Disingenuous Care for Privacy Rights

Tibor R. Machan

Another nomination hearing is about to unfold before us and we can count on some of the central themes based on previous hearings. Conservatives on the Senate Judiciary Committee will throw a lot of soft balls at the nominee Samuel Alito, hoping that no one will succeed in branding him, well, a conservative. And perhaps in the case of supreme court nominees such labels aren’t what is crucial. What should count most, by all accounts, is how a nominee understands the role of a justice vis-à-vis the US Constitution. How will he or she read its various provisions? How expansive will he or she take government’s power to be? Will her or she see certain issues as properly federal and others as state or local so that the Tenth Amendment will be honored or will the nominee regard such concerns obsolete, even archaic?

But perhaps the most controversial matter that will once again surface during the hearings is whether the US Constitution contains the right to privacy, a right supposedly implicit in it, as modern liberals and some others read that document—for example, via the Ninth Amendment (which refers to unenumerated rights, thus intimating quite unambiguously that besides rights listed explicitly in the Bill of Rights, human beings have others, as well). It was on the basis of finding such a right that the famous decision was made that struck down the law banning the sale of contraceptives in Connecticut back in 1965. In that case, Griswold v. Connecticut, the Court held there is a general constitutional right to privacy so Connecticut may not institute the ban. In particular, Justice William O. Douglas identified a “zone of privacy” based on several amendments to the U.S. Constitution which supposedly guaranteed protection against governmental invasion of the homes and intrusion into the lives of citizens.

What is interesting to me about the concern with this right to privacy is how it has become the mantra of the American Left. And it is the American Right, lead on the Court by Justice Antonin Scalia, that has strong objections to it. Does this not strike anyone as paradoxical?

American conservatives have been identified as individualists, especially when it comes to their economic views. They used to champion capitalism and the right to private property. This right they identified in the US Constitution, especially the Fifth Amendment. When recently the Court ran roughshod over this right in its New London, CT v. Kelo ruling, the American Right still voice some protest. Indeed, their greatest hero on the Court, Justice Clarence Thomas, was in the outspoken minority wishing to uphold that right.

As to the right to privacy, we now have an American Left—which is notoriously anti-individualist and persistently demeans the right to private property—declaring fidelity to it and insisting that it is part of the fabric of the US Constitution. In political philosophy circles, for example, the American Left is constantly stressing that individualism is false, that people are not really individuals at all, that they are all social beings. Following Karl Marx, who declared that “the human essence is the true collectivity of man,” they insist (in the words of one of their foremost political thinkers, the Canadian Charles Taylor) that we actually “belong to our communities.”

Well, how then does the Left come off insisting on the right to privacy? I suppose the same way as it insists on the right to freedom of choice in the abortion rights debate—if it happens to suit its purpose, then let’s pretend to champion a principle. But don’t anybody dare apply the principle elsewhere—say the rights to privacy and freedom of choice in the economic spheres of our lives.

Sadly, with the conservatives seeming to have abandoned any loyalty to the philosophy of the American Founders, you aren’t likely to hear any of them on the Senate Judiciary Committee pointing out these glaring cases of hypocrisy.