by mamamusings

Most Americans consider privacy a fundamental national right. (Just ask anyone trying to administer the Census questionnaire.) When it comes to the phrase “right to privacy,” however, consensus suddenly goes out the window. This is because in 1973, the landmark case Roe v. Wade ruled that abortion was a private matter and thus constitutionally protected.

Since then, “the right to privacy” has become synonymous with “abortion” in the collective political unconscious – especially since asking a politician’s opinion on this right is a thinly veiled litmus test as to his or her stance on the controversial medical procedure. As a result, many people think of the right to privacy as a left-wing value. Considering its many other applications under the law, however, this is a very ironic assumption to make.

Without the right to privacy, people would be able to enter your home uninvited, record your phone calls, distribute your medical information, use your name and image without your permission, publicize your religious affiliation, and commit a host of other intrusions. For most conservatives – or anyone who doesn’t aspire to live in a 1984-style police state – these are all pretty much deal breakers.

The disagreement, then, is not over the right to privacy so much as its interpretation. And unlike most other controversial readings of the Constitution, this one can’t be argued on the basis of strict versus loose constructionism. According to strict constructionism, the constitutional right to privacy is… nonexistent, actually. That’s because the word privacy isn’t even in the Constitution, much less explicitly guaranteed by it. If you take the time to look over a Constitution summary, however, you will find that:

– The First Amendment protects your “free exercise” of religion, which has been interpreted to guarantee your religious anonymity.

– The Third Amendment protects your home from being “quartered” by soldiers, which has been interpreted as a defense against trespassers in general.

– The Fourth Amendment protects you against “unreasonable searches and seizures,” which has been interpreted as a defense against wiretapping.

– The Fourteenth Amendment protects your right to “life, liberty, and property” (emphasis on the liberty bit), which has been interpreted to facilitate a host of personal choices about marriage, procreation, child rearing, and the termination of medical treatment.

If the looseness of these interpretations surprises, bear in mind the wiggle room provided by the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This is founding-father speak for “and so forth,” giving us the additional right to, well, create additional rights.

Seeing privacy as an implied constitutional right is therefore a question of loose constructionism versus even looser constructionism. Some people aim for an interpretation of the Constitution that’s in line with what the founding fathers would have wanted (see also: oldschool). However, since this approach involves lots of guesswork and not so much in the way of consensus, the right to privacy will probably continue to be the confused lovechild of precedent, public demand, and the changing moral values of the time.