Saturday, January 14, 2006

The Right to Privacy Test

The lonely libertarian has strategically avoided most of the Judge Alito confirmation hearings- listening to Democrats scream for answers they don't really want the answers too while Republicans scream equally as loudly about harassment is hardly my idea of a good time. As always, abortion and the right to privacy has been a subject of discussion. (At least from what I've heard.) Add in to the equation the ever looming presence of all the issues raised by the Patriot Act and the War on Terror, and the phrase "the right to privacy" is ever present in the lexicon of today's "informed citizens."

I've blogged about the right to privacy before- Basically, despite however much I may personally like the idea of a right to privacy, there is no real Constitutional basis for the premise. Most use of the term "right to privacy" is strictly political. It's about supporting abortion rights and any other number of specific agendas and not about supporting any true right to privacy.

Observe here, with the lonely libertarian's very own right to privacy test:

If you believe in a Constitutional right to privacy, please explain, on a philosophical level, which of the following are protected by a right to privacy and which of the following are not protected by a right to privacy. Explain your answers for each, and if your answers differ from each other, explain these differences. (For example, why would a right to privacy protect #2, but not #3?) This is not an exercise in Constitutional law, but an exercise in logical thinking.

1) The right to engage in sexual activities with a consenting adult in the privacy of your own home.

2) The right to purchase contraception.

3) The right to purchase sexual companionship in the privacy of your own home.

4) The right to produce and use drugs (such as marijuana) in the privacy of your own home.

5) The right to purchase drugs (such as marijuana).

6) The right to obtain a medical procedure (such as an abortion) from a doctor.

7) The right to obtain a medical prescription for pain relief (for a drug such as marijuana) from a doctor.

(For those of you with a favorable view of marijuana, replace marijuana with heroin or cocaine and see if it changes your answers.)

8) The right to make a private phone call overseas.

9) The right to receive a phone call from an Al-Qaeda operative from overseas.

If you think a right to privacy protects all of the above examples (except for perhaps #9), than you truly are a libertarian. If there was a right to privacy in the Constitution, I think it would have to protect the first eight of the above rights. And believe me, I'd be very much in favor of such Constitutional protections, but the fact of the matter is, it's just not there. Playing out this exercise makes that painfully apparent.

The point of this exercise is to demonstrate that a true right to privacy is an extremely libertarian sort of right- one that a vast majority of the American public would not be in favor of. How do you protect some of these rights and not all of them without placing moral restrictions with legal force upon the individual choices of others? (Choices that stand to harm no one but the individual making them.)

The additional point is that none of the issues in regards to the war on terror have any real connection with any right to privacy. They are procedural issues dealing with the 4th Amendment (Search and Seizure issues.) It is quite obvious that any right to privacy does not provide protection for otherwise illegal action. The right to privacy prevents certain activities from being criminalized in the first place.

Those who seek to protect the precedents of Roe (abortion), Griswald (contraception), and Lawrence (sexual privacy in the bedroom) while at the same time limiting the meaning of a right to privacy are engaged in quite an uphill battle, at least in a philosophical sense. It's also interesting that any discussion of privacy rights only refers to criminalization. There is never any discussion of why the government should have any role, even a regulatory one, in what is a "private matter." But that's just it: privacy is a political term, not a legal one, and it does libertarians no good to jump on a privacy band wagon that beneath the surface reveals a gigantic philosophical disconnect.


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