That Expectation of Privacy

We’re Americans and we have that expectation of privacy – no one can read your mail, or email, or tap your phone or obtain a list of your incoming and outgoing calls, or compile a list of what books you check out at the library, or these days, get a record of the searches you’ve done on the web. The government, local or state or national, needs a search warrant for that – they have to convince a bored judge that there’s a reasonable suspicion something criminal is going on, or that there’s a threat to public safety. Of course since the Patriot Act that’s all kind of a joke. Congress decided that all those provisions in the Fourth Amendment regarding illegal search and seizure could get us killed these days – nasty terrorists could hide behind the Constitution, you see. We need to catch them and lock them up before they blow something up. They said this might seem unfortunate, but we have to be proactive, and anyway, if you have nothing to hide there’s no reason you should make a fuss. The Constitution is not a suicide pact after all.

You heard that a lot. But what the hell – everyone is posting personal drivel on Facebook all the time, for the world to see, and decades ago corporations starting selling each other customer lists and sales records, so there are data warehouses filled with thousands of terabytes of such data and the data-mining algorithms get better all the time. These guys know exactly what each of us is likely to buy next, if they nudge us the right way. They call it targeted marketing. You get just the right coupons in the mail, or instantaneously at the register.

Face it. Your life is an open book. Any worried father can Google his daughter’s new boyfriend – and you probably didn’t get that new job you wanted because the Human Resources department there did the same. The whole notion of privacy is a bit of a joke. We ceded much of it away in fear after the guys with the box-cutters did their thing on that sunny September morning long ago, and we willingly gave the rest away – because it was kind of fun. See New Strategy in the War on Terror: Trolling Jihadi Forums and Shocker: We Are All Stalking Our Exes on Facebook Like Creeps – the good and the bad.

Still, as they say, a man’s home is his castle, as is his car, or maybe just the trunk, or maybe not. Searches are permitted under exigent circumstances. It’s just that what’s exigent can mean anything. And maybe you had no expectation of privacy anyway – you were in a public place.

What isn’t a public place these days? Of course there is this:

A Castle Doctrine (also known as a Castle Law or a Defense of Habitation Law) is an American legal doctrine that designates a person’s abode (or, in some states, any place legally occupied, such as a car or place of work) as a place in which the person has certain protections and immunities and may in certain circumstances use force, up to and including deadly force, to defend against an intruder without becoming liable to prosecution. Typically deadly force is considered justified, and a defense of justifiable homicide applicable, in cases “when the actor reasonably fears imminent peril of death or serious bodily harm to himself or another.” The doctrine is not a defined law that can be invoked, but a set of principles which is incorporated in some form in the law of most states.

The term derives from the historic English common law dictum that “an Englishman’s home is his castle”. This concept was established as English law by 17th century jurist Sir Edward Coke, in his The Institutes of the Laws of England, 1628. The dictum was carried by colonists to the New World, who later removed “English” from the phrase, making it “a man’s home is his castle”, which thereby became simply the Castle Doctrine.

This explains all those Stand Your Ground laws, but this has always been a commonsense notion. You are the law in your own home, the king of your castle so to speak – the government can’t bust in and tell you what to do, with certain exceptions. You can’t shoot your kids if they don’t eat their vegetables and so on.

But here we get in trouble, because everyone has an opinion on those exceptions. There was Griswold v. Connecticut, 381 U.S. 479 (1965) – the Supreme Court held that even though there was no such thing in the Constitution, explicitly, in so many words, there really was an expected “right to privacy.” You didn’t see those words? It’s one of those penumbra things – the Connecticut State Police could not bust into your bedroom and arrest you for possession of birth-control pills or condoms. It wasn’t their business. That shouldn’t be the government’s business. It’s implied in the Constitution.

No one complained. That made sense, but that led to Roe v. Wade, 410 U.S. 113 (1973) – a woman’s decision to seek an abortion was her business, in the first trimester, when the viability of the fetus wasn’t an issue. That was a private and personal matter, while after the first trimester there was another life to consider. That decision was based on Griswold, as precedent. In this case the woman’s body was her castle, if you want to view it that way.

And now that’s the law – except that these days we have everyone on the right trying to pass all those Personhood laws, legally fixing viability at conception, or even sexual intention. No one is arguing about privacy – except for Rick Santorum, who rants that Griswold was decided wrongly way back in the sixties. He beleives that the government certainly should police citizens’ sexual behavior, as folks do the oddest things that just aren’t right, as God says. Of course Lawrence v. Texas, 539 U.S. 558 (2003) must drive him crazy, where the now very conservative Supreme Court ruled that the Texas State Police could not bust into a bedroom and arrest two homosexuals engaged in, or thinking about, consensual sexual conduct. The laws that criminalized sodomy between consenting adults acting in private, whatever the sex of the participants, were stupid. That shouldn’t be the government’s business either.

No wonder Santorum thought Griswold was a disaster. He knows the law, even if Mitt Romney doesn’t:

“Has the Supreme Court decided that the states do not have the right to ban contraception?” asked Romney.

“Yes, they have,” replied [debate moderator George] Stephanopoulos, “1965, Griswold v Connecticut.”

Romney seemed frustrated. He lectured Stephanopoulos about how Americans have the right to amend the Constitution, and that he favors amending it to ban same-sex marriage. “But I know of no reason to talk about contraception. Contraception. It’s working just fine, just leave it alone.”

As the audience laughed, Stephanopoulos persisted like a dog with a bone: “Do you believe the Supreme Court should overturn it or not?”

“Do I believe the Supreme Court should overturn Roe v Wade?” Romney said. “Yes, I do.”

That wasn’t the question and both Romney and Obama went to Harvard Law School. One of them didn’t do so well. Rick Santorum saw the real problem – how we legally define privacy. And George Stephanopoulos is no slouch either.

Still, Romney is a careful man. It’s best that you not know the details of things, as then people can nail you down and you’ll have no end of trouble explaining yourself. And he, not Santorum, did win the nomination. It’s not a bad strategy – unless people figure out you really don’t know jack shit about anything and turn on you.

And now we have the issue of his personal privacy. He doesn’t want to release more than one year of his tax returns, even if were he to release his full tax returns, perhaps twelve years of them like his father did when his father was running for president, that might clear up all sorts of things – just where he made his money, when, and where he stashed his scads of money and why. He says he was a brilliant businessman and that makes him just the right guy to run the country. Was he really? Let’s see. Let’s see how he did that. You’d think he’d be proud of what’s there – but he won’t release those returns. It’s almost as if he’s saying that no one really needs to know the details – just trust him. Or he’s saying that a man’s tax returns are also his castle – that it’s a private matter.

This raises the issue of what is a private matter for someone running for office. We do like to judge a candidate’s character – there’s not much to go on when they’re being so careful about not getting pinned down to any positions they’ll regret later. And he is running on character, almost exclusively – he knows business, unlike the other guy, and he loves America, unlike the other guy. That’s about it – but folks naturally want to know what the hell he’s talking about, and as far as the brilliant businessman thing goes, they’d like evidence.

We’re not going to get that evidence:

Ann Romney dismissed concerns about her husband’s tax returns Thursday, contending that the two of them have “given all you people need to know.”

“You know, you should really look at where Mitt has led his life, and where he’s been financially,” the potential first lady said on ABC’s “Good Morning America.” “He’s a very generous person. We give 10 percent of our income to our church every year. Do you think that is the kind of person who is trying to hide things, or do things? No. He is so good about it. Then, when he was governor of Massachusetts, didn’t take a salary for four years.”

“We’ve given all you people need to know and understand about our financial situation and how we live our life,” she added later.

Salon’s Joan Walsh reacts to what she calls Ann Romney’s Marie Antoinette remark:

Now, it may be okay, in some circles, to call the media “you people,” which is what Romney would probably argue she was doing. But in fact, she’s talking to American voters, a majority of whom (including a third of Republicans) want the Romneys share more tax returns, according to a USAToday poll released Thursday. The poll didn’t ask whether voters would like more information generally about how the Romneys “live our life” – but that seems if anything an even more arrogant and elitist reaction from Romney.

Ann Romney just wants to define just what is public and what is private, but Walsh argues she doesn’t get to decide that, and the folks on the right have always had this problem about what the rabble gets to know:

Ann Romney’s comment about “you people” is particularly fascinating to me because I can’t get over the way the contemporary right has taken insults they once reserved for African-Americans and applied them to a much broader swath of the country, including white folks, who happen to make up 90 percent of their base. The obvious example I’ve written about before is Charles Murray’s “Coming Apart: The State of White America, 1960-2010,” which blames the hard times suffered by the white working class on its own laziness, aversion to marriage, and fondness for the dole – the same personal traits he blamed for African-American poverty in the 1980s.

Ann Romney is too well-bred to call African-Americans “you people” in public, of course, especially after what happened to Ross Perot. But she obviously has no problem referring to other folks she holds in contempt that way. Of course Romney has displayed contempt for certain African-Americans – like when she and her husband told the Obamas to “start packing,” because in Ann’s words, “It’s Mitt’s time – it’s our turn now” to live in the White House. As if the Obamas were troublesome tenants who’d overstayed their welcome in the home that rightly belongs to the Romneys.

There’s that, and something more:

Politico and other mainstream media Romney defenders think some of us are being unfair focusing on the Romneys’ wealth and “the way we live our lives,” in Ann’s snippy terms. They think it’s mean to talk about Romney’s dressage habit, which involves a really expensive horse now headed to the Olympics, whose care and feeding allowed the Romneys to take a $77,000 tax deduction. That’s almost twice the median wage in this country.

But in a time of unprecedented income inequality, the Romneys’ wealth, tax history, lifestyle and values are absolutely fair game. And so is Ann Romney’s barely repressed elitism.

We’re all “you people” to the Romneys. It’s good to know.

It seems that when you run on character, everything is fair game. There is no castle. And Alex Pareene adds this:

Whoa, there, Ann. When you’re being painted as a living embodiment of out-of-touch plutocratic wealth, maybe avoid the construction “you people.” Even if you just mean it to refer to “the press,” which it seems like you probably did.

And he adds this:

People have some theories about what is so bad in Romney’s tax returns. Some people think he might not have paid any taxes at all one year, which Romney’s campaign denies. (But how do we know?) Matt Yglesias, who points out that the guy already ran for president once so you’d think he’d have cleaned his tax situation up a bit, says maybe there’s something in the very recent past that Mitt doesn’t want exposed (like his disclosing his secret Swiss bank account to the IRS to avoid criminal prosecution in 2009).

There are a bunch of other reasons, too, and all of them can be summarized as “he won’t release them because they will confirm what we already basically know about Romney’s wealth and business practices.”

But that’s private matter, or it really is fair game. Digby offers notes on how the lower classes have the right to contemplate the splendor of the higher classes and to be inspired by it – she cites a lot of amazing writing like that, sarcastically.

Ed Kilgore adds this:

We have no way of knowing just yet whether Ann Romney’s explanation in an interview of her husband’s refusal to release tax returns was just her own effort to get past a difficult question, or represents the Final Word from the campaign. If it’s the latter, you gotta admit it’s pretty damn bold, suggesting that Mitt’s finances – not just his tax returns, but his wealth generally – are a private family matter on which the news media and the American people are strictly on a need-to-know basis. And all they need to know is that the Romneys tithe (and no tither has ever, ever been dishonest about money, right?) and that Mitt turned down a governor’s salary in Massachusetts that probably represented a rounding error in his investment income.

He’s not buying it:

This talking-point would barely pass the smell-test even if Mitt had always resolutely treated his “success” (as measured by his fabulous wealth) as irrelevant to the presidential campaign, instead of being the primary reason Americans should entrust him with the presidency, even if he won’t much talk about what he would do in that office beyond killing ObamaCare and inspiring confidence in every direction.

You have to wonder if in future Mitt is going to “outsource” all questions about his finances to his wife, and then object that anyone who complains about it is engaging in personal attacks on his family. That tactic would certainly be consistent with his general habit of expressing outrage when critics look at his biography or his tax-and-budget plans and suggest things just don’t add up.

Ah, he is a careful man – unless people figure out that he really doesn’t know jack shit about anything and turn on him. Maybe he can wait them out. It worked in the primaries after all, where he never won big, but won small often enough. It’s a plan.

Steve M at No More Mister Nice Blog thinks it’s a pretty good plan:

We liberals want to hear this as Ann Romney looking down her nose at us, the peasants. A typical TV viewer would hear it as Ann Romney slapping down a TV reporter. That’s not going to hurt her or her husband.

And the rest of the line – the church donations and not taking a salary as governor – is just the sort of thing that appeals to a lot of people. Not you. Not me. But a lot of people.

If you’re predisposed to find the Romneys highfalutin and arrogant – hell, I sure am – this is obnoxious. But if you’re on the fence, it’s not going to tip you into the hater camp.

Sorry, but I looked at too many poll numbers this morning, and they’re showing me that a significant chunk of America thinks that Mitt Romney is a decent fellow and his career would be pretty good preparation for the presidency. I’d love to live in a country where there were fewer people like that. But this is the country I – we – live in.

So be it, but Andrew Sullivan finds all this ludicrous:

We shouldn’t ask for more information because Mitt Romney is self-evidently beyond any moral reproach? Why are we all not simply smitten with his pure holiness?

The sheer sense of entitlement of some in the 0.1 percent is pretty gobsmacking at times. I go with the Reagan doctrine: Trust but Verify.

That’s the problem isn’t it? There’s no way to verify. But then, what do we have the right to know? What’s private and what’s public, and what do you do when you’re asked to admire something but not to ask any questions about it, because you have no right to know? Do you still admire it? Why? Many people admired John Edwards. It wasn’t just the good hair. And then…

Still this might not be arrogance. It may be that Mitt and Ann just don’t understand the post-Griswold post-9/11 Facebook and data-mining world. Not much of anything is private now, and what has been fenced off is under constant attack. Those two really should join the rest of us.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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One Response to That Expectation of Privacy

  1. Lawrence King says:

    Good column! I have a coherent explanation for BOTH Reid and Romney: this has nothing to do with taxes and everything to do with tithing. Harry Reid, who I admire btw, is the most successful LDS member in American history…and he is proud of that fact; His position just may be usurped. I have been to Searchlight NV, a 6 hour car trip to Salt Lake City. I am certain that Sen Reid has many friends in the LDS hierarchy. His ‘friend’ from Bain who made the tax remarks about the Gov’s non-payments is a straw-man, to throw off investigators [how would the Sen know folks from Bain?]. No, Reid knows that Mitt has been ‘cheating’ on his tithing, from his LDS leaders, and it really ticks him off!.

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