[lemonlime]

>Just because one has a right to privacy, it doesn't follow that everything done in private is legal.

No one, anywhere, has ever argued that the right to privacy means everything done in private is legal. That is not even remotely close to what the debate is about.

You have constructed an impressively bad strawman.

[ltbarcly3]

Right, so some things done in private are prohibited, and others are not prohibited. So a right to privacy does not inform us whatsoever as to whether it is prohibited or not prohibited to do a thing.

In all other contexts I know of, the 4th amendment does not grant anyone rights to do things that would otherwise be illegal. It sets careful restrictions on the governments ability to investigate. In other words, the government is prohibited from doing things we consider to be a burden upon people whom the government lacks sufficient reason to suspect. However, given a sufficient reason to suspect them of a crime the government can then fulfill due process and continue in it's investigations of those suspected crimes.

So lets by very precise here. Lets take some action a person might engage in, lets call it 'throwing strings', which is just made up nonsense. To be informative here, we will say that the constitution does not have anything to say regarding throwing strings, and that state or local governments can outlaw it as they see fit. However, in the existence of a right to privacy the act of throwing strings becomes a right under the constitution.

How can a right to unreasonable search and seizure (or however other way privacy is derived) possibly create a right to openly and notoriously throw strings?

[ltbarcly3]

So I'm in a meeting and I've reloaded this comment a few times, and I see the moderation going up and down? If you down-vote this, please hit respond and let me know why, this is a good faith comment in the spirit of this thread trying to understand the issue better, or ideally have an expert in the law reply? I don't know why someone would down-vote it apart from seeing it as threatening to even be open to trying to discuss this issue?

[astrange]

Hmm, but that’s quite similar to the current reason abortion is legal, and it’s one of the (correct) reasons sodomy is not a crime anymore.

I think there’s a good argument that abortion should be allowed under the 13th amendment but that seems like someone would yell at me if I said that.

[lemonlime]

No, it is not. Lawrence v. Texas was accepted by SCOTUS for privacy purposes only to examine this extremely narrow question:

“2. Whether Petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?"

To spell it out: "adult consensual sexual activity" is not even remotely close to "everything".

You're also wrong on abortion. Directly from Roe v. Wade:

"The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past."

"We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation."

Can you tell me where you got the idea that "it's quite similar to the current reason abortion is legal"?

None of these are arguing everything done in private should be legal. Even the most extreme argument (not accepted by SCOTUS) is that things you do to your own body are protected.

But if you do something (say, fraud), in private, no one is arguing you should have a right to privacy.

[SilasX]

Could you help me understand how the purported strawman diverges from the actual legal argumentation? It sounds like the article is making the case that this equivocation is eerily close to the actual jurisprudential reason.

[lemonlime]

Sure. Have you read Roe v. Wade. Where do you get the idea that it's eerily close? Can you quote the specific words from that decision?

Here are some that are at odds with what you are saying:

"The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past."

"We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation."

[SilasX]

That doesn’t help. It just asserts that “oh no, it’s obviously not unlimited” but not how or why, in line with the core arguments used.

Did you read the article? Its whole point is that Roe is a dubious application of privacy, even if you support the ruling’s conclusion.

I assumed from your confident tone, and insistence that the parent comment was a strawman, that you would be able to shed more light on this topic. At least, that’s where I would be if I used that tone.

[lemonlime]

Their reasoning in Roe is pretty detailed and they do not come anywhere close to saying that the right to privacy legalizes everything done in private. Have you read Roe v Wade?

Let's look at fraud. Who do you think is arguing that fraud is illegal if done in private. Can you link me to any example anywhere on any medium?

Which part of the article do you think is relevant here? I have read many books by actual constitutional law scholars on these cases. I don't understand what you think I'm supposed to see in a 1,000 word blog post by a random non lawyer that doesn't know anything in particular about constitutional law.

>I assumed from your confident tone, and insistence that the parent comment was a strawman, that you would be able to shed more light on this topic.

I'm not just insisting it's a strawman. It is a straw man. Can you link me to any argument made by anyone ever on any medium that is even remotely close to what he is saying? (that everything done in private, say, fraud, murder, arson, etc.) should be legal?

[car_analogy]

> I'm not just insisting it's a strawman. It is a straw man.

It wasn't a strawman (I do not claim anyone argued everything in private is legal), it was reductio as absurdum - taking the privacy argument to its logical limit. If a right to privacy makes abortion legal because it is private, why does this apply only to abortion? Actually, only to a subset of abortion, since "this right is not unqualified and must be considered against important state interests in regulation".

You quoted the court saying this is "not unlimited" and about "personal privacy" (distinguished from 'general' privacy?). How does any of this follow from "security against unreasonable search"? Or do I misunderstand, and they derived this right from some other amendment or combination of amendments?

The reasoning, so far as I understand it, is tortured at best, so I'd be grateful if you could clarify the court's logic for me.

[robonerd]

> Or do I misunderstand, and they derived this right from some other amendment or combination of amendments?

Yes, they derived it from the 14th Amendment's Due Process clause.