Current events, particularly the Alito confirmation hearings and their emphasis on abortion, as well as the National Security Agency's surveillance program have focused on issues of privacy. It would appear that there is a popular misconception as to what exactly privacy is and what purpose it serves in a society.
The right of privacy is in fact an incident to the necessity of citizens in a society having to interact with one another. Being able to function in society requires a person to have at least come control over the image he or she presents to others. This is obvious in the case of business persons who must come across as trustworthy and capable. It similarly pertains to politicians, educators, journalists, physicians and many others whose occupations require the public to maintain at least a presumption that a person is of a certain character.
This principle is the basis of laws against libel and slander, which recognize that a person’s reputation is an indispensable part of his or her ability to function as a member of a society. The right of privacy is recognition that a person should maintain some control over the image that he or she presents to one’s peers.
Human nature leads us to form biases and jump to conclusions about our fellow citizens based on the scantest of evidence. We may form an opinion about a man’s truthfulness by being informed of his sexual appetites, or feel justified in holding his quirks against him. There is natural temptation to color our opinion of a judge’s objectivity if we were to know how he carries on with the au pair. We might look elsewhere for our healthcare if we were privy to the insensitive things our doctor says to his wife. We generally do not know enough about any of our acquaintances to form complex opinions about their character, and having access to glimpses and fragments of these person’s lives tends to exacerbate rather than relieve this shortcoming.
Furthermore a man should be free to experiment in his own thoughts; to have a sanctuary for the expression of his ideas without fear that a capricious impression of those ideas may lead to his ruin. Respect of a man’s papers and effects is no more than a declaration that we will not condemn a man for thoughts that he would otherwise keep to himself.
Privacy is therefore a means of allowing citizens to function as individuals within a society. Privacy also touches on the concept of dignity. There is certainly an element of propriety about minding one’s own business, and this arises from the notion that we often cannot know enough about our neighbor to judge him fairly. Recognizing a right of privacy allows a society to declare a simple element of common decency and fairness.
What we modernn Americans have done however is to confuse the concepts of privacy and liberty. We have adopted the mistake belief that privacy arises from some altruistic impulse within the state. We have been help along in this misconception by the American Courts.
The notion of privacy and the judicial construct of the “right to privacy” are inextricably linked with American concepts of sexual conduct. This linkage is so accepted, that we fail to notice that it is based on an ambiguity and a logical fallacy. When the Supreme Court recognized the “right of privacy,” it was not in fact referring to privacy, but to liberty. The notion of preventing legislative action in matters of sex and reproduction was introduced by Justice Harlan in 1961 with his declaration:
I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual¹s personal life.
This statement is much more intuitive when phrased without reference to privacy:
I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable restriction on the conduct of the most intimate concerns of a person’s personal life.
What Justice Harlan’s statement does is to refer to privacy when he means liberty. In doing so he makes use of an ambiguity that is best illustrated by the slogan “What I do in my bedroom is my business.” Privacy refers to “my business;” liberty is concerned with “what I do.” By interchanging the two, our Supreme court sent American jurisprudence on a detour through specious reasoning from which it has yet to emerge.
Later Jurists built on Harlan’s premise of “an intolerable and unjustifiable invasion of privacy” to find a general right of privacy in the Constitution. In so doing they made use of a logical fallacy of assuming that which is to be proven. The argument is circular: The Constitution contains a right of privacy regarding reproductive matters because statutes regulating those matters would violate the right of privacy. The right of privacy must be assumed as a condition of its being found.
More recently, the Court has abandoned its quirky view of privacy and begun to discuss matters in the more appropriate language of liberty. Justices Kennedy, O’Connor and Souter waxed responsible with their declaration in Planned Parenthood v. Casey:
Our obligation is to define the liberty of all, not to mandate our own moral code
An interesting intellectual exercise is to try and explain why the Supreme Court avoided using the language of liberty for forty years when talking about government involvment in sexual practices.