In years past, Florida state judges have used the privacy clause to strike down several state level pro-life laws including parental involvement laws and waiting periods.
(Photo: Reuters/Kevin Lamarque)

The Constitutional Revision Committee (CRC) sounds important. It is. Every 20 years the CRC, composed of 37 members, convenes to review and propose changes to Florida's Constitution. If the CRC approves a proposal it goes directly on the ballot in November. Proposal 22, would prevent the Supreme Court of Florida from reading into the word "privacy" more than was originally intended and, in so doing, strikes a blow for democracy.

Proposal 22, "Right to Privacy Restoration Act," is a restoration act in more than one sense. First, it would restore the original meaning the words of the Privacy Amendment. When passed in 1980 the legislative record and media reports reveal privacy meant informational privacy, i.e., to be left alone from governmental surveillance and excessive data collection.

Since then, Florida's Supreme Court has ruled on 53 cases that raised privacy concerns. Approximately half of those cases adjudicated behavioral privacy such as abortion, euthanasia, schooling and freedom of movement. Only once did the court recognize the petitioner's right to be left alone from governmental snooping. Proposal 22 would refocus Florida's judiciary on the needs of private citizens for informational privacy without affecting behavioral privacy addressed by other state and federal laws.

Second, Proposal 22 is a restoration act in a more profound sense. Today, the most important issues have been removed from the democratic process by judicial fiat. For instance, the Florida Supreme Court has interpreted Florida's right to privacy amendment so broadly that a trafficker can force a minor girl-child to have an abortion without her parents' consent or that of a judge.

When the federal Constitution of the United States was being drafted, on at least two occasions, delegates proposed that the federal judiciary be granted the authority to strike down or amend laws passed by Congress that, although not unconstitutional, might, in their opinion, be unwise. This power of the Supreme Court to act as a "Council of Revision" was defeated. However, what the Founding Fathers denied the judiciary it has bestowed upon itself.

Many judges believe they have a duty to legislate from the bench. They were taught to do so in law school. The jurisprudence of legal realism requires a judge to not slavishly cling to the actual words of the constitution or its amendments or the original intent of its drafters, to past precedent or stare decises. Rather, truly great judges must look, not to the past, but to the future following their "hunches" and value preferences and make law for the good of all.

In his Gettysburg Address, President Lincoln asked whether "government of the people, by the people and for the people shall perish from the earth?" Given the judicial usurpation of the democratic process by activist judges trained in the philosophy of legal realism, the last resort of the people to govern themselves is a constitutional amendment overturning judicial overreach.

The passage of Proposal 22 would be a shot over the bow ordering Florida's courts to stand down and give heed to the consent of the governed. The members of the CRC need to strike a blow for democracy and restore trust in representative government and the goodness of our laws by placing Proposal 22 on the ballot.

Originally posted at the Naple News.

Brian Scarnecchia is a professor of law at Ave Maria School of Law, Naples, Florida, where he teaches jurisprudence. He recently testified before the CRC In favor of placing Proposal 22 on the ballot.

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