Privacy

The problem

The Constitution never mentions privacy. The protection Americans rely on is inferred — mostly from a Fourth Amendment whose closed list of “persons, houses, papers, and effects” courts have strained for decades to stretch over phone records, location histories, and the data trails of digital life. Roughly 186 of the world’s 193 national constitutions contain an express privacy provision; the United States is the conspicuous outlier.¹

Inference has two costs. It has gaps: because information shared with a third party has long been treated as unprotected, the government can simply buy from data brokers — location histories, browsing records — what it could never seize without a warrant.² And it is unstable: rights courts inferred, courts can narrow, and the leading digital-privacy precedent rests on a 5–4 vote.³ Congress has tried to close the gap by statute. Every comprehensive privacy bill since 2018, from both parties, agreed on the substance — access, correction, deletion, data minimization, security — and every one died over machinery: whether the federal rule is a floor or a ceiling, and whether individuals can enforce it.⁴ Those are the two questions a constitutional right settles by its nature — it is individually enforceable, and it is a floor. That is what makes this amendment territory rather than another attempt at the same statute.

The principle

Four parts, each doing a specific job:

An express right with an open list. Section 1 names the right and enumerates its anchors — home, communications, movements, personal information — with “including,” not a closed list, so the text can reach technologies no drafter can foresee. Its second sentence does the most work in the article: information does not lose protection because it was disclosed to a phone carrier or a bank, or because each piece is trivial on its own. Modern surveillance is built from aggregated trivial data held by third parties; without this sentence, every other protection in the article could be evaded by obtaining the data from the third party instead.⁵

One acquisition rule with one bright line. Government may not obtain by purchase what it could not take by search — the principle behind a bill that passed the House with majorities of both parties voting yes.² And one flat prohibition that balancing cannot erode: no generalized, suspicionless collection of the people’s communications or movements. Where courts have policed mass surveillance with balancing tests alone, they have ended up regulating it rather than forbidding any of it.⁶ One bright line; proportionality governs everything else.

Rights in your own records, and a power to legislate. You may know what the government holds about you and correct material errors — the Privacy Act of 1974, elevated to a right.⁷ Information collected for one purpose may not be quietly repurposed for another: census answers cannot become enforcement files, toll records cannot become a movement database. For data held by companies, the article grants Congress and the states express power to secure access, correction, and deletion by statute — settling the constitutional authority question while leaving consent mechanics and enforcement design to legislation, where they can be revised.

Tiered review and guaranteed redress. Ordinary, lawful collection — tax filings, the census, benefits administration — requires only public, accessible, foreseeable law.⁸ The sensitive core (health, biometric and genetic identity, private communications, precise movements, children) requires a compelling public interest and narrow tailoring. Anyone aggrieved may seek redress in court — the question every failed statute could not settle — while damages regimes stay in legislation. And nothing in the article reaches publication of truthful information or the freedom of the press.

The draft text

Why it can pass

A caveat first: no gold-standard pollster has asked Americans about a constitutional privacy amendment.⁹ The measured evidence is about data privacy — the closest proxy — and it shows some of the smallest partisan gaps of any issue we track¹⁰¹¹:

The support shows up in votes, not just surveys:

• The House has passed the acquisition rule’s principle. The Fourth Amendment Is Not For Sale Act — barring government purchase of data it could not seize without a warrant — passed the House 219–199 in 2024, with 123 Republicans and 96 Democrats voting yes.² It died in the Senate; the warrant question remains open in Congress today.¹²
• Voters ratify this text by wide margins. Eleven states have constitutional privacy language, some court-tested for fifty years. The modern digital versions passed with about 89% of voters in Michigan (2020), 81% in New Hampshire (2018), and 75% in Missouri (2014) — all government-facing, informational framings like this one.¹³
• Warrant requirements poll high, with a caveat: 80% supported requiring a warrant before government buys location or internet data, and 76% before searching Americans’ communications (YouGov, 2023) — but the survey was advocacy-commissioned and published no party breakdowns.¹⁴
• No federal privacy amendment has ever failed, because none has ever advanced. After Watergate, Congress chose statutes instead; no privacy amendment has ever received committee action.⁷ There is no record of failure, and none of success.

Two findings we state openly: concern about government data use repolarizes by who holds power — each party’s alarm rises when the other holds the White House — which is an argument for a rule that binds every administration, and a warning about campaign framing.¹⁵¹⁶ And the article’s flat ban on mass suspicionless collection rests on congressional votes and warrant polling rather than direct survey data; it is first on the list for the polling we commission.

If it passes: the law today and the day after

The draft has no effective-date clause, so what changes on ratification is set by which sentences state a rule a court can apply and which say “by law”; Section 8 makes it prospective — it governs the retention and use of information after ratification without making earlier acquisitions unlawful. (How ratified amendments interact with existing law in general is covered in After ratification.)

Federal law today

Constitutional privacy is judge-made. Under United States v. Miller (1976) and Smith v. Maryland (1979), records a person conveys to a bank or phone company carry no Fourth Amendment protection.¹⁷ Carpenter (2018) declined to extend that rule to cell-site location records but called its holding narrow, leaving other business records and national security untouched.¹⁸ No federal statute governs government purchase of commercial data; a 2022 intelligence-community review found agencies collect “a significant amount” of it.¹⁹ The Privacy Act of 1974 gives access and correction rights against federal agencies only, with a “routine use” exception for compatible purposes.²⁰ The Stored Communications Act lets providers sell subscriber records to anyone but the government, and lets the government compel them on less than probable cause.²¹ Bulk domestic collection ended by statute in 2015,²² and no federal law regulates commercial data comprehensively.²³

State law today

Eleven state constitutions contain express privacy text, and twenty-four states had comprehensive consumer-privacy statutes by a mid-2026 count; all would stand as a floor.¹³²⁴ In 2025 Montana became the first state to bar its agencies from purchasing communications, location, and other sensitive data without a warrant or court-issued subpoena — the model for state conforming legislation.²⁵ At least 16 states regulate license-plate-reader data, with retention limits from three minutes to sixty days; long-retention plate networks are the state practice most exposed to Section 2’s ban on retaining “the movements of the people.”²⁶

The day after

Sections 1, 2, 5, and the first sentence of 6 take effect without legislation. On ratification, the third-party doctrine stops governing government access to records, and purchase of investigative data without judicial authorization, consent, or exigency becomes a violation a court can enjoin; no statute needs repeal, because none authorizes either practice.¹⁸²¹ The rest waits for legislation: statutory purpose exceptions under Section 3, the sensitive-data definitions of Section 4, damages under Section 6, and any rights against companies under Section 3’s last sentence — a statute such as the pending SECURE Data Act or the failed APRA.⁴ The Privacy Act, tax and census confidentiality, and warrant-based surveillance law stand.²⁰²⁷ Courts will decide whether programmatic FISA certification is “judicial authorization,” whether a records order below probable cause satisfies Section 5 for location data, who “the people” are, and how Section 6 meets Article III standing after TransUnion.²⁸²⁹

What we left out

What we considered and set aside, and why:

• “The right to be let alone.” The most famous phrasing in American privacy law, and Florida’s constitutional text.¹³ Set aside because an unqualified right to privacy is read as a right about personal decisions, not intrusion — it is the doctrinal root of the abortion cases,³⁰ and an unscoped text would be litigated, and campaigned against, as an abortion amendment. This article anchors the right to intrusion into private life and information, and “unreasonable” imports two centuries of settled doctrine: taxation, subpoenas, and court process remain lawful.
• A constitutional right to deletion. Deletion appears in every federal bill from both parties⁴ — but a constitutional deletion right reaching public records, court files, and journalism becomes a European-style right-to-be-forgotten, which fails settled First Amendment doctrine,³¹ and deleting government records undermines accountability. The article instead guarantees access and correction against government and makes deletion rights against companies an express legislative power.
• Judicial process for all government collection. An unscoped warrant rule would sweep in tax reporting, the census, benefits eligibility checks, and public-health reporting — none of which involves a judge today. The rule is scoped to investigative and intelligence acquisition, the boundary the state amendments that passed by wide margins already use.
• Blanket strict scrutiny. A single top-tier standard for all personal information would turn every audit and subpoena into constitutional litigation. The tiered standard mirrors distinctions courts already draw — and where constitutional privacy rights with proportionality tests exist abroad, courts have upheld national welfare and registry systems while striking overreach, evidence that tiering preserves legitimate state functions.³²
• Constitutional damages or evidence-exclusion rules. Writing automatic damages or suppression into the text would re-fight, at constitutional scale, the private-right-of-action dispute that helped kill every federal bill.⁴ The article guarantees that the right can be enforced in court at all, and leaves remedy design to legislation, where it can be calibrated and revised.
• Everything inherently statutory: covered-entity thresholds, opt-in and opt-out mechanics, data-broker registries, enforcement-agency design, and preemption rules — the last of which does not arise, because a constitutional right is inherently a floor.

← All amendments