The right to privacy falls under the "human rights" part of my comment. You are free to disagree that privacy in some meaningful sense is not a human right, but the very fact that so many other rights (both legal and human) are easily compromised when it is not present is a strong hurdle to overcome, should you wish to make that argument.

As an example, you have the right to criticize your employer (freedom of speech). For obvious reasons, this right is best exercised in private, where the employer cannot overhear the conversation. If the employer operated a massive surveilance network that recorded your supposedly private conversations, you could then suffer punitive consequences and be denied career opportunities merely for voicing an opinion.

You have a legal right to an attorney, but that right is only useful because your discussions with your attorney are confidential. Without that privacy, the whole value of the right simply evaporates.

My view is that the right to privacy is such an obvious prerequisite for most, if not all, of our legal rights to have any value that it shouldn't need to be explicitly detailed in the Constitution or in any specific law. Furthermore, the world the Founders lived in was a world in which privacy was easy to safeguard, and the few obvious ways to violate it (e.g. unreasonable searches and seizures) were addressed by the Bill of Rights.

> You are free to disagree that privacy in some meaningful sense is not a human right

I don't disagree that privacy in some meaningful sense is a human right. I disagree that a "privacy" right that is broad enough to encompass information about me collected by a private company based on my voluntary use of its service (i.e. phone call records) rises to the level of human right. To me, that's instead a matter of balancing of competing interests to be handled through the democratic process. When I think of privacy being a "human right" I'm thinking more of the government not invading the sanctity of your home, not how it can access information you already freely share with others.

Not sure why you're being downvoted.

One of the main problems with privacy today is that your rights to privacy are typically enumerated in lengthy terms of service or user agreements that can and do change without notice. If these documents truly do enumerate "rights" they shouldn't be so easily changed whenever the company finds it convenient or profitable. What you initially agreed to was a 20 page document written in legalese that few will bother to read through.

If you truly want to be informed and up to date on your privacy rights for all of the services you use, you basically have to make it a full time job. It's not a sustainable system. What we need is some sort of societally accepted norms, and possibly laws, regarding privacy so that you don't have to hire a lawyer to give you a monthly update explaining what Facebook can and can't do with the data you and your friends provide them.

My point is that whatever norms or laws that result from those considerations will be arbitrary unless they are based firmly on a respect for an individual's human right to privacy.

It seems to me that we do have "societally accepted norms, and possibly laws, regarding privacy." The norms/laws are that the information you share freely with Google/FB/Verizon/etc can be passed along to the gov't in support of national security.

These norms/laws aren't arbitrary, they're based on the views of the majority of the citizens of this country, expressed through the democratic process.

> Ideological minorities don't get to make up "rights" and then demand the government defend them.

Sure they do; their right to make such demands is fairly explicit in the First Amendment (both the right to assemble and the right to petition apply to it.)

Now, the answer to the demand may be "No", but that's a different issue.

I was under the impression that the Constitution explicitly granted the federal government certain powers, and the 10th amendment clarified that if a power wasn't granted to the fed in the Constitution, it was because the power was retained by the states and the people. So the Constitution wouldn't need to grant the people a right to privacy. It was implicit, and even further emphasized by the 4th amendment.

In the Constitution, the federal government is given broad, exclusive, power over national security and defense. Intelligence-gathering has always a part of national security and defense. That was a key purpose of the documents, to address the failure of the Articles of Confederation to provide for a robust centralized defense. Intelligence gathering has always been a part of the historical understanding of defense and national security. Therefore, the federal government can conduct intelligence gathering unless some affirmative right prevents it.

The 10th amendment just says that a right need not be enumerated in the Constitution to exist. However, you still have to prove that such a right exists, say by pointing to its recognition in English common law. Just because it isn't mentioned in the Constitution doesn't mean it doesn't exist, but it also doesn't mean that it exists and is just "implicit." The idea that communications are protected by a broad "privacy right" that protects even information you share with others just can't be traced back to something the founders would have understood to be a "right" much less something so fundamental that they might leave it implicit.

> In the Constitution, the federal government is given broad, exclusive, power over national security and defense

Like "privacy", "national security" appears nowhere in the Constitution. The federal government is given certain specific powers that can be grouped under the umbrella "national security", just as it is given certain specific limits based on particular rights that can be grouped under the umbrella "privacy".

"National security" falls under the umbrella of "common Defence" (which appears twice in the Constitution). Indeed, one of the motivating forces behind the creation of a stronger federal government under the Constitution was Shay's Rebellion, which was a purely internal threat.

The term ("privacy") does not appear in the Constitution, and the specific limits on federal power that do appear can't be generalized to fit under the umbrella of that term. There is no indication that e.g. the founders intended the 5th amendment protection against self-incrimination to be rooted in a "privacy" concept. It's clearly based on a "due process" concept, which explains why there is no general right to refuse to testify (which is what you'd have if the right was based on privacy) but only a right to refuse to testify in a way that might incriminate yourself. The concern is about he extreme persuasiveness of confessions, and the potential for abuse from coerced confessions, not about the right to keep information from a government investigation.

Similarly, the 3rd and 4th are better understood as rights based on the sanctity of the home and person (notably since the 4th conspicuously omits any reference to communications).

Attempts to find a right of "privacy" in the Constitution are extremely strained, for the simple reason that there isn't one. The founders just weren't thinking of this overriding concept of "privacy" as an umbrella concept for rights as disparate as protection against search and seizure, self-incrimination, or a right to an abortion.

> National security" falls under the umbrella of "common Defence" (which appears twice in the Constitution).

Both in reference to the purpose of the Constitution and the scope of purposes supported by Congress taxing power, but neither reference is to a general federal blanket power with regard to "common defense".

Powers under the Constitution are generally read to be complete within a particular ___domain except to the extent they are counter-balanced by affirmative rights. See Gibbons v. Ogden ("If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects...").

Yes, but you missed the part that "common Defense" occurs in the preamble discussing purpose, not powers, and in a phrase limiting the purposes of the Taxing power. Its not itself an enumerated Congressional power (Congress does have more narrow enumerated defense related powers), so its irrelevant, in discussing it, that grants of power to Congress are generally plenary except within express limitations.

Look at another clause in that section:

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States..."

By your method of interpretation, this clause gives Congress the right to exercise legislative jurisdiction over D.C., but not the right to build the city. A more sensible interpretation is that it grants Congress the power to build the city in the same breath as granting it exclusive legislative jurisdiction over it. The embedding of the power to provide for the common being embedded within the power to tax can be seen as operating similarly. Note that this drafting reflects history. There was no doubt under the articles of confederation that Congress had the power to provide for the common defense. The sticking point was that it did not have the power to tax to achieve that end.

Also, the preamble is not legally inoperative. It can be read as establishing "common defense" as an umbrella term for powers mentioned within.

Finally, providing for the common defense was considered at the time and today an inherent aspect of sovereignty, and the Constitution through the preamble shows the intent to invest that aspect in the federal government.

I can see the point you're getting at, but I don't think it works. You're comparing a power that's mentioned twice in the Constitution (archaic drafting aside), was considered an inherent function of government at the time, and was clearly motivated by by contemporary events as supported by the historical record, to an umbrella "right" that isn't mentioned explicitly by the Constitution, isn't a neat generalization of the rights that are explicit in the Constitution, and wasn't part of the historical understanding at the time.

I think there's some Occam's Razor analysis that needs to happen here. The simplest explanation of the text is that the common defense was intended to be a fundamental function of the federal government, while the various rights that arguably go to privacy were really derived either from a response to specific injustices at the hands of the British or from common law understandings of due process rather than some unstated general umbrella right of privacy.

> By your method of interpretation, this clause gives Congress the right to exercise legislative jurisdiction over D.C., but not the right to build the city.

No, it doesn't. Legislative jurisdiction over the territory itself includes the ability to build the city.

> You're comparing a power that's mentioned twice in the Constitution

The phrase is mentioned twice, but neither is a grant of power (one is a statement of the overall purpose of the Constitution, the other is expressly a limitation on the scope of another grant of power.)

There is no mention of "common defense" as a power anywhere in the Constitution.

> No, it doesn't. Legislative jurisdiction over the territory itself includes the ability to build the city.

No more or less than the power to tax for the purpose of providing for the common defense includes the power to actually provide for the common defense.

Which it doesn't, any more than the power to tax for the purpose of general welfare (which is part of the same phrase as the "common defense") gives Congress independent non-taxing power to provide for the general welfare outside of the grants elsewhere in the Constitution. There's quite a lot of conditions, etc., you can apply to liability for taxes, etc., that allow some substantive regulation to be plausibly included under the taxing power, but if you read the purpose limitation of the taxing power to instead be a positive grant of power independent of the taxing power, as you suggest, that one clause alone would shift the federal government under the Constitution into one of universal plenary power with only negative restriction instead of one of specific positive powers, and its quite clear that that was never the intent of that clause (as well as that interpretation being completely inconsistent with the actual words of the clause.)