|Type of paper:||Essay|
|Categories:||United States Constitution Federalism Human rights|
The concept of federalism entails the division of power between the federal government and individual state governments. In the U.S., it entails the constitutional division of power between the U.S. state government and the federal government of the country (Rose & Goelzhauser, 2018). Its progression in the country began from dual federalism, state-centered and later the new federalism. While the concept of federalism has been in the United States for various centuries, there exist numerous problems that relate to the sharing of power between the various levels of government. These issues have called for constitutional debates on whether the concept has any positive or negative impacts on the fundamental rights of American citizens (Rose & Goelzhauser, 2018). An example of a constitutional issue of concern that is debated is privacy rights, i.e., do some federal laws support or infringe on an individual's right to privacy? The paper examines the positive and negative impacts of federalism on privacy rights and identifies the most significant impact.
The Positive Impact of Federalism on Privacy Rights
The right to privacy constitutes one of the major concepts of contemporary liberal and constitutional ideas in the United States (Lim, 2015). One of the positive impacts of federalism on privacy rights is that it enables people to decide on the extent to which legislation affects their privacy. This is achieved through the separation of powers where the state government can decide on the privacy laws they wish to enact. Federalism enhances this by giving the local and state governments the powers to decide on the laws that relate to various issues regarding privacy. In this regard, the state governments can enact legislation basing on people's ideas and thoughts regarding the extent of government involvement in their private lives. Federalism, therefore, enables the citizens to decide the extent to which their private lives would be available to the government for either political or security purposes.
With reference to the principle of separation of powers, federalism warrants the interference of the central government on the state operations. The state is, therefore, at liberty to enact laws that include privacy laws that are in line with the needs and demands of its residents. The federal government only comes into play to ensure that the states do not misuse their powers and enact legislation that would interfere with the privacy rights of its people as stipulated in the constitution (Rose & Goelzhauser, 2018). An example is the Consumer Privacy Act that was passed by California and other multiple states in 2018 that proposed legislation to protect consumers in their states. However, the privacy laws implemented by the states have to comply with the right of privacy that is suggested in the fourth amendment of the U.S. Constitution. Federalism does not, therefore, provide the people with power to determine the extent of privacy but also protects them from state legislation that would likely interfere with their privacy rights as stipulated in the U.S. Constitution.
The Negative Impact of Federalism on Privacy Rights
Despite federalism having a positive impact on privacy rights, it also has a negative impact on its constitutional provision. While the concept provides the states with powers to ensure the protection of the privacy rights of its citizens, the central government still retains some control of the regulations passed by the states with regards to privacy among others (Rose & Goelzhauser, 2018). Federalism has not only made it easy for state governments to establish and implement legislation that aligns with the privacy rights of the citizens but also made it easy and possible for the central government to access and obtain individual information that can easily be kept in the government databases. This includes the legal concerns that address the broad adoption of privacy protection technology and how it's effectively used by the government to ensure homeland security and law enforcement.
The passing of acts such as the Patriot Act of 2002 (PAT) enabled government agencies to gather or obtain foreign intelligence information from both the U.S. and non-U.S. citizens. Other Acts such as the Stored Communications Access Act were easily established by the government to enable the FBI to gain access to stored voicemail via a search warrant, as opposed to the more stringent wiretap laws (Hail, 2011). While such moves may be beneficial to the citizens, they still go against their privacy rights knowing that despite their state established privacy laws brought about by federalism, their data can easily be accessed by the central government at any time. In this case, while federalism ensures provision and guarantee of privacy rights by the constitution and court systems at two levels that operate concurrently, the executive agencies across all levels are increasingly participating in the collection of data on individuals (Hail, 2011).
The Most Significant Impact
After analysis of the positive and negative impacts of federalism on privacy rights, I believe that the positive impact has the most significant impact. This is because the ability to participate and be provided with privacy rights and to be assured of the privacy and security of your information is vital for citizens. In this era of technological growth and advancement, there is a lot of personal information obtained with or without a person's concern. This leads to the current situation where privacy is not guaranteed by personal behavior but by federally mandated legislation. While federalism leads to the addition of legislation and bureaucracies that do not change the basic problems of civilization and the society, it compels more serious thinking on how individual rights, specifically the privacy rights, come up in light of public demands.
Federalism ensures the participation of both the federal and state governments in implementing the privacy rights of the citizens, thus making it a serious issue of concern. The federal government participates by implementing acts that support privacy of rights such as the Federal Wiretap Act (FWA) of 1968, the Foreign Intelligence Surveillance Act of 1978 (FISA), the Electronic Communications Privacy Act of 1986 (ECPA) and the Patriot Act of 2002 (PAT) (Hail, 2011). On the other hand, state governments implement consumer privacy acts such as the California Consumer Privacy Act of 2018 (CCPA) that ensures privacy and protection of personal information of California citizens (McCreary, 2018). However, while the government may easily get accessibility of the information, it is performed with a search warrant and is for the benefit of the respective states, i.e., for protection against terrorist activities.
To conclude, federalism allows for the sharing of power between the central government and the state governments. This provides the states with powers to handle issues regarding their people within the laws stipulated in the U.S. Constitution. Among the issues of concern that have stirred constitutional debates to include the privacy rights of the U.S. citizens in their respective states. Federalism enables state individuals to participate in the decision of the extent by which legislation affects their privacy. It does this by providing the local and state governments with powers to decide and establish laws that relate to the issues that affect them, including privacy. An example, in this case, is the California Consumer Privacy Act (CCPA) that was established in 2018 by the state of California to protect consumer information of California citizens (McCreary, 2018). The concept of federalism, therefore, plays a vital role in enhancing the privacy rights of American citizens.
Hail, M. (2011). Federalism, Privacy Rights, and Intergovernmental Management of Surveillance: Legal and Policy Issues. Researchgate.net. Retrieved from https://www.researchgate.net/publication/221910555_Federalism_Privacy_Rights_and_Intergovernmental_Management_of_Surveillance_Legal_and_Policy_Issues
Lim, E. (2015). The federalist provenance of the principle of privacy. Ink.library.smu.edu.sg. Retrieved from https://ink.library.smu.edu.sg/cgi/viewcontent.cgi?article=4069&context=soss_research
Rose, S., & Goelzhauser, G. (2018). The State of American Federalism 2017-2018: Unilateral Executive Action, Regulatory Rollback, and State Resistance. Publius: The Journal Of Federalism, 48(3), 319-344. doi:10.1093/publius/pjy016
McCreary, M. (2018). The California Consumer Privacy Act: What You Need to Know | New Jersey Law Journal. New Jersey Law Journal. Retrieved 12 July 2019, from https://www.law.com/njlawjournal/2018/12/01/the-california-consumer-privacy-act-what-you-need-to-know/?slreturn=20190612131529
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