If you read some of the überblogs on the John Roberts hearings, you’ll see a lot of talk about the right to privacy — which Roberts himself called “the so-called right to privacy” in an internal memo when he was a young, bright-eyed legal turk in the Reagan administration.

So what is the average American to think? To most Americans — who, contrary to popular belief, are not lawyers — a “right to privacy” means a right to be able to close the door on governmental snooping, the right to private lives. And in that much, they are right.

But what the average American may not realize is that when legal eagles talk about “privacy,” they’re also talking about liberty — the right to do what one will without governmental interference or control.

Q: Should the government be able to peek at your library card?

A: “Gee, maybe, if it helps them catch bad guys.”

Q: Should the government be able to control what your doctor can and cannot tell you in the doctor’s office?

A: “No way! My doctor should be free to tell me everything I need to know.”

In other words, sometimes “privacy” is just privacy, and sometimes “privacy” is liberty.

When language gets in the way

Talk to the average American about privacy, and they’re going to think about provisions in the Patriot Acts to “sneak and peek” in efforts to find terrorists. Many Americans have wholeheartedly endorsed invasions of their privacy — in part because of delusional beliefs that by giving up their privacy they’re somehow safer (but which Americans were involved in 9/11?), and in part because they really are not aware of how these governmental powers can be abused. (Consider how Alberto Gonzales’ defense of the Patriot Act this summer focused on how the people in law enforcement weren’t going to abuse the law, which is a tacit admission that these laws were easy tools for abuse, and how many Americans just shrugged, as if that justified it.)

Yet when the pundits and politicos in the blogs and mainstream media drone on about privacy, most people probably think they’re talking about their library records, and most of them probably couldn’t give a shit.

The thing that all the privacy talk misses — and the essential matter of which Americans should be aware — is that when legal eagles talk about privacy, they aren’t talking about the government reading your emails but about the government controlling your liberty.

Griswold and privacy, Griswold and liberty

Legal eagles like to focus on privacy because that’s a right established in Supreme Court precedent more than 40 years ago, in a case involving (shocker of shockers) availability of birth control to married couples:

An 1879 Connecticut law (originally written by P.T. Barnum, of circus fame) forbade any use of contraception or the assisting of anyone seeking contraception. The statute held that any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.

This statute was challenged and first reached the Supreme Court in the 1961 case, Poe v. Ullman. The Court dismissed the claim of a doctor and his patients that the Connecticut law denied their Fourteenth Amendment Due Process rights, on the ground that the plaintiffs lacked standing to sue because the law had not been enforced in many years. In Poe v. Ullman, Justice John Marshall Harlan II wrote one of the most-cited dissenting opinions in Supreme Court history, arguing for a broad interpretation of the “liberty” protected by the Due Process Clause.

A few months after the Poe decision came down, Estelle Griswold opened a birth control clinic in New Haven, Connecticut, Planned Parenthood League of Connecticut, to dispense contraceptives, in order to test Connecticut’s law once again.

Griswold, the Director of the Planned Parenthood League of Connecticut, and C. Lee Buxton, a physician who served as the Medical Director of the League, were arrested and charged with aiding and abetting the commission of this crime under the Connecticut statute.

After a trial, they were found guilty as charged as accessories for giving a married couple information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device for the wife’s use and appealed the case.

On appeal, both the Appellate Division of the Circuit Court and the Connecticut Supreme Court affirmed the judgments of conviction. The Connecticut Supreme Court concluded that the conviction of Griswold and Buxton was not an invasion of constitutional rights. Griswold and Buxton appealed their case to the United States Supreme Court.

This wasn’t just about privacy. The heart of the matter was about liberty. Estelle Griswold was being prevented by the government from providing contraception information and assistance to a married couple.


By the government.

The legal precedent is focused on “privacy.” But in ordinary language terms, the real matter is government restraint upon liberty. Freedom.

The American value of freedom

America stands for freedom. We learn that in grade school. We hear it every day from our leaders. Any American with but a grain of idealism in his or her heart is going to believe it to some extent, no matter how badly we and our government manages to fuck up its execution.

America. Land of the free.

What is at stake is not “privacy” in the pedestrian sense, but our very liberty, our very freedom to live our lives without excessive government interference.

Consider this statement by advocate Nancy Keenan:

Tomorrow, John Roberts, President Bush’s nominee to Chief Justice of the United States, has an opportunity to give the public clear and direct responses to essential questions on fundamental freedoms, such as the constitutionally protected right to privacy. But will Americans get the straight answers they deserve? A troubling theme emerging from today’s remarks included a number of anti-choice senators seemingly laying the groundwork for Roberts to evade or refuse to answer questions.

This is inappropriate and contrary to the very purpose of these hearings. The debate must not focus on what questions Roberts can avoid answering. The American people want Roberts to give clear and candid answers on whether he believes the Constitution includes protection for our privacy. They want to hear more from the man who, if confirmed, would become the most powerful judge in the nation. Roberts must explain why he dismissed a fundamental liberty as the “so-called `right to privacy.'”

What she is talking about is not “privacy” in the sense of the common understanding of privacy — whether the government can know what you’re up to — but rather “privacy” in the sense of freedom — whether the government can control what you do.

The “right to privacy” when it comes to reproductive rights is about a right to liberty, a right to free determination, a right to control one’s own body.

If the government reaches into a woman’s body and seizes control of her womb and forces her to carry a pregnancy to term, forces her to remain pregnant until a baby is born and a new person exists, this is not just an invasion of privacy — this is an abrogation of the woman’s liberty. The government has made her into a slave to the government’s breeding laws.


So to all you non-lawyers out there, when you hear “privacy” in the hearings and read “privacy” in blogs and diaries written by legal eagles, do the translation in your head: “privacy” means liberty.

Your liberty. Your freedom.

Cross-posted from mediagirl.org

(Updated to correct a name typo in Alberto Gonzales’ name.)

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