Privacy Is A Constitutional Right
This is not a zen koan. It’s a simple distinction. The Ninth Amendment says:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This recognizes, without naming the existence of other rights.
Now, note the language, “retained by the people.” There are two implications here, one liberal, the other conservative. The liberal idea is that rights reside with the people. Not just with certain individuals or groups, but with the people as a whole–rights are social products. Some groups or individuals surely need those rights defended much more than others. Their struggles may be exemplary or prototypical in this regard. But the rights themselves are ultimately universal in extent within the whole body of the people.
The conservative idea is implied by the word “retained”–i.e. that they are pre-existing, and thus that no new rights may emerge. A “plain reading of the text” might lead one to believe this conservative reading. But that’s precisely what’s wrong with blindly embracing textualism.
Even at the level of pure textualism, for example, it’s unclear whether “retianed” refers to specific unnamed rights, or to rights in general as collectivity, whose ranks may swell over time–just as the ranks of “the people” does. Usually, a “plain reading of the text” just isn’t possible. These sorts of ambiguity permeate all human language. This doesn’t mean we should ignore the specific wording. It does mean we have to consider it thoughtfully along with a good deal else–such as the lived reality of people’s lives, which is the cauldron out of which new rights come to be asserted, articulated and recognized.
This is precisely what has happened with the right to privacy. It was present in the Constitution in a rudimentary form, in protections against the sorts of invasion that the American people suffered at the hands of British troops and other agents of the Crown. But the robust modern notion of privacy did not really exist then.
In her book, Private Matters: In Defense of the Personal Life, Janna Malamud Smith (a psychotherapist and daughter of novelist Bernard Malamud) provides fascinating insights into the various ways in which our modern notions of privacy emerged over time, primarily through major changes in the 19th Century.
The NYT Review of her book concluded:
Much of the book is an anecdotal history of the shift from one cultural sensibility — “rural and traditional, communal” — to another: “urban, modern and separate.” There is the story of an abashed and solitary Robert Louis Stevenson, who had to share a room with a communally oriented married couple in a tiny hotel in a French village. There is the story of the adultery trial of the Rev. Henry Ward Beecher in 1875, not only a prototype for all subsequent public scandals but the original opportunity for the press to “compensate for the loss of personal surveillance once possible in small towns.” There is a chapter in which Dr. Jekyll meets Freud (just tell me everything that comes to mind), and another on Bill Clinton and Presidential privacy. “Private Matters” is what anthropologists call “thick description” at its best.
Thus, her book underscores the fact that so-called “strict contructionists” would have us live according to the rules of a cultural sensibility that is utterly foreign to us now–and regard that as the perfectly natural default assumption. In contrast, liberal jurisprudence is based on the notion that we should consider a wide range of factors in trying to make constitutional judgments. In short, our jurisprudence should seek to be as rich as our lives, in order to not unduly restrain them. And this is a sample of what Malamud Smith has to say about that richness and its significance to us:
All the disparate issues of privacy–whether I can listen in on your telephone conversation, whether you can publish the love letters I sent you, whether I can find out your credit rating, whether you can test my urine for drugs before you hire me, whether I can prohibit your abortion, whether you can keep me alive in spite of my wish to die, whether I should write about you or talk about you on a talk show–represent battles about power, money, values, and the elusive concept of “the common good.“
We need to find our way through these issues because the qualities of humanness that make life more than a biological event–creative and artistic expression, intellectual endeavor, sacred rituals, love and intimate sexuality, friendship, and individual dignity–are qualities that must be sheltered to thrive. Privacy shelters, and thus offers sustenance to fragile virtues.
Privacy also supports freedom to make important personal choices. If you are an Irish Catholic woman and you marry a Muslim Ethiopian man whom you love, your choice may have hurt your mother and father, caused the other members of your church to curse you, and angered your neighbors. But you have made a private choice that has come out of your own feelings and wishes. Historically, what you have done is new; until recently such gestures would often have subjected you to either isolation or persecution.
That is what you won’t find in the Constitution. But it is very much a Constitutional right.
