WILMINGTON, DELAWARE - JANUARY 07: Federal Judge Merrick Garland delivers remarks after being ... [+]
The concept of privacy is an absolutely fundamental pillar of American society. At least, it feels that way. What could matter more to a teen, for example, than the sanctity of her bedroom? It’s reasonable for workers to expect limits on any tracking from their employers, or security for social media users who’ve carefully adjusted their privacy settings. And, at the most basic level, privacy concerns “the right to be left alone by the government,” in the words of U.S. Supreme Court Justice Louis Brandeis.
The reality is quite different. Parental authority nearly always overrides a minor’s right to privacy. A recent New York Times article sheds some unsettling light on the pervasiveness of employee monitoring. Likewise, your social media privacy can only be secured so much.
But even so, many Americans believe that we have an inherent right to privacy. Why is that? What is the basis of this belief?
A starting point is found in the final clause of the Fifth Amendment, which states that your own private property can not be for public use without your consent and/or reasonable compensation. That is the totality of explicit affirmation of ‘privacy’ in the U.S. Constitution. So, are we just banking on our presumptions here?
The goal of asking these questions is not to dismantle our right to privacy. On the contrary, we need to understand the basis of its inclusion in the Constitution to keep it. In other words, you must know what you are entitled to in order to have a sense of your privacy rights.
A review of the concept’s appearances in The Constitution can help us better understand the scope of privacy in hopes that we stop making false assumptions and rightfully claim the privacy we deserve.
The Constitution
There are some who reject any form of constitutional interpretation. But unless you feel that the protection of private property in the Fifth Amendment is sufficient for all your privacy needs, going beyond the written words is necessary.
Let’s start with three segments of the Bill of Rights that can be interpreted as providing a right to privacy. It can be argued that it goes beyond just three, but these passages were considered fundamental by the original U.S. Congress and are thus worth exploring.
The First Amendment can be construed as the right to a ‘Privacy of Beliefs.’ Basically, you have the right to say and practice your beliefs. But for this to happen, you need your own convictions and opinions that are not forced upon you by the government. In this sense, we understand ‘private’ as akin to ‘personal.’ For the literal ideologies within the First Amendment to be valid, you must first have a right to the privacy of your own conscience.
The Third Amendment protects your home from forced military “quartering” without your consent. This protection more literally relates to privacy than the above, but there is still some interpretation necessary to go beyond stopping soldiers from sleeping in your bed. Everyone should be safe in their home from any intrusion, including the military or law enforcement. Here, we understand ‘privacy’ as ‘security.’
So far, the Constitution protects our right to have personal beliefs and home security and we are starting to get a clearer picture of why Americans feel so strongly about general privacy.
The final area within the Bill of Rights that appears to provide a right to privacy is the Fourth Amendment. This protects our homes and selves from unreasonable searches and seizures. How does this relate to privacy?
The key word here is unreasonable. As we have recently seen, even a court mandated warrant to search and seize can be viewed by some as unreasonable and open to challenge. In other words, there is a trust gap. Without confidence in the rule of law, any government actions can be viewed as an attack on privacy.
What is central to this Amendment - and the Constitution in sum and substance - is trust.
The Connection
We now have a basic understanding of what privacy means in The Constitution. It is a twofold relationship of trust: between citizens themselves and between citizens and the state.
What must be noted here is that privacy according to The Constitution is not merely an individual protection. Instead, it is for the good of civil society.
Privacy is understood via relationships, thus necessarily needing multiple parties to be maintained. We have hitherto understood privacy to be an independent concept, meaning it relies on no one else. We now see that privacy is actually a dependent concept. Without trust between citizens and their state, there can be no privacy. Individual privacy is reliant on the whole.
The founding fathers were well aware of this.
