Every move you make
And every vow you break
Every smile you fake
Every claim you stake
I’ll be watching you.
— “Every Breath You Take,” Song by The Police
Today, this is the most violated of personal rights; not by judges signing search warrants for surveillance, but by government officials — local, state and federal — ignoring and evading the natural right to privacy and pretending that the Fourth Amendment does not apply to them.
Every move you make
And every vow you break
Every smile you fake
Every claim you stake
I’ll be watching you.
— “Every Breath You Take,” Song by The Police
The Fourth Amendment to the U.S. Constitution guarantees the right to privacy. Like other amendments in the Bill of Rights, it doesn’t create the right; it limits government interference with it. Last week, President Joe Biden misquoted the late Justice Antonin Scalia suggesting that Justice Scalia believed that the Bill of Rights creates rights. As Justice Scalia wrote, referring to the right to keep and bear arms but reflecting his view on the origins of all personal liberty, the Bill of Rights secures rights, it doesn’t create them; it secures them from the government.
Those who drafted the Bill of Rights recognized that human rights are pre-political. They precede the existence of the government. They come from our humanity, and, in the case of privacy, they are reinforced by our ownership or legal occupancy of property.
The idea that rights come from our humanity is called Natural Law theory, which was first articulated by Aristotle in 360 B.C. The natural law teaches that there are aspects of human existence and thus areas of human behavior that are not subject to the government. Aristotle’s views would later be refined by Cicero, codified by Aquinas, explained by John Locke, and woven into Anglo-American jurisprudence by British jurists and American revolutionaries and constitutional framers.
Thus, our rights to think as we wish, to say what we think, to publish what we say, to worship or not, to associate or not, to defend ourselves from crazies and tyrants, to own property, and to be left alone are all hard-wired into our human natures by God, the uncaused cause. Nature is the means through which God passes along His gifts to us. We come about by a biological act of nature, every step of which was ordained by God. His greatest gift to us is life, and He tied that gift to free will. Just as He is perfectly free, so are we.
In exercising our free wills, we employ rights. Rights are claims against the whole world. They don’t require approval of a government or neighbors or colleagues. The same rights exist in everyone no matter their place of birth, and each person exercises them as she or he sees fit. The government should only come into the picture when someone violates another’s natural rights. So, if someone builds a house in your backyard, you can knock it down and expel the builders or you can ask the government to do so.
Suppose the builders haven’t consented to the existence of the government? That does not absolve them. Though government is only moral and legal in a society in which all persons have consented to it — this is Thomas Jefferson’s “consent of the governed” argument in the Declaration of Independence — the only exception to actual consent is the use of government to remedy a violation of natural rights.
Professor Murray Rothbard examined all this under his non-aggression principle (NAP): Initiating or threatening force or deception against a person or his rights is always morally illicit. This applies to all aggression, even — and especially — from the government. The folks building a house in your backyard have either used force or deception to get there. Both violate your natural rights and the NAP.
Now, back to the Fourth Amendment and privacy. In a famous dissent in 1928, which two generations later became the law of the land, the late Justice Louis Brandeis argued that government surveillance constitutes a search under the Fourth Amendment and thus, per the express language of the amendment, cannot be conducted by the government without a warrant issued by a judge. He famously called privacy the right most valued by civilized persons and described it as “the right to be let alone.”
Today, this is the most violated of personal rights; not by judges signing search warrants for surveillance, but by government officials — local, state and federal — ignoring and evading the natural right to privacy and pretending that the Fourth Amendment does not apply to them.
Be seeing you
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