Privacy and Functional Constitutionalism

“… the functional–pragmatic view is normative… in the… sense of making predictions about the necessities acting on present practices. It could claim, for instance, that the commitments laid out in the [Constitution] cannot be consistently met without a further right to privacy. This would be a functional argument: a right to privacy is necessary to protect speech and property and to prohibit unreasonable search and seizure and self-incrimination. Such a move displaces the normative burden to a conception of dysfunction —to the idea that the difficulties encountered by democratic practice will undermine it if they are not resolved. The functional–pragmatic view reveals contradictions implicit in such practices and makes the claim, for example, that “if you’re really serious about protecting free political speech, you must institutionalize something functionally equivalent to a right to privacy.” In the case of free speech and the right to privacy, then, we would have to know when speech was not being properly protected and how a right to privacy could ameliorate the situation. A sound analysis of the particulars of the case would provide a functional argument for such a right. Absent some observable dysfunction, however, no such argument could be made.”

Kevin Olson, ‘Do Rights Have a Formal Basis?’ 11(3) The Journal of Political Philosophy 2003, pp. 284 – 285.

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  1. Pingback: Privacy and Functional Constitutionalism — Indian Constitutional Law and Philosophy – LAW SCHOOL LEARNERS

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