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Buzz Scherr's Amicus Briefs: The virtue of constitutional vagueness

October 12. 2018 8:55PM

Question 2 on this November's ballot is a proposed constitutional amendment that is a direct response to the onslaught of technology that seems at times to know more about us than we know about ourselves. It reads, "An individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent."

Few have contested the goal of protecting our personal and private information from governmental interference. Sophisticated technological advancements in recent decades have outstripped the ability of Part I, Article 19 of our New Hampshire Constitution's ability to protect us from such interference. The framers of the New Hampshire Constitution did not, nor could not, contemplate license plate scanners, unregulated surreptitious harvesting of DNA or facial recognition technology when they talked about unreasonable searches or seizures of one's person, his houses, his papers, and all his possessions.

It's time to lay down a marker that recalibrates courts' consideration of the balancing of one's privacy interests against the government's interest in its interference. This is done by adding to our constitution a statement of principle exactly like that proposed in Q2.

A few have argued that Q2's proposed language is too vague. Such arguments misunderstand of how our constitution works. If vagueness is a strike against a constitutional amendment, then our current state constitution, which has successfully guided our state for 234 years, is an irretrievable mess, replete with vagueness.

Part I, Article 13 allows those who are conscientiously scrupulous not to be forced to possess arms. Article 10 says that "whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government." Article 2: "All men have certain natural, essential, and inherent rights..." Note, of course, the language identical to Q2.

My personal favorite for profound vagueness, as no doubt scholars would claim, is, Article 38: "A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to justice, moderation, temperance, industry, frugality, and all the social virtues, are indispensably necessary to preserve the blessings of liberty and good government; the people ought, therefore, to have a particular regard to all those principles in the choice of their officers and representatives."

All the italicized language is vague yet we have managed to build a stable society based on the rule of law in spite of that rampant vagueness. In fact, it's not "in spite of" but "because of." All principles are, almost by their nature, vague, if vague means the language is not explicit as to cover every circumstance imaginable.

The Constitution is meant to be a set of broad principles by which a country or state agrees to live. Virtually every constitutional principle needs statutory implementation by legislatures and interpretation by courts. The legal system is built to have the principle stated in the Constitution and then to have the legislature enact laws to implement the principle, though not to change it, and to have courts interpret the principle with regards to case-specific circumstances.

Our legal system never asks the statement of principle to do all the work of implementation and remove any need for interpretation. The Constitution would be thousands of pages long otherwise, and there would inevitably still be circumstances left uncovered, thus requiring legislative implementation and judicial interpretation.

"Vague" constitutional principles have endured for centuries in New Hampshire and the U.S. One of the foundational functions of courts is to help us better understand the meaning of constitutional principles in light of other such principles; in light of the meaning intended by the drafters, and; in light of societal norms, to mention only a few references. This interpretive need is not a failure of constitutional draftsmanship.

There are many schools of constitutional interpretation; originalists; textualists; the living-constitution approach etc. But none of them take the position that constitutional language must be so clear that there is no need for interpretation. Constitutional scholars debate the scope and depth of the interpretation but not that vagueness is, in and of itself, wrong.

A good constitutional principle will never answer every question by its language. It intentionally leaves the doors open to account for circumstances we have yet to experience. However one feels about the principle, Question 2 puts forward a principle that is appropriately vague to cover ever-evolving technology.

Albert "Buzz" Scherr is a professor at the University of New Hampshire School of Law. The opinions expressed in this column are his own.

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