When I was in law school, I went to a luncheon at which famed legal scholar Arthur Miller spoke. His topic, still a fresh one back in the mid-1980s, was the amount of private information floating around in computers. His target was American corporations. He felt that American corporations were collecting too much consumer data, and destroying the consumers' right to privacy.
I didn't agree with Miller -- or, at least, I didn't feel his paranoia. It was certainly true then, and it's more true now, that corporations track an enormous amount of consumer data. The fact is, though, we don't have to give corporations that data. We do so for our convenience. If I don't want a credit card company to track my spending habits, I can pay cash. If I don't want Safeway to track my product purchases, I don't have to have a membership number. I like the convenience of credit cards and I like the discounts that go with grocery store membership cards, but I can quit playing the game at any time to preserve my privacy.
The stakes are different, though, when the government is involved. When it's the government demanding your information, you have no leeway to say "no!"
I first became aware of this problem in connection with jury questionnaires. I've never been a juror, but I've certainly prepared such questionnaires and I've reviewed those prepared by other council. If you've been on the receiving end of such a questionnaire, it's a true horror. In theory, their purpose is to ask questions closely tailored to the case, so as to screen out true bias. For example, in a murder case, the questionnaire could logically ask whether anyone in the juror's family has been murdered or whether anyone in the family was convicted for murder. A positive answer to either question could hint at a bone-deep bias that might interview with a juror's duty to review the facts impartially.
The problem, though, is that jury questionnaires don't stop there. Each lawyer, fancying himself an amateur psychologist, includes dozens of questions aimed at determining just who you are. The questionnaires ask about your upbringing, your education, your lifestyle, your hobbies, your interests, your religious beliefs, your political beliefs, and on and on.
Nor do you have the choice, as you do in a commercial transaction, to say no to answering these questions. If the questionnaire is in front of you, it means that the judge has already put his imprimatur on the questionnaire. You are required to answer the questions or risk being in contempt of court. In a "heads I win, tails you lose" formulation, there's no benefit to you in answering the questions, but you can go to jail if you refuse to do so. (Although to be honest, I haven't heard of jurors being jailed for contempt. Either, sheep-like, they all answer those intrusive questions or, if a few object, the judge hears the matter in camera and just makes it go away.)
Jury questionnaires are a rather narrow, arcane example of governments demanding that people give them private information. Under the Obama administration, however, two much more serious issues are arising that place the government in a position in which it is demanding deeply private information, and in which the punishment for withholding that information can be severe.
The first situation is Obama's health care plan. We know that, not only will it be unbelievably expensive, it will also destroy private medicine for all but the wealthiest. Because the government will be the largest pot of money, that's where the care will go. And once it's in charge of health care for all Americans, the government will also be in charge of health data for all Americans. It will know if you're sick or well, if you have an "embarrassing" illness, if you're fertile or infertile, if you're vain, if you're stoic or weak, and anything else that used to be between you and your doctor, or between you and the insurance provider of your choice.
Under ObamaCare, you name it an area of physical or mental privacy, and the government will have huge databases with that information. And you can't opt out because there's nowhere else to go. The marketplace is gone. Your choices are bad and worse: Either be treated and give up your privacy, or give up treatment entirely.
Some are already voicing concerns that socialized medicine, aside from being an insanely bad idea in terms of purveying medical care, is also a deeply unconstitutional idea:
Obviously, the government does not have to pay for any and all services individual citizens may desire. And simply refusing to approve a procedure or treatment under applicable reimbursement rules, as under the government-run Medicare and Medicaid, does not make the system unconstitutional. But if over time, as many critics fear, a "public option" health insurance plan turns into what amounts to a single-payer system, the constitutional issues regarding treatment and reimbursement decisions will be manifold.
The same will be true of a quasi-private system where the government claims a large role in defining acceptable health-insurance coverage and treatments. There will be all sorts of "undue burdens" on the rights of patients to receive the care they may want. Then the litigation will begin.
Anyone who imagines that Congress can simply avoid the constitutional issues -- and lawsuits -- by withdrawing federal court jurisdiction over the new health system must think again. A brief review of the Supreme Court's recent war-on-terror decisions, brought by or on behalf of detained enemy combatants, will disabuse that notion. This area of governmental authority was once nearly immune from judicial intervention. Over the past five years, however, the Supreme Court (supposedly the nonpolitical branch) has unapologetically transformed itself into a full-fledged, policy-making partner with the president and Congress.
In other words, socialized medicine isn't just economically and practically foolish, it's truly un-American.
The other area in which privacy is an issue is the upcoming 2010 Census. The Census, as you know, is a Constitutional mandate and, in its original form, it's incredibly pure. All that the federal government is entitled to under the Constitution is numbers, and those numbers are necessary for only two reasons -- taxes and proportionate representation in the House of Representatives:
Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.
The United States Census Bureau, an historically non-partisan office, has long been charged with the responsibility for collecting census data. Typical for bureaucracies, the census has expanded and expanded until it bears no relationship to the original enumeration that the Constitution demands. Now, as the Census Bureau itself states, the myriad questions Americans must answer go far beyond the Constitutional purpose and are, instead, legislatively mandated in order to figure out to manage myriad federal programs.
In other words, in exchange for all Americans handing over their personal information to the federal government, some Americans will get a federal benefit. Please note how different this is from the marketplace situation in which a consumer willingly hands information out for a direct benefit to that consumer. With the government, consumers are forced to hand out information with no promise of any benefit at all.
The U.S. Census is supposed to be free of politics, but one group with a history of voter fraud, ACORN, is participating in next year's count, raising concerns about the politicization of the decennial survey.
The Association of Community Organizations for Reform Now signed on as a national partner with the U.S. Census Bureau in February 2009 to assist with the recruitment of the 1.4 million temporary workers needed to go door-to-door to count every person in the United States -- currently believed to be more than 306 million people.
A U.S. Census "sell sheet," an advertisement used to recruit national partners, says partnerships with groups like ACORN "play an important role in making the 2010 Census successful," including by "help[ing] recruit census workers."
The bureau is currently employing help from more than 250 national partners, including TARGET and the National Association for the Advancement of Colored People (NAACP), to assist in the hiring effort.
But ACORN's partnership with the 2010 Census is worrisome to lawmakers who say past allegations of fraud should raise concerns about the organization.
"It's a concern, especially when you look at all the different charges of voter fraud. And it's not just the lawmakers' concern. It should be the concern of every citizen in the country," Rep. Lynn A. Westmoreland, R-Ga., vice ranking member of the subcommittee for the U.S. Census, told FOXNews.com. "We want an enumeration. We don't want to have any false numbers."
As you can see from the above article, the big concern about ACORN's involvement is fraud: Are ACORN operatives going to fake numbers that are helpful to the Church of Perpetual Obamatude? Will Republicans mysteriously vanish from the voter roles, while Democrats multiply exponentially? Will political fringe groups suddenly grow in number and power?
Representative Michele Bachmann has raised another concern, though, and that's one that ties in with the privacy issue in this post: Will ACORN's involvement mean that the information we hand over to the government (with no direct benefit to ourselves) falls into the hands of strangers who will use it for their own purposes?
Outspoken Republican Rep. Michele Bachmann says she's so worried that information from next year's national census will be abused that she will refuse to fill out anything more than the number of people in her household.
In an interview Wednesday morning with The Washington Times "America's Morning News," Mrs. Bachmann, Minnesota Republican, said the questions have become "very intricate, very personal" and she also fears ACORN, the community organizing group that came under fire for its voter registration efforts last year, will be part of the Census Bureau's door-to-door information collection efforts.
Having voiced her concerns, Bachmann has also drawn a Constitutional line in the sand:
"I know for my family the only question we will be answering is how many people are in our home," she said. "We won't be answering any information beyond that, because the Constitution doesn't require any information beyond that."
The U.S. Census Bureau, jealous of its turf, is warning of reprisals:
She [a Census Bureau representative] sent a portion of the U.S. legal code that says anyone over 18 years of age who refuses to answer "any of the questions" on the census can be fined up to $5,000.
So, if you're still with me, here's what we've got: The Founding Fathers mandated an enumerative census (meaning it's sole purpose is to count heads) in order to ensure proper taxes and representation among the several states. Over the years, and especially since the New Deal, Congress has expanded the federal government at a rate the Founders could never have imagined. To sustain that expansion, not only does Congress need numbers for taxes and representation, it also needs detailed personal information in order to fund favored groups. Handing over this information does not benefit most Americans and, with ACORN involved, can seriously harm them. It also likely violates Americans' constitutional right to privacy. Nevertheless, the government position currently is that, if Americans don't hand over this information, they can be fined significant sums of money.
All of which boils down to this question: Is Bachmann right that, while the Legislature may ask myriad personal questions, the nexus of the constitutional right to privacy and the extremely limited government right to a census means that Americans cannot be forced to provide more than numerical information? I'd like to think Bachmann is correct, but with the Supreme Court swiftly on the road to becoming just another wing of the Democratic White House, I wouldn't bet my $5,000 on that answer.