Thursday, April 10, 2008

Right of Privacy Under Attack

The privacy rights of Washington citizens were endangered today in the Washington Supreme Court’s latest assault on our liberty. Fortunately, only four justices joined this remarkable transfer of power from the state to the federal government; and hopefully in this coming election our voters will prevent it from getting worse.

In today’s decision in McNabb v. Dep't. of Corrections,
[1] the Court was confronted with a mentally ill prisoner’s refusal to eat or take fluids. The Department of Corrections force fed him with a tube they inserted down his nose, and he sued to prevent them from doing it again, and he claimed that shoving a tube down his nose and forcing him to eat violated his right to privacy under the Washington Constitution.

As the saying goes, hard facts make bad law and, while 8 justices agreed with force feeding the prisoner, the lead opinion in this 4-4-1 decision made bad law in Bond's opinion.

The right of privacy in Washington State was explicitly set forth at statehood in 1889. Our Constitution, Article I, Section 7 says: “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

Strict constructionists argue that no similar explicit right of privacy exists under the U.S. Constitution, and it’s true that the word “privacy” is not found in the Constitution. The notion of such a right didn’t even enter the U.S. Supreme Court’s decisions until Justice Brandeis wrote about the “right to be let alone” in a dissent in Olmstead v. United States
[2] in 1928, which was nearly 40 years after it was explicitly adopted in Washington state.

At the federal level, the right of privacy is assured only as long as the unelected federal judiciary that is appointed by the President preserves it; an amendment to the U.S. Constitution seems unlikely.

In many contexts our state courts have wisely observed that our state Constitution’s protections are greater than those provided under the federal Constitution. Rightly so, in the late 1880’s our state’s founders saw the need to preserve personal liberty from government and corporate interests whose power and influence apparently was unchecked by the 100 year old federal Constitution. And in today’s era of growing federal government intrusion into our lives, privacy rights should be at the top of the list of interests to be protected.

But today’s lead opinion authored by Justice Fairhurst would limit our privacy rights under state law to whatever rights exist under federal law. In a remarkable retreat from liberty, she wrote: "we conclude the protection granted under article I, section 7 in this context is coextensive with, but not greater than, the protection granted under the federal constitution."

I can’t say whether a mentally ill prisoner has a right not to be force fed; assisted suicide remains illegal in this state and the state owed him some duty while he was in their custody. Mr. McNabb began his fast in a mental hospital and clearly wanted to die, but his doctors wanted him to live and believed he couldn’t make a rational choice for himself.

Justice Madsen wrote for four Justices who wouldn’t go along with the lead opinion but concurred in the result, and she makes a compelling case that the issue is settled by Washington’s Natural Death Act.[3] And Justice Sanders’ dissent from the whole thing makes a powerful case for erring on the side of personal sovereignty. These were hard facts.

But I can say that restricting the scope of privacy rights under our State Constitution to whatever the U.S. Supreme Court says it should be is dangerous and unwise.

Vote Bond for Justice in the August primary.

[2] 277 U.S. 438 (1928), with apologies to purists for the short citation.
[3] RCW 70.122


sullinsea said...

With all due respect to the candidate, I believe he is wrong in his response to McNabb. Revealingly, for our determination of whether or not to cast our votes in his favor, his response indicates a faulty understanding of the source of rights and the interaction between the federal and state constitutions. We only possess those rights that we were inalienably endowed with by our creator at birth. And no government, state or federal, may legitimately expand or diminish those rights. A constitution merely acknowledges them and establishes limits on government action to secure them. Personally, I challenge those Washington cases holding that "our state Constitution’s protections are greater than those provided under the federal Constitution," and reject the notion that these decisions are in any way "wise." If we agree, from a misplaced parochial hubris, that the political class of our state may create rights over and above those we were created with, we empower them to thereby and simultaneously diminish our rights and those of others. A simple example can be found in the rule in Seattle granting enhanced rights to supporters of certain minority political parties, parties some would view as only quantitatively different, or on the fringe, of the dominant political class, not to have the identities of their contributors made public. This enhanced right to privacy for some simultaneously impinges on the 1st Amendment rights of their political adversaries to know where their financial support is derived from. A more extreme example would occur if the state constitution was found to create a "right" to medical care, housing, or hi-speed internet access. Such a manufactured right necessarily empowers the political class to violate the rights of others to pay for the rights thereby created with confiscatory taxation. The McNabb case involves a mentally ill inmate who, as I understand it, was neither terminally ill nor in a permanent unconscious state. He was effectively attempting suicide by refusing food and water. When and how did suicide become a protected privacy right? Certainly not if one looks to the source of our rights, human morality informed by the Judeo-Christian understanding that our lives are gifts and do not belong to us. This is not a matter of declining medical treatment. It is a matter of taking a life one has no right to take. Is the candidate seriously adopting the position that the state is prohibited from intervening to prevent the taking of a human life because the drafters of our state constitution expanded the right we are endowed with by God and which was acknowledged by the federal constitution – the right to be “let alone?” “Let alone” to kill oneself? Even the rights we do possess may be attenuated during periods of incarceration (e.g., the right to vote). I personally view the candidate's response to McNabb as an indication of a libertarian ideology, and a pretty good example of why libertarianism is wrong - it confuses means with ends. The right to privacy is a means, not an end in and of itself. We are endowed with rights to secure our ability to freely choose the righteous path in accordance with our individual consciences. Reasonable people can and do disagree in many respects about how to walk that path, and no human being can be entrusted with determining it completely for others. However, some parameters of that path are readily ascertainable and beyond debate. I believe suicide is one of those, just as I believe the right to privacy does not apply to exempt abortion from all regulation by the government. McNabb was correctly decided, as Roe was incorrectly decided. The state may intervene to prevent a suicide, just as a state may establish limitation on access to abortion as a matter of public policy. When and how human lives are taken is not a private matter.

Michael J. Bond said...

Thank you, sullinsea, for your thoughtful and powerfully stated comment. But I was troubled by the apparent conflict in these two propositions:

"no human being can be entrusted with determining it completely for others." and yet you say

"The state may intervene to prevent a suicide, just as a state may establish limitation on access to abortion as a matter of public policy."

But I would argue that the state acts only by and through human beings. And if human beings cannot be entrusted with determining it completely for others, then why should or how can we entrust such matters to the state?

I would entrust nothing to the state, except as was carefully and deliberately entrusted to the state in 1889 when our State Constitution was adopted.

R. E. Bodkin said...

I agree with the candidate that strict construction of both Federal and State Constitutions points to upholding the explicitly enumerated right of privacy in the WA State Constitution. ("powers reserved to the states", as well as natural rights inalienably endowed by our Creator)

In no way should that diminish the "natural rights" eloquently argued for by sullinsea.

To take sullinsea's natural rights argument to the extreme would mean that there ought not (and need not) be any Constitution at all, as "natural rights" trump all "Constitutional rights".

Ironically, sullinsea's arguments appear to me to be "libertarian", while Justice candidate Bond's arguments seem based on social compact (Magna Carta, Constitution, etc.) and the "rule of law".

I wish Justice candidate Bond well in his pursuit of making his social compact / strict construction orientation more empowered on the WA Sup Ct.

However, I do agree that prisoner McNabb has no right to commit suicide while in State custody. This loss of this "natural right" (whether a privacy right or not) was surrendered when he became a ward of the State, i.e., a prisoner. If McNabb wants to commit suicide by fasting after he is no longer under State custody or even no longer on parole (with presumably State required medication), then that would seem to fit under the right of privacy provision of the WA State Constitution.

Sullinsea, I agree with your basic moral argument about suicide, but I disagree that the State in general must take "extreme" measures to prevent people from choosing self-inflicted suicide. Each person has the (Divinely bestowed) inherent legal and moral freedom to choose his own morality; and the right of privacy on self-inflicted suicide is significantly qualitatively and quantitatively different than abortion (involving taking another person's life).

Of course, the State legislates morality and making suicide "illegal" is "good" morality, because making suicide illegal promotes the value of life.

Then the issue becomes how far does the State go in enforcing the State's morality on the individual? Should the police come into someone's home and arrest them because they are fasting and might be getting near death? Should anorexics be subject to possible periodic arrests? Not easy questions with "good" people possibly taking reasoned positions on either side. Where does the social compact of the individual's freedom to choose ("privacy") get outweighed by the extant, or even potential, harm to society?

OwlofMinerva said...

Speaking of privacy, do you support a woman's constitutional right to choose abortion? Was Roe v. Wade correctly decided?

Was Lawrence v. Texas, the gay sodomy case that established a right for privacy in intimate consensual relations, correctly decided?

Do you agree with Justice Fairhust's dissent in the same-sex marriage case?