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 power balance 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. For various centuries, the concept of federalism in the United States has been experiencing numerous shortages that relate to power-sharing between the various government levels. These issues have called for constitutional issues and arguments on whether federalism has any negative or positive outcomes on the basic rights of the American citizens (Rose & Goelzhauser, 2018). An illustration of a debated constitutional issue of concern include privacy rights, i.e., are there any federal laws that encourage or interfere with an individual's privacy rights? 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
Privacy rights constitute major concepts of basic liberal and constitutional ideas in the country (Lim, 2015). Among the vital contributions of federalism on the rights to privacy is its ability to enable people to decide on the extent to which their privacy can be affected by the legislation. The separation of powers that is accompanied by federalism provides the state government with powers to enact laws that align with their specific privacy issues and concerns. In this regard, legislation enacted by the state government base on the thoughts and ideas of the people and in line with the level of government involvement in their private issues. Federalism, therefore, enables the citizens to decide on the levels of government involvement in their private lives for either political or security purposes.
The separation of powers that comes along with federalism limits the interference of the federal 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. However, the federal government ensures that the states act within the limits of their powers and enact legislation that is in line 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. In this case, federalism empowers the people to determine their extent of privacy while protecting them from state legislation that may negatively interfere with their rights to privacy as stipulated in the U.S. Constitution.
The Negative Impact of Federalism on Privacy Rights
In spite of the positive impacts on privacy rights that come along with federalism, the concept also comes along with negative impacts on its constitutional provision. While the concept empowers state governments 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 wide application of privacy protection technology and how it's effectively used by the government to ensure law enforcement and homeland security.
The passing of acts such as the Patriot Act of 2002 (PAT) enabled government institutions and agencies to obtain foreign intelligence data which may include the U.S. and/or non-U.S. citizens. Other Acts such as the Stored Communications Access Act were easily established by the government to enable the FBI to access stored voicemail via a search warrant, other than the 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 at two levels that operate simultaneously, the executive agencies on all levels are increasingly participating in the collection of individual data (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 is the most significant. 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 there is no guarantee of privacy by personal behavior but by legislation that is mandated by the federal government. While federalism leads to the addition of legislation and bureaucracies that fail to solve the pertinent problems of civilization and the society, it compels more detailed thinking on how individual rights, specifically the privacy rights, come up in light of public demands.
Federalism ensures the participation of both the state and federal 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 Electronic Communications Privacy Act of 1986 (ECPA), the Foreign Intelligence Surveillance Act of 1978 (FISA), and the Patriot Act of 2002 (PAT) (Hail, 2011). State governments also 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 power sharing between the central 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 levels by which their privacy is affected by the legislation. It does this by empowering the local and state governments to decide and establish laws that address their issues, including privacy rights. 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 in the states.
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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