not the same as your doomsday CA open borders law.
ReplyDeleteThe current Federal law allows Federal agents only to detain anyone they suspect of being here illegally. The kicker is that the person they detain does not have to do anything illegally first. I don't see how Arizona's law usurps the action of the Federal government; rather it ensure ICE and other agencies are doing their jobs.
That being said, your AZ/CA anecdote does voilate Federal Supremacy Clause as it is the Federal government that established the process and definition of immigration. The Supremacy Clause does not proclude a State from enacting laws that go further or lend additional assistance to the Federal law - or am I missing something?
Private Property rights are already being trampled upon even though we have the right to private property. While I acknowledge that our communication methods have changed dramatically since the adoption of our Constitution, the spirit of privacy has not changed.
ReplyDeleteRight now one cannot do as they wish in the privacy of their home or private business. A prime example is the tavern owner that has been forced to no longer provide a climate for the smoking client. You and I cannot grow, produce or manufacture anything we want on our own private property.
"It actually assists the Federal government by allowing local offices, through routine traffic stops, to hold those suspected of being here illegally and turning them over to ICE."
ReplyDeleteIrregardless of intent, without congressional approval prior, states cannot usurp any authority that is granted solely to the federal government. The AZ state law usurps foreign policy authority by enacting a law addressing immigration which falls under the federal authority without congressional approval. That meets the requirement for breaching the supremacy clause and case law precedent in support of it. Even conservative constitutional scholars agree on this. It will be interesting to see how the SCOTUS rules on it when it gets there.
"I don't see how Arizona's law usurps the action of the Federal government; rather it ensure ICE and other agencies are doing their jobs."
Then you need to go back and read the supporting case law surrounding the supremacy clause. This is settled law, the federal government has sole authority on immigration. They have not granted that authority to AZ, therefore for AZ to pass an immigration law, by definition, means they usurped that authority.
And states cannot pass mandates requiring the federal government to do things. They do not have that authority. Their only recourse for failure of the fed to do their job is through federal court.
"The Supremacy Clause does not proclude (sic) a State from enacting laws that go further or lend additional assistance to the Federal law - or am I missing something?"
You need to read the case law in support of federal jurisdiction then. States cannot enact laws to "lend assistance" in domains that are federal jurisdiction unless congress requests or grants authority to do so. What if New York state wanted to have it's own Army to defend against Canadian aggression? What if Florida wanted a Navy to defend against Cuba? By your logic, they would merely be "lending assistance" to federal authorities and therefore would have the right to build such forces.
That is incorrect interpretation of the law.
To clarify, while there's general agreement that the AZ law breaches current interpretation of the supremacy clause, the reason the SCOTUS decision will be so interesting is that they can overturn that current interpretation if they choose. With the conservative court, it's entirely possible that they could rule to restrict the interpretation of the clause to restrain federal government authority.
ReplyDeleteHowever, while I think this might be a good thing in some regards, the long running repercussions could be staggering. I'd be surprised if they do overturn current precedent.