A Right?
What is the ‘right to privacy’? And where in the world did it come from? The definition of the mere word ‘privacy’ is complicated enough. For some it means ‘withdrawal,’ for others ‘seclusion’. Or privacy can mean ‘independence’ or ‘intimacy’ (Hixson 7).
In America, privacy is an old idea, based on the way Americans have historically viewed themselves as individuals, their relationships with one another, and the state. Privacy is a central, pivotal part of what makes America the country it is today. In its authentic form, it is a fundamental American value. But the concept of privacy has been commandeered; its meaning manipulated to meet political ends. The Constitution explicitly protects individuals from government scrutiny. But this strictly observed rule has been weakened and diluted by attempts to establish a ‘right to privacy,’ a right based not on freedom from government intrusion, but from government regulation. The development of a new “right to privacy” has been encouraged by changing social attitudes, not social values. And apart from this tepid cultural support, the ‘right to privacy’ has a weak basis in constitutional law.
There is a fundamental difference between the ‘right to privacy’ in fact, and the ‘right to privacy’ as it has been applied in the U.S. Supreme Court. The right to privacy which is implied explicitly in the Constitution is a freedom from inspection, a guarantee of secrecy and anonymity where the public, and especially the government, is concerned. The ‘right to privacy’ which is not implied, either explicitly or implicitly in the Constitution, is that of a ‘right to personal autonomy,’ a freedom from government interference in personal decision making.
The difference is most clearly illustrated by how automobiles are dealt with under the law. The government regulates what can be transported in a car: there are laws against transporting guns and drugs in a trunk. These laws are examples of government placed limits on individual’s personal autonomy; they are regulations limiting people’s ability to choose what they wish to transport via automobile. However, the government is forbidden from randomly popping open car trunks in order to investigate compliance or non compliance with the law (Etzioni 210). The government may not infringe on an individual’s freedom from government scrutiny and public disclosure.
A right to personal autonomy is not, and never has been, a part of the Constitution. That is not to say that autonomy is an intrinsically bad thing. In fact, the American spirit of individualism supports the idea that people should think for themselves, make their own personal decisions, and keep their lives as free from government control as possible. But regulation of behavior, for the benefit of society, is part of the essence of good government. In fact, the government often limits autonomy by mandating privacy. Laws against public defecation, intoxication, and fornication all limit an individual’s ability to voluntarily wave their privacy (Etzioni 196).
In the centuries preceding the American War for Independence, Americans gave religious institutions were the right and the responsibility to interfere in private lives. ‘Disturbances of the neighborhood,’ (actions which contradicted the Puritan definition of the common good,) were routinely addressed in courts (Hixson 13).Government regulation of personal autonomy went so far as to forbid single living. Puritan opinion deemed living alone unsuitable because it was thought conducive to vagrancy, pauperism, and other social disorders troublesome to society at large (Regan 45).
That is not to say that Americans did not treasure their privacy. But privacy was an issue of respect and honor, not law (Hixson 14) Anyone who sought privacy would be permitted it. It was simply a matter of good manners. A care for privacy was also evident in the American public’s irritable reaction to the census of 1890. The census questions were denounced by the national press as invasive and impertinent, and aggravated citizens threatened a census strike (Regan 47).
Privacy has always been an American value, and has been a part of American legal tradition. But in the past, privacy was directly linked with a right to property. In cases involving a supposedly wrongful intrusion or invasion, property rights were the essential remedy (O’Brien 5). It was Samuel Warren and Louis Brandeis who, in a highly influential law review article, suggested that privacy was a right distinct and separate from other freedoms, including the right to property. They called it the ‘right to be left alone’ (Etzioni 189).
Calling privacy a right was, to begin with, a rather perilous thing to do. Rights tend to be absolute things; they cannot be justly denied, and regulating them is a complicated, difficult, and unpopular endeavor. But factum est illud, and the ideas of Warren and Brandeis were disseminated and made present in the minds of judicial minds throughout the country. At a time when cultural conditions permitted, Warren and Brandeis’ arguments would be used to establish, first, an independent right to privacy, and then, autonomy.
The time arrived in 1965, when the Supreme Court heard Griswold v Connecticut. The case involved a member of Planned Parenthood. She had been punished for breaking a state law which had forbidden her from disseminating information about artificial contraception (Samar 24). The Court ruled against Connecticut, establishing for the first time establishing a general right to privacy independent from specific protection from the Amendments. Justice Stephen Douglas based his concurring opinion on a ‘penumbra’ theory, by which a general right to privacy could be derived from a combination of several Amendments (O’Brien 178). Rights have zones, Justice Douglas argued. The first amendment’s ‘zone’ provided for not only a right to free speech but also, implicitly, fee association. And the First, Third, Fourth, Fifth, and Ninth Amendments created a zone which included a right to privacy (Griswold v Connecticut 479).
Those who dissented from the Court’s ruling were troubled by the lack of specificity in Justice Douglas’ argument. A penumbra is a remarkably abstract, indefinable thing. The dissenters also argued with the Court’s reliance on the Ninth Amendment for the discovery of a right to privacy. Justice Stewart held that the Ninth Amendment was not at all designed to guarantee specific rights to individuals. Rather, he argued, it simply expressed a truism, an acknowledgment that the federal government would be a limited one (O’Brien 184).Justice Black argued that, not only did the Ninth Amendment not guarantee any federally enforceable rights, its use by the Court to discover additional rights, including the right to privacy, exposed the American legal system to the risks of unrestrained judicial activism and abuse of judicial power (O’Brien 186).
What about Roe v Wade, the ruling made eight years following Griswold? Adding to Griswold’s mistake, it proposed the existence not only of a right to privacy, but a right to autonomy as well. In the decision, the Supreme Court ruled that a woman had a ‘fundamental right’ to an abortion. That right however, might be restricted in light of “compelling state interests” (Roe v Wade 163-165). The Roe ruling was “a very bad decision […] because it [was] bad constitutional law, or rather because it [was] not constitutional law and [gave] almost no sense of an obligation to try to be” (Ely 947).
The Roe judgment was in large part based on a misrepresentation of the Griswold case. There were, and are, two competing interpretations of Griswold. One interpretation held that the Griswold decision annulled an attempt by the state of Connecticut to regulate the decision to use contraception. In other words, state actions which interfere with intimate, personal decisions were declared unconstitutional. The other interpretation of the case maintains that what was declared unconstitutional in Griswold was not the government’s regulation of personal choice. It was the invasion of a private citizen’s anonymity, which was necessary to demonstrate compliance with the law, which made the statute illegal.
In their opinions, the concurring Justices of the Roe Court selected the former interpretation instead of the latter. This despite the fact that nowhere in his opinion did concurring Justice Stephen Douglas argue that unconstitutional government regulation was his reason for the Griswold ruling (Etzioni 208). The thrust of the Griswold decision was a rejection of the unacceptable government intrusion involved in enforcing the law, not the law itself. The Court, in using the case as precedence for Roe, ignored the evidence.
The Court’s ruling had the effect of supporting an imagined ‘right to privacy’ for women seeking an abortion. It refused to allow that a fetus might have the same ‘right to be left alone’, unmolested, in the womb. What is the justification for refusing the unborn the rights guaranteed to their parents? First, it is denied that fetus fits the definition of one possessing ‘life’. If the fetus posses ‘life’, then the Roe Court’s “compelling state interests” come into effect, and the choice to have an abortion might be regulated (Samar 200). Those who support the Roe ruling base their claims on ideas of ‘agency.’ In order to be eligible for protection by the state, a being must have a certain level of agency; the ability to take voluntary, purposeful actions (Samar 172). A fetus is completely dependant on a pregnant woman for support. It does not ‘choose’ to do anything in and of itself, and it does not make choices with a purpose in mind. Lacking status as an ‘agent’, a fetus is not entitled to fundamental rights, including privacy, life, etc. Of course, there is no way of knowing the condition of the consciousness of a fetus. But in the agency line of thinking, the burden of proof lies with those who would infringe upon a woman’s intrinsic and fundamental “right to privacy.”
There are degrees of agency; a healthy adult possessing a greater degree of agency than a newborn baby. And at what point does a human being reach the threshold of agency necessary to acquire fundamental human rights? Strictly speaking, there is no room for fundamental ‘human rights’ in this argument, only fundamental ‘person rights.’ If the agency of a human being is deemed great enough to merit the description of that human being as a ‘person’, then that being has ‘person rights.’ This assessment is dangerously subjective. There is, also, breathtaking arrogance and questionable wisdom in the suggestion that human beings can or should judge the personhood of one another.
The argument that the rights to life, due process etc. should be denied to fetuses is remarkably weak. But even if these concerns are set aside, the argument for a woman’s fundamental right to abortion cannot stand on its own. It is based on a theory of a right to personal autonomy, which, as has been discussed, was fictitiously built on shaky legal precedent. The Court’s ruling accepted, at least as a possibility, the ‘agency’ argument offered by those who supported abortion rights. By implying that a human being’s fundamental rights are conditional to the subjective judgments of other people, the Court opened a door through which implicit and explicit Constitutional rights may be unjustly denied in the future.
“Right to privacy” challenges to the constitutionality of state laws forbidding sodomy have also arisen. Are homosexual acts protected, private, lifestyle decisions? In Roe v. Wade, the Court affirmed a person’s right not only to protection from government inspection, but also to decision-making autonomy. If that decision’s deeply flawed rationale is applied to the issue, then homosexual acts are protected.
What about the alternative interpretation of Griswold v. Connecticut? That point of view holds that the Griswold decision did not imply a right to personal autonomy, but simply reiterated that state laws are unconstitutional if the level of government invasion necessary to enforce them is unacceptable. But even if this less stringent criteria is applied to the issue, homosexual acts are protected. The government can not enforce anti-sodomy laws unless it invades the privacy of a home, and discovers the crime in progress.
A possible ‘hole’ in the legal precedence exists in the differing rationales the Court relied on in making the Griswold decision. Justice Goldberg grounded the right to privacy in the Ninth Amendment, declaring that while homosexuality and adultery were sexual crimes, the intimacy between husband and wife was sacred, and the privacy of marriage had to be protected. (Griswold v Connecticut 499-507). Justice Harlan based his argument on the Fourteenth Amendment’s guarantee of “ordered liberty” and due process. His justification did not necessarily limit the ruling to marital relationships (Samar, 25). The different legal justifications the Court used to ‘discover’ the right to privacy in Griswold resulted in uncertainty about how the right to privacy should be applied in deciding later cases. For example, consider the arguments the Justices heard concerning Eistenstadt v Baird. Their decision stated that the statute challenged in the case treated married, and unmarried people differently. It therefore violated the Equal Protection Clause of the Fourteenth Amendment (Eisenstadt v Baird 446-445).
Justice Goldberg’s original opinion in the Griswold decision claimed that preserving the privacy of marriage was paramount, and this concern for privacy did not include the protection of homosexual acts. But ambiguities about the justifications for Griswold meant that when they heard Eisenstadt, the Court did not seem particularly vexed in extending the principles of the Griswold ruling to unmarried people, including homosexuals.
In 1986, the U.S. Supreme Court heard the case of Bowers v. Hardwick. Michael Hardwick had been arrested by Atlanta police, after they discovered him engaged in a homosexual act. The Court’s opinion denied any fundamental right to sodomy. And, echoing Justice Black’s concerns in the Griswold decision, it took a stand against the extension of the Fourteenth Amendment to include ‘new’ fundamental rights. (Bowers v. Hardwick, 190-191). Over-exercising the Due Process Clause, the Court warned, would have regrettable repercussions for the balance of power in American government. It would result in a powerful Judiciary ruling the country without constitutional authority (Bowers v. Hardwick, 194-195). More recently, however, the Court seems to have reversed itself. In 2003, in deciding Lawrence v. Texas, the Court declared that anti-sodomy laws violated the Due Process Clause and were unconstitutional. In overturning Bowers, the Court decided that the Bowers Court was simply wrong in judging the central problem of sodomy laws to be one of homosexual rights instead of privacy rights (Gordon 4). The Lawrence Court ruled, where privacy is concerned, homosexuals are protected.
Given the weakness of historical precedent to support a claim of a ‘right to privacy,’ what explains the Supreme Court’s behavior? It is possible that the Justices felt simply felt strongly that protection of personal autonomy should be part of the Constitution. With that in mind, “the Court knew the result it wanted to achieve and was not afraid to make the law conform to the desired outcome” (Ginsberg 620). Another contention is that, particularly in the Roe v Wade decision, the Court was subject to pressure from the press, and, in searching for a graceful way to succumb, stumbled upon a fictional right to privacy as a plausible justification (Noonan, 79).
The Court’s creation of a right to personal autonomy was not a result of political coercion merely on the issue of abortion, however. Their interpretation of the right to privacy developed as a result of changing philosophical perceptions about the nature of the individual.
For the better part of American history, Americans thought of themselves in a certain social frame, using a set of social values: hard work, morality, integrity, etc. These things were collectively called ‘character’ (Hixson 136). During the twentieth century however, the individual was no longer evaluated on the basis of his or her contribution to society. Principles of self-interest and personality were substituted instead. And with this concern for self-control and mastery came a compulsive fear of manipulation by outside forces (Hixson 137).
Americans began to worship the self and became preoccupied with keeping the sacred ‘personality’ unpolluted by non-self influences. All of this culminated with the people of the “Me” Generation, the infamously selfish baby-boomers. For many of them, the ideal of self-sacrifice for the good of whole was a strange concept. They revered private decisions, made with or without society’s consent.
It was in this atmosphere that the Supreme Court made its decisions. In addition to this general philosophical drift, American political culture of the 1960s and 1970s was troubled by both the Watergate scandal and the Vietnam War. Facing public social upheaval and public political impotence, Americans and their Supreme Court replaced their formerly sacrosanct civic lives with sacrosanct private lives.
The fact that the Supreme Court has yielded to the cultural mood is not an unimportant thing. Their rulings have consequences for the rest of the Constitution. Traditionally, the right to privacy had been attached to the protection of individual amendments, which dealt with property and scrutiny issues. Before Griswold, privacy was not viewed as right separate from the Amendments (Etzioni 204). But in discovering a stand-alone ‘right to privacy’ in Griswold, and then developing the idea into a right to autonomy in Roe v Wade, the Justices weakened the safeguards of privacy which are explicitly written in the Constitution. When ‘privacy’ is used as a catch-all phrase for a variety of different interests, its meaning becomes adulterated and its power is diluted. In his dissent from Griswold, Justice Black expressed concern that by replacing the Amendments with a shapeless, abstract concept like ‘privacy,’ the Court was turning the concrete protections of the Bill of Rights into an ambiguous idea, which could be shrunken or expanded at will (Hixson 77).
All is not lost, however. Americans have an instinctual orientation towards the right to privacy they actually possess, and not the manufactured autonomy rights the Supreme Court insists they have. A 1992 ACLU foundation survey indicated that Americans are still widely concerned with privacy, and support government action (regulation of autonomy,) in order to protect the right to privacy, ( freedom from inspection) (Regan 68). And things are changing at the Supreme Court too. Those decades-old Supreme Court rulings now have the widespread reputation of being analytical shams (Garrow 56). And the Supreme Court itself recognizes, to some degree, that many of its past privacy opinions were painfully contrived. Justice Clarence Thomas has a sign hanging up in his office. It reads: “Please don’t emanate in the penumbras” (Garrow 56). These things bode well for the future integrity of the true meaning of the ‘right to privacy’.
Bibliography
Bowers v. Hardwick, 478 U.S. (1986).
Eisenstadt v. Baird, 405 U.S. (1972).
Ely, John H. “The Wages of Crying Wolf: A commentary on Roe v. Wade.” Yale Law
Journal. 82 (1973)” 929.
Etzioni, Amitai. The Limits of Privacy. New York: Basic Books, 1999.
Garrow, David. “Privacy and the American Constitution.” Social Research. New York: Spring
2001. Vol. 68, Issue. 1; 55-84.
Ginsberg, Benjamin, Theodore J. Lowi and Margaret Weir. We The People: An Introduction to
American Politics. 4ed. New York: W.W. Norton and Company, Inc., 2003.
Gordon, Daniel. “Moralism, the Fear of Social Chaos: The Dissent in Lawrence and the Antidotes of
Vermong and Brown.” Texas Journal On Civil Liberties and Civil Rights. Winter 2003. Vol 9
Issue 1.
Griswold v Connecticut 381 U.S. (1965).
Hixson, Richard F. Privacy In a Public Society: Human Rights in Conflict. New York: Oxford University
Press, 1987.
O’Brien, David M. Privacy, Law and Public Policy. New York: Praeger Publishers, 1979.
Noonan, John T. Noonan, Jr. A Private Choice: Abortion in America in the Seventies. New York: The
Free Press, 1979.
Regan, Priscilla M. Legislating Privacy: Technology, Social Values, and Public Policy. Chapel Hill: The
University of North Carolina Press, 1995.
Roe v Wade 410 U.S. (1973).
Samar, Vincent J. The Right to Privacy: Gays, Lesbians and the Constitution. Philadelphia; Temple
University Press, 1991.
In America, privacy is an old idea, based on the way Americans have historically viewed themselves as individuals, their relationships with one another, and the state. Privacy is a central, pivotal part of what makes America the country it is today. In its authentic form, it is a fundamental American value. But the concept of privacy has been commandeered; its meaning manipulated to meet political ends. The Constitution explicitly protects individuals from government scrutiny. But this strictly observed rule has been weakened and diluted by attempts to establish a ‘right to privacy,’ a right based not on freedom from government intrusion, but from government regulation. The development of a new “right to privacy” has been encouraged by changing social attitudes, not social values. And apart from this tepid cultural support, the ‘right to privacy’ has a weak basis in constitutional law.
There is a fundamental difference between the ‘right to privacy’ in fact, and the ‘right to privacy’ as it has been applied in the U.S. Supreme Court. The right to privacy which is implied explicitly in the Constitution is a freedom from inspection, a guarantee of secrecy and anonymity where the public, and especially the government, is concerned. The ‘right to privacy’ which is not implied, either explicitly or implicitly in the Constitution, is that of a ‘right to personal autonomy,’ a freedom from government interference in personal decision making.
The difference is most clearly illustrated by how automobiles are dealt with under the law. The government regulates what can be transported in a car: there are laws against transporting guns and drugs in a trunk. These laws are examples of government placed limits on individual’s personal autonomy; they are regulations limiting people’s ability to choose what they wish to transport via automobile. However, the government is forbidden from randomly popping open car trunks in order to investigate compliance or non compliance with the law (Etzioni 210). The government may not infringe on an individual’s freedom from government scrutiny and public disclosure.
A right to personal autonomy is not, and never has been, a part of the Constitution. That is not to say that autonomy is an intrinsically bad thing. In fact, the American spirit of individualism supports the idea that people should think for themselves, make their own personal decisions, and keep their lives as free from government control as possible. But regulation of behavior, for the benefit of society, is part of the essence of good government. In fact, the government often limits autonomy by mandating privacy. Laws against public defecation, intoxication, and fornication all limit an individual’s ability to voluntarily wave their privacy (Etzioni 196).
In the centuries preceding the American War for Independence, Americans gave religious institutions were the right and the responsibility to interfere in private lives. ‘Disturbances of the neighborhood,’ (actions which contradicted the Puritan definition of the common good,) were routinely addressed in courts (Hixson 13).Government regulation of personal autonomy went so far as to forbid single living. Puritan opinion deemed living alone unsuitable because it was thought conducive to vagrancy, pauperism, and other social disorders troublesome to society at large (Regan 45).
That is not to say that Americans did not treasure their privacy. But privacy was an issue of respect and honor, not law (Hixson 14) Anyone who sought privacy would be permitted it. It was simply a matter of good manners. A care for privacy was also evident in the American public’s irritable reaction to the census of 1890. The census questions were denounced by the national press as invasive and impertinent, and aggravated citizens threatened a census strike (Regan 47).
Privacy has always been an American value, and has been a part of American legal tradition. But in the past, privacy was directly linked with a right to property. In cases involving a supposedly wrongful intrusion or invasion, property rights were the essential remedy (O’Brien 5). It was Samuel Warren and Louis Brandeis who, in a highly influential law review article, suggested that privacy was a right distinct and separate from other freedoms, including the right to property. They called it the ‘right to be left alone’ (Etzioni 189).
Calling privacy a right was, to begin with, a rather perilous thing to do. Rights tend to be absolute things; they cannot be justly denied, and regulating them is a complicated, difficult, and unpopular endeavor. But factum est illud, and the ideas of Warren and Brandeis were disseminated and made present in the minds of judicial minds throughout the country. At a time when cultural conditions permitted, Warren and Brandeis’ arguments would be used to establish, first, an independent right to privacy, and then, autonomy.
The time arrived in 1965, when the Supreme Court heard Griswold v Connecticut. The case involved a member of Planned Parenthood. She had been punished for breaking a state law which had forbidden her from disseminating information about artificial contraception (Samar 24). The Court ruled against Connecticut, establishing for the first time establishing a general right to privacy independent from specific protection from the Amendments. Justice Stephen Douglas based his concurring opinion on a ‘penumbra’ theory, by which a general right to privacy could be derived from a combination of several Amendments (O’Brien 178). Rights have zones, Justice Douglas argued. The first amendment’s ‘zone’ provided for not only a right to free speech but also, implicitly, fee association. And the First, Third, Fourth, Fifth, and Ninth Amendments created a zone which included a right to privacy (Griswold v Connecticut 479).
Those who dissented from the Court’s ruling were troubled by the lack of specificity in Justice Douglas’ argument. A penumbra is a remarkably abstract, indefinable thing. The dissenters also argued with the Court’s reliance on the Ninth Amendment for the discovery of a right to privacy. Justice Stewart held that the Ninth Amendment was not at all designed to guarantee specific rights to individuals. Rather, he argued, it simply expressed a truism, an acknowledgment that the federal government would be a limited one (O’Brien 184).Justice Black argued that, not only did the Ninth Amendment not guarantee any federally enforceable rights, its use by the Court to discover additional rights, including the right to privacy, exposed the American legal system to the risks of unrestrained judicial activism and abuse of judicial power (O’Brien 186).
What about Roe v Wade, the ruling made eight years following Griswold? Adding to Griswold’s mistake, it proposed the existence not only of a right to privacy, but a right to autonomy as well. In the decision, the Supreme Court ruled that a woman had a ‘fundamental right’ to an abortion. That right however, might be restricted in light of “compelling state interests” (Roe v Wade 163-165). The Roe ruling was “a very bad decision […] because it [was] bad constitutional law, or rather because it [was] not constitutional law and [gave] almost no sense of an obligation to try to be” (Ely 947).
The Roe judgment was in large part based on a misrepresentation of the Griswold case. There were, and are, two competing interpretations of Griswold. One interpretation held that the Griswold decision annulled an attempt by the state of Connecticut to regulate the decision to use contraception. In other words, state actions which interfere with intimate, personal decisions were declared unconstitutional. The other interpretation of the case maintains that what was declared unconstitutional in Griswold was not the government’s regulation of personal choice. It was the invasion of a private citizen’s anonymity, which was necessary to demonstrate compliance with the law, which made the statute illegal.
In their opinions, the concurring Justices of the Roe Court selected the former interpretation instead of the latter. This despite the fact that nowhere in his opinion did concurring Justice Stephen Douglas argue that unconstitutional government regulation was his reason for the Griswold ruling (Etzioni 208). The thrust of the Griswold decision was a rejection of the unacceptable government intrusion involved in enforcing the law, not the law itself. The Court, in using the case as precedence for Roe, ignored the evidence.
The Court’s ruling had the effect of supporting an imagined ‘right to privacy’ for women seeking an abortion. It refused to allow that a fetus might have the same ‘right to be left alone’, unmolested, in the womb. What is the justification for refusing the unborn the rights guaranteed to their parents? First, it is denied that fetus fits the definition of one possessing ‘life’. If the fetus posses ‘life’, then the Roe Court’s “compelling state interests” come into effect, and the choice to have an abortion might be regulated (Samar 200). Those who support the Roe ruling base their claims on ideas of ‘agency.’ In order to be eligible for protection by the state, a being must have a certain level of agency; the ability to take voluntary, purposeful actions (Samar 172). A fetus is completely dependant on a pregnant woman for support. It does not ‘choose’ to do anything in and of itself, and it does not make choices with a purpose in mind. Lacking status as an ‘agent’, a fetus is not entitled to fundamental rights, including privacy, life, etc. Of course, there is no way of knowing the condition of the consciousness of a fetus. But in the agency line of thinking, the burden of proof lies with those who would infringe upon a woman’s intrinsic and fundamental “right to privacy.”
There are degrees of agency; a healthy adult possessing a greater degree of agency than a newborn baby. And at what point does a human being reach the threshold of agency necessary to acquire fundamental human rights? Strictly speaking, there is no room for fundamental ‘human rights’ in this argument, only fundamental ‘person rights.’ If the agency of a human being is deemed great enough to merit the description of that human being as a ‘person’, then that being has ‘person rights.’ This assessment is dangerously subjective. There is, also, breathtaking arrogance and questionable wisdom in the suggestion that human beings can or should judge the personhood of one another.
The argument that the rights to life, due process etc. should be denied to fetuses is remarkably weak. But even if these concerns are set aside, the argument for a woman’s fundamental right to abortion cannot stand on its own. It is based on a theory of a right to personal autonomy, which, as has been discussed, was fictitiously built on shaky legal precedent. The Court’s ruling accepted, at least as a possibility, the ‘agency’ argument offered by those who supported abortion rights. By implying that a human being’s fundamental rights are conditional to the subjective judgments of other people, the Court opened a door through which implicit and explicit Constitutional rights may be unjustly denied in the future.
“Right to privacy” challenges to the constitutionality of state laws forbidding sodomy have also arisen. Are homosexual acts protected, private, lifestyle decisions? In Roe v. Wade, the Court affirmed a person’s right not only to protection from government inspection, but also to decision-making autonomy. If that decision’s deeply flawed rationale is applied to the issue, then homosexual acts are protected.
What about the alternative interpretation of Griswold v. Connecticut? That point of view holds that the Griswold decision did not imply a right to personal autonomy, but simply reiterated that state laws are unconstitutional if the level of government invasion necessary to enforce them is unacceptable. But even if this less stringent criteria is applied to the issue, homosexual acts are protected. The government can not enforce anti-sodomy laws unless it invades the privacy of a home, and discovers the crime in progress.
A possible ‘hole’ in the legal precedence exists in the differing rationales the Court relied on in making the Griswold decision. Justice Goldberg grounded the right to privacy in the Ninth Amendment, declaring that while homosexuality and adultery were sexual crimes, the intimacy between husband and wife was sacred, and the privacy of marriage had to be protected. (Griswold v Connecticut 499-507). Justice Harlan based his argument on the Fourteenth Amendment’s guarantee of “ordered liberty” and due process. His justification did not necessarily limit the ruling to marital relationships (Samar, 25). The different legal justifications the Court used to ‘discover’ the right to privacy in Griswold resulted in uncertainty about how the right to privacy should be applied in deciding later cases. For example, consider the arguments the Justices heard concerning Eistenstadt v Baird. Their decision stated that the statute challenged in the case treated married, and unmarried people differently. It therefore violated the Equal Protection Clause of the Fourteenth Amendment (Eisenstadt v Baird 446-445).
Justice Goldberg’s original opinion in the Griswold decision claimed that preserving the privacy of marriage was paramount, and this concern for privacy did not include the protection of homosexual acts. But ambiguities about the justifications for Griswold meant that when they heard Eisenstadt, the Court did not seem particularly vexed in extending the principles of the Griswold ruling to unmarried people, including homosexuals.
In 1986, the U.S. Supreme Court heard the case of Bowers v. Hardwick. Michael Hardwick had been arrested by Atlanta police, after they discovered him engaged in a homosexual act. The Court’s opinion denied any fundamental right to sodomy. And, echoing Justice Black’s concerns in the Griswold decision, it took a stand against the extension of the Fourteenth Amendment to include ‘new’ fundamental rights. (Bowers v. Hardwick, 190-191). Over-exercising the Due Process Clause, the Court warned, would have regrettable repercussions for the balance of power in American government. It would result in a powerful Judiciary ruling the country without constitutional authority (Bowers v. Hardwick, 194-195). More recently, however, the Court seems to have reversed itself. In 2003, in deciding Lawrence v. Texas, the Court declared that anti-sodomy laws violated the Due Process Clause and were unconstitutional. In overturning Bowers, the Court decided that the Bowers Court was simply wrong in judging the central problem of sodomy laws to be one of homosexual rights instead of privacy rights (Gordon 4). The Lawrence Court ruled, where privacy is concerned, homosexuals are protected.
Given the weakness of historical precedent to support a claim of a ‘right to privacy,’ what explains the Supreme Court’s behavior? It is possible that the Justices felt simply felt strongly that protection of personal autonomy should be part of the Constitution. With that in mind, “the Court knew the result it wanted to achieve and was not afraid to make the law conform to the desired outcome” (Ginsberg 620). Another contention is that, particularly in the Roe v Wade decision, the Court was subject to pressure from the press, and, in searching for a graceful way to succumb, stumbled upon a fictional right to privacy as a plausible justification (Noonan, 79).
The Court’s creation of a right to personal autonomy was not a result of political coercion merely on the issue of abortion, however. Their interpretation of the right to privacy developed as a result of changing philosophical perceptions about the nature of the individual.
For the better part of American history, Americans thought of themselves in a certain social frame, using a set of social values: hard work, morality, integrity, etc. These things were collectively called ‘character’ (Hixson 136). During the twentieth century however, the individual was no longer evaluated on the basis of his or her contribution to society. Principles of self-interest and personality were substituted instead. And with this concern for self-control and mastery came a compulsive fear of manipulation by outside forces (Hixson 137).
Americans began to worship the self and became preoccupied with keeping the sacred ‘personality’ unpolluted by non-self influences. All of this culminated with the people of the “Me” Generation, the infamously selfish baby-boomers. For many of them, the ideal of self-sacrifice for the good of whole was a strange concept. They revered private decisions, made with or without society’s consent.
It was in this atmosphere that the Supreme Court made its decisions. In addition to this general philosophical drift, American political culture of the 1960s and 1970s was troubled by both the Watergate scandal and the Vietnam War. Facing public social upheaval and public political impotence, Americans and their Supreme Court replaced their formerly sacrosanct civic lives with sacrosanct private lives.
The fact that the Supreme Court has yielded to the cultural mood is not an unimportant thing. Their rulings have consequences for the rest of the Constitution. Traditionally, the right to privacy had been attached to the protection of individual amendments, which dealt with property and scrutiny issues. Before Griswold, privacy was not viewed as right separate from the Amendments (Etzioni 204). But in discovering a stand-alone ‘right to privacy’ in Griswold, and then developing the idea into a right to autonomy in Roe v Wade, the Justices weakened the safeguards of privacy which are explicitly written in the Constitution. When ‘privacy’ is used as a catch-all phrase for a variety of different interests, its meaning becomes adulterated and its power is diluted. In his dissent from Griswold, Justice Black expressed concern that by replacing the Amendments with a shapeless, abstract concept like ‘privacy,’ the Court was turning the concrete protections of the Bill of Rights into an ambiguous idea, which could be shrunken or expanded at will (Hixson 77).
All is not lost, however. Americans have an instinctual orientation towards the right to privacy they actually possess, and not the manufactured autonomy rights the Supreme Court insists they have. A 1992 ACLU foundation survey indicated that Americans are still widely concerned with privacy, and support government action (regulation of autonomy,) in order to protect the right to privacy, ( freedom from inspection) (Regan 68). And things are changing at the Supreme Court too. Those decades-old Supreme Court rulings now have the widespread reputation of being analytical shams (Garrow 56). And the Supreme Court itself recognizes, to some degree, that many of its past privacy opinions were painfully contrived. Justice Clarence Thomas has a sign hanging up in his office. It reads: “Please don’t emanate in the penumbras” (Garrow 56). These things bode well for the future integrity of the true meaning of the ‘right to privacy’.
Bibliography
Bowers v. Hardwick, 478 U.S. (1986).
Eisenstadt v. Baird, 405 U.S. (1972).
Ely, John H. “The Wages of Crying Wolf: A commentary on Roe v. Wade.” Yale Law
Journal. 82 (1973)” 929.
Etzioni, Amitai. The Limits of Privacy. New York: Basic Books, 1999.
Garrow, David. “Privacy and the American Constitution.” Social Research. New York: Spring
2001. Vol. 68, Issue. 1; 55-84.
Ginsberg, Benjamin, Theodore J. Lowi and Margaret Weir. We The People: An Introduction to
American Politics. 4ed. New York: W.W. Norton and Company, Inc., 2003.
Gordon, Daniel. “Moralism, the Fear of Social Chaos: The Dissent in Lawrence and the Antidotes of
Vermong and Brown.” Texas Journal On Civil Liberties and Civil Rights. Winter 2003. Vol 9
Issue 1.
Griswold v Connecticut 381 U.S. (1965).
Hixson, Richard F. Privacy In a Public Society: Human Rights in Conflict. New York: Oxford University
Press, 1987.
O’Brien, David M. Privacy, Law and Public Policy. New York: Praeger Publishers, 1979.
Noonan, John T. Noonan, Jr. A Private Choice: Abortion in America in the Seventies. New York: The
Free Press, 1979.
Regan, Priscilla M. Legislating Privacy: Technology, Social Values, and Public Policy. Chapel Hill: The
University of North Carolina Press, 1995.
Roe v Wade 410 U.S. (1973).
Samar, Vincent J. The Right to Privacy: Gays, Lesbians and the Constitution. Philadelphia; Temple
University Press, 1991.
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