Privacy is overrated

by Richard A. Posner

New York Daily News
April 28, 2013

This past Monday, Mayor Bloomberg said that in the wake of the Boston Marathon bombings, the country’s interpretation of the Constitution “will have to change” in order to enable more effective prevention of and response to terrorist attacks and other violence, such as attacks on schoolchildren.

In particular, he wants a more welcoming attitude toward surveillance cameras, which played a crucial role in the apprehension of the Boston Marathon bombers — and would have been crucial had Tamerlan and Dzhokhar Tsarnaev come to New York to detonate a bomb in Times Square, as they apparently planned to. (Bloomberg has also announced a “Domain Awareness System” that will consolidate and distribute information received by the cameras and other tracking devices.)

All of which is to say that he wants concerns with privacy to take second place to concerns with security.

I strongly agree, though I’m not sure that the Constitution will have to be reinterpreted in order to enable the shift of emphasis that he (and I) favor. Neither the word “privacy” nor even the concept appears anywhere in the Constitution, and the current Supreme Court is highly sensitive, as it should be, to security needs. The Court can and doubtless will adjust the balance between privacy and security to reflect the increase in long-run threats to the lives of Americans.

There is a tendency to exaggerate the social value of privacy. I value my privacy as much as the next person, but there is a difference between what is valuable to an individual and what is valuable to society. Thirty-five years ago, when I was a law professor rather than a judge, I published an article called “The Right of Privacy,” in which I pointed out that “privacy” is really just a euphemism for concealment, for hiding specific things about ourselves from others.

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Dear Justice Kennedy

by Nicholas Stephanopoulos

Slate
April 1, 2013

One of the few persuasive points that opponents of same-sex marriage made in last week’s Supreme Court arguments was that gay couples should rely on the political process—not the courts. In the argument over California’s same-sex marriage ban, passed by voters in 2008, Justice Samuel Alito asked, “Why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?” The next day, in the argument over the Defense of Marriage Act, enacted by Congress in 1996, Chief Justice John Roberts added a twist to the popular sovereignty point. “The lobby supporting the enactment of same-sex marriage laws in different states is politically powerful,” he said, adding that “as far as I can tell, political figures are falling over themselves to endorse your side of the cause.”

Although it’s superficially appealing, the argument for judicial deference is wrong. The ability of gay rights groups to win ordinary political battles is actually quite limited. Much more common than the imposition of pro-gay policies on a disapproving majority is the reverse scenario: the failure to enact such policies even when they’re supported by a popular majority. Judicial intervention may therefore be necessary because, regrettably, this is not an area in which the political process can be trusted.

In pioneering recent work, Columbia political scientists Jeffrey Lax and Justin Phillips have found that politicians exhibit a sharp conservative bias on gay rights issues. That is they do not become at least 50 percent likely to vote in a pro-gay direction until their constituents’ support for doing so is substantially higher than 50 percent. In the 2010 vote on repealing the military’s “don’t ask, don’t tell” policy, for example, House members became 50 percent likely to vote yes only when 60 percent of their constituents supported repeal. In the 2007 vote on the Employment Non-Discrimination Act, which would have banned anti-gay discrimination by employers, House members were more likely to vote yes only when 70 percent of their constituents favored the bill.

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