“The right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution’s protection of privacy.” -Harry A. Blackmun
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In light of conservative views concerning the right to privacy, many Supreme Court Justices have defended this so-called inherent right. Though the right to privacy is not explicitly written into the U.S. Constitution, U.S. Legal theory has come to recognize its existence over the past 220 plus years. The notion that the right to privacy is somehow new or somehow came into existence via the abortion debates stemming from Roe v. Wade is not only misleading, but ultimately deceptive.
Beginning with the Bill of Rights itself, the right to some semblance of privacy is indeed codified in our legal structure. The 4th Amendment right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” or the 5th Amendment right against being compelled to testify against one’s self is where the actual right to privacy stems under the American legal system. This legal argument continues to the 9th and 10th Amendments as many a civil libertarian and conservative have used to pursue a state’s rights argument.
Though he’s not as famous as Congressman Ron Paul, former Associate Justice of the U.S. Supreme Court Justice William Orville Douglas is a historically significant civil libertarian who pushed the right to privacy long before Harry Blackmun penned the Roe v. Wade decsion in 1973. Douglas is in fact the longest serving Justice in U.S. Supreme Court history and is noted for having a literalist interpretation that more resembles the modern conservative style of Constitutional Constructionism than that of an activist style often pushed by disciples of Chief Justice Earl Warren. In this mold, Douglas argued that a right to privacy was to be found in the ‘penumbras’ of the first ten amendments of the U.S. Constitution. Justice Douglas’s quote, ?We deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system,? sums up this argument well.
As Justice Blackmun endeavored on his research for the Roe v. Wade opinion in 1973, conservative forces were aligning against the decision as well as privacy rights. Since that time, many cases have arisen to more narrowly define abortion rights and debates concerning that right continue to rage on. Beyond the abortion debate however, the right to privacy should be considered fundamental, though it is all too often denied by conservative pundits in pursuit of an ideological agenda not based on any form of legal reasoning.
The cases of Jared Loughner and Dharun Ravi have come to stir conservative forces once again concerning the right to privacy. The suggestion that a student doesn’t have a right to privacy in his own dorm room as in the case of Ravi and his now deceased roommate Tyler Clementi is nonsensical. Though Clementi’s suicide cannot be charged to Ravi, an invasion of privacy and pursuant harrassment indeed is the issue.
Jared Loughner’s case has driven calls from some conservative pundits that his medical records ought to have been released to the public long before his rage filled attack on Rep. Gabrielle Giffords. This narrow-minded call suggests that the medical records be released of anyone who may commit a criminal act in the future. This type of standard is not only contrary to the constuction of our legal system, but is also dangerous. Such a standard would open the floodgates to all sorts of prior restraint and only serve to further advance the culture of fear that has pervaded American society for far too long.