The Right to Privacy
There is some controversy over whether or not there is a Constitutional Right to Privacy. The Supreme Court has held that there was, and up until Roe vs. Wade there was little question about the legitimacy of that decision. After Roe people began inventing ridiculous and nonsensical arguments on both sides of the debate and just as some ‘scientists’ have claimed that life does not begin at conception some pro-lifers have claimed there is no Constitutional Right to Privacy. There was no debate about life beginning at conception prior to Roe, and little debate about the Right to Privacy. The arguments about these issues that have grown up since Roe show to what a degree even supposedly educated and intelligent people can befuddle themselves with nonsense when taking partisan sides.
The Right to Privacy clearly existed at the time of the Constitutional Convention. It is fundamental in understanding the discussion of taxation in the Federalist Papers. That discussion is virtually a quotation from Adam Smith’s “The Wealth of Nations”. It is useful to quote Adam Smith once more;
“The first tax of this kind was hearth-money, or a tax of two shillings upon every hearth. In order to ascertain how many hearths were in the house, it was necessary that the tax-gatherer should enter every room in it. This odious visit rendered the tax odious. Soon after the revolution, therefore, it was abolished as a badge of slavery.”
You will note that it was not the tax which was odious but the need to invade every room of the house, to invade the privacy of the homeowner to this degree which was odious. Think about teenagers in your own home. As children prior to privacy they are not nearly as sensitive to violation of their territory. Once puberty ensues, the right and need of privacy becomes much more acute. The authority to violate this territorial right implies a childlike or dependent status on the part of the person who is being denied this right.
The right to privacy was so well established in Common Law and Tradition that violating it might have led Kings to lose their heads. The Right to Privacy is implicit in the Castle Doctrine, a Man’s Home is His Castle, which is one of the cornerstones of English Common Law. Details of this Right to Privacy were incorporated in our Bill of Rights as in,
“Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”
and
“Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Supreme Court was absolutely right legally in maintaining a Right to Privacy implicit in the Bill of Rights on the basis of its historic existence in English Common Law.
This relationship is evident in the following quote from Justice White,
“2. There is no mention of privacy in our Bill of Rights, but our decisions have recognized it as one of the fundamental values those amendments were designed to protect. The fountainhead case is Boyd v. United States, 116 U.S. 616, holding that a federal statute which authorized a court in tax cases to require a taxpayer to produce his records or to concede the Government's allegations offended the Fourth and Fifth Amendments. Mr. Justice Bradley, for the Court, found that the measure unduly intruded into the "sanctity of a man's home and the privacies of life." Id.. at 630. Prior to Boyd, in Kilbourn v. Thompson, 103 U.S. 168 , 190 , Mr. Justice Miller held for the Court that neither House of Congress "possesses the general power of making inquiry into the private affairs of the citizen." Of Kilbourn, Mr. Justice Field later said, This case will stand for all time as a bulwark against the invasion of the right of the citizen to protection in his private affairs against the unlimited scrutiny of investigation by a congressional committee.”
It is clear that privacy was a mark of Citizenship and respect and the violation of privacy was a mark of slavery, dependence, serfdom, or a perpetual status as a non-person. It is also clear that since the odiousness of taxation mentioned by Adam Smith lay not in the taxes but in the violation of privacy that the right to privacy was more emotionally charged and stronger than the right to property. The right to privacy is plausibly tied emotionally to the territorial imperative.
The Right to Privacy doubtless falls under the later parts of Maslow’s list of Human Needs. In the same area as freedom of religion and self-actualization, I.e. “social needs, ego needs and self-actualization.” It is clear that in practice denying a person the Right to Privacy denies them the earned respect of others, esteem, acceptance as an equal, and the privacy to seek self-actualization. It is a strongly emotionally charged right. It actually protects the right to Freedom of Religion as a subordinate example of its practice. It is a primary right from which Freedom of Religion and Separation of Church and State may derive.
This supports and amplifies the previous discussion of Separation of Church and State. The State has a legitimate interest in regulating affairs between citizens, but the Church provides a private personally chosen moral authority and guidance in private personal matters in which the State has no legitimate business or say. It is the Right to Privacy which is the emotional and psychological fundament which makes Freedom of Religion and Separation of Church and state necessary and Natural Rights.
Since the Right to Privacy is so fundamental in protecting other choices such as those private moral choices normally made in accordance with religious preference, violation of the Libertarian Credo advanced by J.S. Mill “Over himself, over his own body and mind, the individual is sovereign” is a violation of the Right to Privacy as well as a violation of Separation of Church and State.