What two amendments?

[Jeff Renz]

Hmmm.  Both work quite well for us.  In the privacy area, we use a Katz test
to determine if there is a right and to measure its strength, then apply the
compelling interest balancing test.  The right encompasses informational
privacy and personal autonomy privacy, It has been applied to protect
doctor-patient communications and decisions, to protect the sanctity of
adults' private, consensual sexual relationships, and to fill in some of the
gaps in the right to be free from unreasonable searches and seizures.  It
has not, however, assisted the transition from taxi driver to lawyer, as
John suggests it might.

    The Right to Know is far more powerful than the FOIA.  It has very
effectively opened government to public scrutiny.  Its definition of
documents is intentionally broad.  Its deliberations clause has been applied
to trump the attorney-client privilege in litigation between government
agencies.  It has been applied to enforce requirements of notices of
meetings, to prevent off-the-record caucuses by legislative bodies, to open
judicial hearings that a criminal defendant sought to close, and to open
contract negotiations to the public.  VP Cheney's closed energy meetings
would not have survived Art. II, sec. 8 and 9.

How to describe and circumscribe?  How did we describe and circumscribe the
Bill of Rights?  We can start by reference to similar state provisions.
Katz still provides an excellent test for the countours of an assertion of
privacy.

Jeff

Prof. Jeffrey T. Renz
School of Law
The University of Montana
Missoula, Montana  59812
1-406-243-5127
jeff.renz at umontana.edu
----- Original Message ----- 
From: "J. Noble" <jfnbl at earthlink.com>
To: "Jeff Renz" <jr167163e at mail1.umt.edu>; "Samuel Bagenstos"
<srbagenstos at wulaw.wustl.edu>; <conlawprof at lists.ucla.edu>
Sent: Thursday, January 26, 2006 11:08 AM
Subject: Re: What two amendments?


> The second sounds like FOIA, supplemented with the elimination of
> standing requirements for administrative proceedings. The first
> sounds like the Lawyers Unemployment Relief Act. If it does more than
> "fix" the penumbral right of privacy as of the time of enactment or
> ratification, how would would you approach the description and
> circumscription of the "right of individual privacy"?
>
> John Noble
>
> At 9:54 AM -0700 1/26/06, Jeff Renz wrote:
> >The right of individual privacy is essential to the well-being of a free
> >society and shall not be infringed without the showing of a compelling
> >governmental interest.  (Source: Section 10, Montana Declaration of
Rights).
> >
> >No person shall be deprived of the right to examine documents or to
observe
> >the deliberations of all public bodies or agencies of government and its
> >subdivisions, except in cases in which the demand of individual privacy
or
> >of national security clearly exceed the merits of public disclosure.  No
> >citizen shall be denied the opportunity to participate in the operation
of a
> >governmental agency prior to its final decision on any matter, in a
manner
> >provided by law.  (Source: Sections 8 and 9, Montana Declaration of
Rights).
> >
> >----- Original Message -----
> >From: "J. Noble" <jfnbl at earthlink.com>
> >To: "Jeff Renz" <jr167163e at mail1.umt.edu>; "Samuel Bagenstos"
> ><srbagenstos at wulaw.wustl.edu>; <conlawprof at lists.ucla.edu>
> >Sent: Thursday, January 26, 2006 9:34 AM
> >Subject: Re: What two amendments?
> >
> >
> >>  How would you word them?
> >>
> >>  John Noble
> >>
> >>  At 9:26 AM -0700 1/26/06, Jeff Renz wrote:
> >>  >My two?
> >>  >
> >>  >Right to know; Right to Individual Privacy.
> >>  >
> >>  >Prof. Jeffrey T. Renz
> >>  >School of Law
> >>  >The University of Montana
> >>  >Missoula, Montana  59812
> >>  >1-406-243-5127
> >>  >jeff.renz at umontana.edu
> >>  >----- Original Message -----
> >>  >From: "Samuel Bagenstos" <srbagenstos at wulaw.wustl.edu>
> >>  >To: <SLevinson at law.utexas.edu>; <Conlawprof at lists.ucla.edu>;
> >>  ><mfranck at radford.edu>; <lawcourts-l at usc.edu>
> >>  >Sent: Thursday, January 26, 2006 9:16 AM
> >>  >Subject: RE: the ever more mysterious Democratic Party
> >>  >
> >>  >
> >>  >I've got to ask, which one or two?
> >>  >
> >>  >====================================
> >>  >Samuel R. Bagenstos
> >>  >Professor of Law
> >>  >Washington University School of Law
> >>  >One Brookings Drive
> >>  >St. Louis, MO  63130
> >>  >314-935-9097
> >>  >Personal Web Page:
> >>  >http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
> >>  >Disability Law Blog:  http://disabilitylaw.blogspot.com/
> >>  >
> >>  >>>>  "Franck, Matthew J" <mfranck at radford.edu> 1/26/2006 9:48 AM >>>
> >>  >
> >>  >Then again, I can only think of one or two constitutional amendments
I
> >>  >would ever have added to the original Constitution, from among all
those
> >>  >we have had.
> >>  >
> >>  >
> >>  >
> >>  >Matt
> >>  >
> >>  >***************************
> >>  >Matthew J. Franck
> >>  >Professor and Chairman
> >>  >Department of Political Science
> >>  >Radford University
> >>  >P.O. Box 6945
> >>  >Radford, VA 24142-6945
> >>  >phone 540-831-5854
> >>  >fax 540-831-6075
> >>  >e-mail mfranck at radford.edu <BLOCKED::mailto:mfranck at radford.edu>
> >>  >www.radford.edu/~mfranck
> >>  ><BLOCKED::http://www.radford.edu/~mfranck>
***************************
> >>  >
> >>  >
> >>  >_______________________________________________
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> >>  >
> >>  >
> >>  >_______________________________________________
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> >>  >
> >>  >Please note that messages sent to this large list cannot be viewed
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> >>  >(rightly or wrongly) forward the messages to others.
> >>
> >>
>
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