The Invisible Primacy of Privacy - John C. Wunsch, P.C.
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The Invisible Primacy of Privacy

Does the right to privacy explain many, perhaps most, constitutional guarantees? Is the First Amendment nothing more than a privacy right to freely express ideas? Is the Second Amendment nothing more than a privacy right to keep and bear arms? Is the Equal Protection Clause nothing more than a privacy right not to be subjected to government discrimination? Is the Fourth Amendment nothing more than a…well, you get the idea.

So why is privacy so crucial to a free society? Why does this concept keep surfacing in case after case in a variety of contexts?

Privacy is a form of protection.  Privacy works as an invisible shield, preventing intrusion into one’s private space. Intrusions can be harmful and disruptive, and they occur without consent. And even in those rare instances where intrusions are well-intentioned and seemingly benign, they still cross boundaries without invitation, and thus constitute a trespass.

Privacy provides the space within which to grow, to breathe, to live. Space surrounds every living thing, and it’s within that space where life flourishes. Space is life-giving, life-enhancing, the precursor to free movement, thought, and expression. Once that space is no longer protected, it’s subject to manipulation and control by others.  And this “other” may have harmful or adverse motives.

Privacy constrains power.  Many writers put power––its acquisition, exercise, and potential for abuse––in a special category, and for good reason.  Power equates to dominion over others, and that control, if abused or exercised unmindfully, diminishes one’s sense of personhood. When power overrides the rights of the individual, it’s almost as if one is no longer fully human. Privacy seen in this sense is a necessity, as essential to life as water and oxygen.

“This development of the law was inevitable,” wrote Warren and Brandeis. “The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.”[1]

Decades later Justice Brandeis, in his Olmstead dissent, echoed his own insightful words when he wrote: “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.”[2]

Today we take for granted the invisible primacy of privacy. Privacy is a mysterious, almost mystical, component of a person’s identity. When all else has been pared away, it probably explains more than can be described. Defend it, guard it, cover it in impenetrable armor––bearing the weight, supporting it all invisibly, it’s not a reason, it’s the reason.

[1] Samuel D. Warren, Louis D. Brandeis, The Right to Privacy, Harvard Law Review, Vol. 4, No. 5 (Dec. 15, 1890) pp. 193-220

[2] Olmstead vs. United States, 277 U.S. 438, 478 (1928)(Brandeis, J., dissenting).

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