America is described as the leader in equality, observing human rights and ensuring that every citizen is protected by any unfair treatment or their rights are violated both within her borders and abroad. The leadership role was gained due to the Constitution and the different amendments that have taken place to ensure uniform and suitable ways to ensure that the citizens enjoy their rights as documented in the Bill of Rights. The Bill of Rights written down by the founding fathers intended to guarantee freedom of religion, speech, life, and other fundamental rights (“The Constitution of the United States of America.” 2017). The founding fathers were against providing too much power to a single group or person hence the power division between the federal and states governments. The federal government is divided into three branches to enable accountability and ensuring that the government performs its obligations within the stipulations of the Constitution.
The power granted by the constitution to the states is termed as federalism type of governance whereby, each state has the power to formulate its rules and regulations based on the different circumstances. The federal government thus provide the floor as guidelines to the constitutional changes or implementations. The States governance has more connection with the states’ civilians thus they can formulate rules more applicable to the citizens to help aid the growth, and unity within the states (Michael, 2011). The federal government helps enable better relationships between states to allow national progress and sort out issues that may be difficult based on states jurisdiction. The Supreme Court has the mandate to hold the final say when states or federal courts are unable to sort-out certain cases whereby there are different issues based on the different interpretation of the Constitution. The Supreme Court also sets the jurisdiction of federal and states governments as stated in the Constitution. The federal government has the mandate to provide the regulation floor of all the key issues that affect the citizens and the states’ governments implement them by setting the rules with the set floor in mind.
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One of the major issues that have resulted in contentious debates is the right of privacy. The founding fathers, when writing the Constitution, were interested in ensuring equality, and freedom of all citizens but there is no clear guidance on the issue of individual privacy. The failure of a section led to the Privacy Act of 1974 which was set by the Congress to ensure respect for personal privacy. The Privacy Act is faced with huge challenges in determining their extent the time that privacy is overshadowed by essential issues, for instance, security. The aim of this paper is to discuss the effects of federalism on the right of privacy. The paper will thus consider the positive and adverse effects based on real-world events to demonstrate this effects. The next chapter will address civil rights and civil liberties effects on the right of privacy.
The Right of Privacy
As earlier stated, there is no precise indication of the issue of individual privacy, but there are different amendments that have been used over the years to determine the right of privacy. These amendments contributed differently and helped in the formulation of the Privacy Act. The 1st Amendment allows for privacy of beliefs, and the 3 rd Amendment protects the privacy of home and restricts intrusion from the government without consent. The fourth and fifth amendments have been significant as it protects individuals against seizure and searches without warrants that can only be provided where the criminal investigators can only attain the permit by providing beyond any reasonable doubt that the warrant is justifiable (“The Constitution of the United States of America.” 2017). The fifth amendment, on the other hand, protects an individual from providing information that would result in self-incrimination. Lastly, the ninth amendment states that following the enumeration of particular rights as documented in the Bill of Rights cannot deny other rights of the citizens (“The Constitution of the United States of America.” 2017). The contentious issue of privacy has resulted in different justifiable claims over the years which would be due to the different ways and situations that the courts of law have carried out judgments on privacy issues. Cases in the 1920s helped demonstrate that the 14th amendment guarantees a broad right of privacy in regards to marriage, child rearing, and medical treatment termination. These claims were cemented by the Supreme Court’s ruling on Meyer v. Nebraska case of 1923 . The ruling stated that any state laws that prohibit the teaching of German or other foreign languages before the ninth grade were unconstitutional. Since then, there have been many major cases that have shaped the scope of rights of privacy in states and the national levels.
Federalism on the rights of privacy
Federalism help empowers the State and enables diffusion of power within the nation. The healthy state’s government has several advantages apart from limiting tyranny; the states parties brings leadership closer to the people who make it possible for the leaders and the public to integrate with the need of bettering the living standards in the states. The integration enables formulation of laws that directly affect the direct people based on the state’s beliefs and wants. The closeness enhances officers or police departments to highlight the major problems and consult the local leaders on the best way to solve the problems (Michael, 2011). The federal political stability is dependent on the stability of the states’ leadership thus making states the cornerstones of national political stability. These factors as most proponents of federalism argue, makes States governments more competent in promoting and implementing the Bill of Rights better than the federal government.
According to proponents of federalism, the case of Olmstead vs. United States of 1928 , illustrated that the federal criminal branches are willing to violate rights of privacy during collection of evidence. The Supreme Court ruled that the police used crooked means by tapping conversation of the accused in his compound. The accused had earlier been found guilty by the federal courts which had ruled that there was no violation of the 4th amendment. The ruling was discredited by the Supreme Court and indicated the lack of the federal criminal investigators when collecting evidence. This case is compared with Katz vs. the United States of 1967 following the State’s Court ruling that the evidence collection did not violate the fourth amendment on individual privacy. The Supreme Court in its decision defined a search by claiming that the 4th amendment does not protect places but people. It stated that a search would only be against the 4th amendment if the state interferes with an individual’s reasonable spare where the person expects to enjoy the right to privacy. The decision was maintained demonstrating that the State’s law enforcers are more mindful not to violate their rights unlike the federal law enforcers such as the FBI and CIA.
The right of privacy is a broad topic as it involves all elements of human lives and the need respects personal privacy. Federalism is condemned for its role in inhibiting the federal progress in the application of different rules and regulations. The States’ laws are formulated with the immediate societal beliefs playing a key role thus may inhibit different privacies. Cases, for instance, Stanley v. Georgia the states court moral beliefs led to the biased ruling after the accused was found with pornography (Paruchuri, Sen-ching, & Michael, 2009). The Supreme Court ruled that the individual has the right to privacy to have and watch porn even if the pornography could possibly be the basis of trial against the person distributing. The ruling shows that the state should not determine the type of movie or book an individual possesses. The other issues of on federalism and the right of privacy are better described under the civil rights and civil liberties.
Civil Rights on Federalism and right of privacy
The formulation of policies to the only benefit the majority may prevail in most states or national, that does not focus on ensuring equality and protecting the minorities. The 1960s saw the fight civil rights for the minorities with the blacks dominating the civil rights movements and ending the racism and segregation. Federalism at the time took a huge blow as the southern states that had been predominant on slavery before and after the Civil War were against blacks gaining equal rights. The critics of federalism cited these cases as the reason behind avoiding delegation of power to the States on issues regarding Civil rights. According to multiple scholars, the advantages depicted in the previous section provide the reasons of enabling protection of civil rights to their citizens (Lim, 2015).
The right to medication is equal to all and the state of California, and other different states have provided rules that enable provision of medicinal cannabis to the patients. The move enables the minorities suffering from chronic diseases such as cancer to access the drug legally which is not possible as marijuana is illegal according to the federal law. The issue may seem different from a right of privacy, but it is easier when you consider the repercussions of using marijuana in states that have not legalized its use. The patients’ information is also secured to ensure that the victims are not targeted by the national government based on allegations of illegal drug use (Lim, 2015). Other minorities may include the gay community where several states allowed same sex marriages before the federal government allowed it. The issue of increasing minimum payments for the low-wage workers is evidence that states’ government are willing to ensure better living standards for the citizens by promoting higher minimum wages compared to the national minimum wages. The promotion of unions and protection from being fired for joining unions have enabled protection of privacy within the states.
These benefits are diminished by the social issues like the preference of economic factors over the rights of the people. Massachusetts’ statute prohibited distribution of contraceptives to unmarried persons. The Supreme Court stated that all individuals have the right to enjoy the liberties to make various intimate personal decisions without government intrusion. The case was similar to that of Pennsylvania statute that prohibited the distribution of contraceptives to married women. In both these laws, they depicted that states based on religious beliefs and moral issues tend to hinder civil rights to women and hinder their privacy of making personal decisions.
Civil Liberties Influence on Federalism and the Right of Privacy
Civil liberties are fundamental individual rights as stipulated in the Bill of Rights and limitations of the power of the states and national governments’ authority to dictate actions of the people. The first ten amendments are used offer protection of the people from improper government conduct or protect an individual from government violating their rights. Since the 9/11 terrorists’ attacks, the government formulated the Patriotic Act in the bid to allow surveillance of the citizens (Wong, 2006). The issue at the time was seen as the best strategy to limit such a tragedy from ever occurring on American soil.
The monitoring would ensure that the FBI, CIA, and other law enforcement departments would be using digital surveillance on the citizens at all time. The information would be used to ensure to predict future attacks and stop them before being perpetuated. Before its signing by the former President Bush, the Act modified issues, for example, Money Laundering Act, Immigration and Nationality Act, Trap and Trace Statute, Bank Secrecy Act, and the Foreign Intelligence Surveillance Act (Paruchuri, Sen-ching, & Michael, 2009). Since its signing, the Patriotic Act has raised lots of controversies due to its influence in targeting people from particular racial background and religions. The intention of the act was to stop all the main impact citizens might have of either funding terrorist groups, sharing valuable information, and would enable coordination among different criminal and intelligence investigations to allow realization of its primary objective. The Act has since then lost its popularity with more than half of the citizens being offended by the surveillance that violates their rights to privacy.
According to Strossen (2004), former American Civil Liberties Union (ACLU) president, he argued that the proponents of the Patriotic Act claim that life and safety are prerequisites for the citizens to enjoy their liberty. However, Strossen (2004) states that true freedom is a requirement for liking life and safety. He claims that the Patriotic Act fails to realize that America’s strength is based on its democracy which is built on the distinctive system of checks and balances within different government branches. The argument is due to the extreme power provided by to the executive which makes it more prone to the violation of human rights, for instance, right of privacy, religion, and freedom of speech. The technological advancement over the years has resulted in challenges with the past constitutional structures as is evident on the issue of wiretapping and video surveillance (Wong, 2006). The mandate provided to the FBI in their surveillance tend to overlap and violate the first and fourth amendments which make it difficult for states to formulate better regulations and policies on these issues.
The problem of civilian drones’ usage in public governed by the FAA provide the guidelines of civilians using drones, but it does not stipulate the issues like photographing and filming that may violate citizen’s privacy. According to the California law reviews, it is evident that the state wants to inhibit violation of the right of privacy for its citizens. The state faces many issues in determining the best way to do so with thoughts of banning the use of recording or using drones’ surveillance in public places which would be a violation of the first amendment (Kaminski, 2013). The first amendment allows an individual to record matters of public interest and such a move would illustrate the vice being perpetrated by the FBI and other surveillance agencies that violate the public’s privacy. There was a case where a woman was filmed at her bedroom and other cases comprised of filming police officers as they ran their arrests to determine their behaviors. The California States stature wants to ensure that such issues are dealt with efficiently. The aim of the state government is to empower its citizens and protect them from violation of their rights.
The solution to these issues would ensure that property rights are not violated, but the issue of recording police should be encouraged to ensure they do not violate the fourth and fifth amendments. Police brutality has been an issue over the past five years whereby several recordings are available of police officers shooting and killing minorities. The move will ensure that improved security and protecting minority rights (Kaminski, 2013). Federalism according to different scholars lacks the technical knowledge to handle the case of privacy based on surveillance whereby information is gained and shared by the firms in the states without the client’s consent which is a violation of the individual’s privacy. Most states tend to allow companies that provide some of the largest revenues to violate different information privacy which calls for the need of federal government setting up the regulations of the surveillance laws. These claims are dismissed by states like Texas that prohibited civilians from using drones to photograph private people or properties, for instance, their farms without the owner’s consent (Kaminski, 2013).
The regulations have worked so far, but the issue of information collection where several states tend to be more supportive of the Patriotic Act have continuously violated the privacy of individuals leading to unwarranted arrests. Muslims and Arabs citizens are more likely to be surveyed by both the federal and states government compared to citizens from other races and regions which has created division among the people. During the ISIS attacks, several states claimed that they were willing to accept refugees from the affected nations but the refugees were only supposed to be Christians and not Muslims. These remarks are based on the stereotyping beliefs that Muslims are terrorists which have led to the increased surveillance and violation of their privacy.
Lastly, the issue of DNA sample which since 1998 has been directed by the FBI under the DNA Identification Act of 1994. The DNA samples are provided from all the 50 states, but there are disagreements on the criminals whose samples should be taken. The differences in the criminals, type of crimes committed and the age of DNA sample collection tends to inhibit the intention of collecting the DNA samples. The samples have been used to identify criminals during investigations but have also been used to manipulate evidence. These issues also bring controversy on whether the collection of DNA samples violates the right of privacy.
Conclusion
The paper discussed the issue of federalism and the right to privacy while providing the different controversial issues. It is evident that federalism has both positive and negative impacts on rights of privacy, civil liberties and civil rights. Privacy is a human right that is not extensively or demonstrated in the constitution has over the years been the major contentious issue with the Supreme Court offering guidelines on the different definition of the term. The fourth amendment is used in most cases to ensure that prosecution of an accused is not derived from evidence collected illegally or that violated the rights of the defendant as granted in the 4th amendment. The issue of proving privacy violation is based on showing that the individual expected some level of privacy but is not applicable if the person was in a public place as the extent of privacy is very low.
The overlapping issues tend to make states seem better handles of investigations regarding ensuring the privacy of the public due to the overzealous mode of the investigation undertaken by the federal government. The changes in the desire with the new federalism which is opposed to the deteriorating norms of the 1960s make federalism promote civil rights. The issue of surveillance is depicted as a regulation that requires more debate and control in both federal and states levels with the many contentious issues affecting privacy being documented due to the unregulated surveillance. In conclusion, it is clear that the federalism is beneficial in enabling rights of privacy but with the limiting factors, some issues need better judgment and study before regulating them for instance, the issue of Surveillance.
References
Kaminski, E., (2013). Drone Federalism: Civilian Drones and the Things They Carry. The Circuit . Paper 8. Retrieved July 24, 2017 from, http://scholarship.law.berkeley.edu/clrcircuit/8
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