Sago Boulevard

Monday, August 01, 2005

Is Privacy a Right?

In Olmstead v. United States, Justice Louis Brandeis describes the right to privacy as he sees it:
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and his intellect…. They sought to protect Americans in their beliefs, their emotions, and their sensations. They conferred, as against the Government, the right to be left alone—the most comprehensive of rights and the right most valued by civilized men.

For Brandeis, it sounds like the right to privacy is a kind of foundation upon which all other rights depend. The following question then arises. If particular rights such as speech, assembly, and religion are enumerated in the Constitution, is it at all meaningful to talk about a right to privacy, per se? Timothy Sandefur of "Positive Liberty" says no: "I have never liked the phrase “right to privacy.” It is redundant. All rights are a right to privacy." Brian Radzinsky of "Stalinist Orange" adds:
It follows that "right to privacy" is a backward construction of sorts. Essentially, privacy is a manifestation of the permissions we enjoy and possess under those abstract things called "rights." Privacy stems from property as much as it stems from liberty. Its nature is determined by application, not inherency. Therefore, for example, if one is to buy a house and live in it, privacy stems from the right to be secure in that property. One's medical files are kept secret because their circulation might lead to an infringment of liberty, by being used in an unwarranted search for incriminating evidence.

If "privacy is a manifestation of the permissions we enjoy", then it's not quite redundant. What Sandefur should say is that all rights stem from a right to privacy. It's not a backward construction. The implied right to privacy justifies the 4th Amendment, not the other way around. The reason that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" is because the Founders assume a basic right to privacy.

Returning to my original question, if we have a 4th Amendment why do I need a particular right to privacy? Well, not every manifestation of privacy is foreseen in the Constitution. As both Sandefur and Radzinsky agree, privacy is implied by liberty. Simply put, it's the right to be left alone. S0 when the Constitution omits a particular instance of privacy, it's certainly acceptable to appeal to the generally implied right in applying constitutional values to new circumstances.