The Elusive Right to Privacy

By
Bob Ashly

January 30, 2006

The article that follows was written by Bob Ashby. Mr. Ashby is a resident of Holland, Michigan and his column appears in the Holland Sentinel the first Monday of each month. This particular article provides keen insight into It how freedoms Americans once cherished can be perverted into curses.

The Elusive Right to Privacy

There are few blessings in this life that cannot be perverted by human ingenuity into curses.

Wealth can feed and clothe the needy or, nourish and cloak agenda-driven self-serving politicians. Medical technology can richly enhance life or, provide ever more creative means and excuses for taking life from the unwanted or those who are deemed less valuable.

Privacy, in the modern sense, is a particularly peculiar blessing. Until the mid-1800s, there seems to have been little thought given to a stand-alone concept of privacy. In the United States, it wasn't until 1834 that the first fore-shadowing of a legal right to privacy surfaced through a Supreme Court opinion which mentioned the defendant's desire to "be let alone."

Over fifty years later (1890), future Supreme Court justice Louis Brandeis co-authored an article in the Harvard Law Review entitled "The Right to Privacy," which cited a "right to be let alone." It wasn't until 1928 that then Supreme Court Justice Brandeis had opportunity, through his dissenting opinion, to enshrine the "right to be let alone" as a foundation for the court's headlong rush into privacy-based rulings. By 1965 the Supreme Court was able to reason that guarantees in the Bill of Rights radiate shadows ("penumbras") of influences that give those guarantees "life and substances" and then "create zones of privacy." In that particular case, the zone was Planned Parenthood's "family planning" business. Over the next 20 years no less than thirty-two decisions mentioned being "left alone."

After 1965, creative law-making slowly accelerated. In 1973, in its worst example of jurisprudence since Dred Scott, the Roe v. Wade decision used shadowy radiations from the Bill of Rights to create a privacy right to murder unborn children. When Lawrence v. Texas was upheld in 2003, privacy became the instrument of perversion as the court created a right of sodomy.

There are some important lessons from this abbreviated history of privacy laws -- and some serious warning signs. From a developmental perspective, one thing is abundantly clear. Privacy law has not developed through democratic legislative process. Nor has it been driven by cultural evolution. Instead it has been initiated, supported, promoted and dictated by a tiny number of men and women steering from the nation's courtrooms. It began as an idea cited in a journal article. But by autocratic imposition, without the consent of the people, it is now touted as a constitutional right.

The long-term repercussions of adjudicating from shadows of constitutional text rather than the text itself are immense. For one thing, any written code can be morphed to support any desired outcome. The First Amendment protection of religion becomes the tool for eradication of religion from the public square. The protection of public discourse (the press) becomes a vehicle for slander and the spread of pornographic filth. The Fourth Amendment's prohibition against unjustified search and seizure becomes a license for sodomy, euthanasia and abortion.

As difficult as it may be to accept, liberty does not equal unfettered privacy and privacy does not equal unregulated liberty. A society so structured would promptly fall into chaos. The first essential principle for avoiding such a quagmire is a law-structure enforced within the integrity of its text, not one pitched to and fro from the shadows by the self-will of selected men and women.

The second and even more important realization must be that liberty, including conditions of privacy, cannot long survive outside the domain of a moral system of purity, accountability, righteousness and justice. The only way to understand and wisely apply such a system is to invest in its necessarily perfect Author. The entire history of privacy-related issues until 1965 actually involved protections of property or information but 1965's Griswold v. Connecticut took the fateful step of applying the infant concept of stand-alone privacy rights to a matter of conscience. In so doing, the court invaded the territory of the human soul under the foolish assumption that it could usurp the wisdom of God.

Privacy has never been a right unto itself. Instead, it is the natural result of other rights. It is a blessing from the Creator of liberty bestowed on free people who are willing to properly defer to Him who exercises perfect unbroken presence in all of man's hiding places and perfectly knows every action and motive of every person.