Wednesday, September 14, 2005

"Privacy" also means privacy
Twenty years ago, when Robert Bork said there is no right to privacy in the constitution, many people--right and left--were shocked. While most people believed that other people shouldn't claim the right to privacy to hide their doing bad things, most believed that there is a right to privacy, at least for themselves. Hearing it said so bluntly made us take pause.

Since then, the movement conservatives have waged a war on privacy by indoctrinating the faithful to believe that the word "privacy" is just a liberal code word for sexual immorality. "Privacy" means promiscuous women killing their blastocysts, sodomites doing the santorum, teenagers fornicating, cohabitation, and married couples having sex for fun. Since they want to stop all of these things, destroying the shield of "privacy" seems to be the right thing to do.

Liberals have supported the proposition that "privacy" means sex by limiting their defense of privacy to women's reproductive freedom, access to birth control, and gay civil rights. From a short-term tactical perspective, this makes sense. When "privacy" comes before the Supreme Court, it will not come as a broad philosophical issue; it will come as the application of an abstract right to specific issues, like women's reproductive freedom, access to birth control, and gay civil rights.

The problem with the conservative message and the liberal tactical response is that "privacy" also means privacy. The right to privacy is not a product of the sexual revolution of the sixties as many believe. Legal scholars described the unenumerated right to privacy in the 1890's and it was recognized by the Supreme Court during the generation that followed. In a 1928 decision (Olmstead v. the U.S.) Justice Louis Brandeis called privacy "the right to be left alone, the most comprehensive of rights and the right most valued by civilized men." He went on to say, "To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."

The right to privacy lies behind our right to read the books we want, to eat what we want, to hold unpopular and unfashionable opinions, to attend the church of our choice, or not to attend any church. The belief that we have a right to privacy is what animates us when we feel compelled to say "none of your damn business" to busybodies. It is the essence of totalitarianism that the state claims to have a right to intrude in all aspects of a citizen's life, to totally control them. Privacy, the right to wall a part of our life off from intrusion, is the most complete denial of totalitarianism that our constitution affords.

Today, the issue of privacy is at the center of the John Roberts confirmation hearings. Unfortunately, the conversation appears to be primarily limited to "privacy." While the specific issues of women's control over their bodies and sexual privacy are important, they can't be fought without consideration for the larger abstraction of privacy. Privacy itself needs to be defended.

By making privacy a synonym for sex, we have allowed a non-partisan issue to become partisan. But both sides of the aisle have an interest in the greater right of privacy. If the conservatives allow that right to be destroyed in the name of policing sex, they will come to regret it. They will regret it when liberals start policing their child rearing practices. They will regret it when insurance companies and HMO's start policing their dietary and exercise habits. They will regret it when the whole world has access to a record their reading, gaming, and television choices.

We all want privacy. We should all defend privacy.

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