Forty-seven years ago in the Griswold case, the United States Supreme Court ruled that the First Amendment to the Constitution “has a penumbra where privacy is protected from governmental intrusion.” A “penumbra” is a shadow and seven of the nine justices argued that there’s a shadow of a right to privacy in the Constitution though privacy is never mentioned.
I think most people recognize the importance of privacy in our lives. In fact, I’d expect that nearly all of us would agree that privacy is a very fundamental aspect of our lives. Indeed, no one I know wants government to intrude into our private lives. We don’t want government agents rifling through our files or entering our homes unprovoked. That sort of privacy is procedural. It’s tied closely to our freedom of speech in that free speech allows us to collect our thoughts privately.
But the Griswold decision wasn’t about a procedural violation of privacy. Griswold concerned the rights of married couples to receive counseling through Planned Parenthood about contraception. The state of Connecticut then had a law prohibiting the use of any drug or article to prevent contraception. Connecticut convicted Planned Parenthood and the U.S. Supreme Court overturned those convictions.
The right to privacy was invoked a few years later in the Roe v. Wade case about abortion, and then later in support of anti-sodomy laws favoring homosexuality. Interestingly, a right to privacy is used by the Court to also recognize parental rights. The Constitution doesn’t say anything about parental rights and yet the Court affirms that not only do parental rights exist, but they exist because, among other things, parents have a right to privacy as it pertains to raising and educating their children. Governments can’t simply dictate how parents raise their children without good reason – so much so that parents are said to have a fundamental liberty interest in the education and upbringing of their children.
This kind of privacy is different than the other kind of privacy I mentioned. One is procedural and one is substantive. One says “stay out of my stuff” and the other says “stay out of my decisions.” Surely the two aspects of privacy are connected but not inseparable. For instance, your stuff might include some very bad things like child pornography. You don’t want government going through your stuff but government (“we, the people”) have a right of our own to enforce obscenity laws.
My point is that for most of our nation’s history people have agreed that privacy is important primarily because a right to privacy is earned. You’ve heard people say, “Why not let people look at your stuff? What do you have to hide?” Likewise, you might have said, “Look all you want. I have nothing to hide.” Whatever merits those points have or don’t have, both comments imply that you’ve earned the right to choose to let people look at your business or not. In other words, people who behave themselves have nothing to hide – such people earn the right of privacy.
Today’s right to privacy goes way beyond such procedural grounds. Today’s right to privacy isn’t about the rights we obtain through good behavior. The right to privacy today is more about protecting bad behavior. Most of the sexual revolution is protected by a claimed right to privacy. Do you want to abort a baby? Well, you can under a claimed right to privacy. Do you want to flaunt private sexual conduct? Just claim a right to privacy and you can. Do you want to watch pornographic videos or magazines? There’s a right to privacy for that.
The right to privacy is important, indeed essential, in a free society. But Americans have strayed a long way from the virtues of privacy. You know something has gone terribly wrong when the right to privacy is used to permit (and sell) very public, very bad, human behaviors. If those bad behaviors are so private, so sacred as experienced, perhaps those people really ought to keep their behaviors to themselves.
For Sutherland Institute, I’m Paul Mero. Thanks for listening.