American Government: The Right to Privacy

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Can the police knock down your door and walk into your room? Can they take your letters, diary maybe, private thoughts? If you are arrested, can you be forced to testify about your activities in some event that may be criminal? Are there any limits to what the government can do? Do you have any guarantees of privacy? What about our right to use your own body as you wish in the privacy of your own home? Can you engage in consensual acts with other adults in your bedroom? What about in a doctor's office? Now some answers to these questions are clearer than others. Some come from our history and traditions as a people.
In colonial America the colonists were very unhappy with the way the British and their troops would break down the doors of people, seize papers and the like, and the founders, when writing the Constitution and the Bill of Rights put in explicit protections for us - guarantees of our privacy, and protections from the government.
For example, the Fourth Amendment to the Constitution says that the government cannot just search our houses and seize our papers. There's a protection against unreasonable search and seizures. If the police think they need some evidence from us about a crime, they have to get a search warrant. That is they have to go to a court and say we, the police think you are guilty of a crime - we want to search for evidence, and this is the evidence - this is where you live, and they have to convince a judge to sign it. Only then can they come to your house and be let in legally.
The Fifth Amendment also protects us from being required to tell a judge about our activities. It's called the self-incrimination Clause. And we don't have to self-incriminate ourselves. Now it turns out, and this may surprise you that otherwise there are no guarantees of privacy in the Constitution. Privacy is indeed not even explicitly mentioned. However, throughout history, there has been a tradition in this country of some protections. You all know the saying that a person's home is his castle. Well, much of that has at it remains throughout American history. On the other hand, there's a mixed tradition. In the nineteenth century, there was a belief that well-regulated society was one in which there was a good deal of state control. Indeed there was regulations for the common good - for public safety, and for morality. For example, there were laws regulating sexual activity. You maybe surprised to learn that well into the century, and indeed, into the 1960s some places in 1970s. It was illegal for unmarried people, even adults, to have sex even in the privacy of their bedroom. The state prescribed what sexual positions you could use. Even today, it's illegal to take many drugs. And in every state or almost every state, it's illegal to commit to suicide.
Now laws changed slowly over the Twentieth Century, and the Supreme Court has found within the Constitution some increased privacy rights. In 1942, what came before the court was a literally amazing law from Oklahoma called the "The Habitual Criminal Sterilization Act." And what the people of Oklahoma thought was that if a person had committed three crimes - that involved what was called moral turpitude - particularly bad crimes - that that person might pass them on to children, and so that person needed to be sterilized. The court struck this down saying that people had fundamental rights, and among them were the rights to procreation, and no state - no government could take that away.
Then in 1965 there was a famous case called Griswold v. Connecticut. The state of Connecticut banned the use of contraceptives even by married couples. This was challenged by a married couple, and the court faced a dilemma. How could you strike it down? What protections were there in the Constitution? What the court held was that there were penumbras - you know that word of course you use it all the time in your language. I'm not sure I know what it means either. But there were penumbras that emanated from the Constitution that protected you. It means something like shadows. Let me read to you what Justice Douglas said. He wrote: "Specific guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees that help give them life and substance." And then he wrote, "various guarantees create zones of privacy." So within the Constitution were these shadows that came out of it. Within these shadows was a zone of privacy, and this zone of privacy protected a married couple's use of contraceptives.
Now there was a dissent - there were several dissents actually, and part of the dissent said I don't see this penumbra - I don't see this right of privacy. Let me read to you what Justice Black wrote in dissent. "I like my privacy as well as the next one. But I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific Constitutional provision."
The next important opportunity the court had to deal with came in 1972 when it extended this right of privacy to use contraceptives to unmarried people. Then in 1973 it heard the great abortion case, Roe v. Wade. This cased dealt with the laws of Texas, which were like the laws in most states, which banned women from obtaining abortions unless those abortions were necessary to save their lives. The court struck down the law and it did so by saying that there was a privacy right that came from the Constitution that allowed a woman, in consultation with her doctor to terminate a pregnancy at least in the first two-thirds of her pregnancy.
The court has also dealt with privacy rights in the area of gays. Our society is struggling with gay rights - with how we ought to treat gay men and lesbian women. President Clinton when he came into office in 1992 promised that he would end the ban on gay's serving in the military. He was unable to do that, and a political compromise was reached - they don't ask, don't tell policy. What that policy says is that the military will no longer ask a person if he or she is gay, and they are not required to tell. So, as long as their gayness - their sexual preference is kept secret they can serve.
A very important issue about gays is whether they can engage in sexual conduct among consenting adults in private. Until recently, most states have banned that. Homosexual relations were considered sodomy, and were made illegal.
In 1986, The Supreme Court heard a case called Bowers v. Hardwick. And the facts of this case are really quite revealing. A police officer was trying to serve a ticket on a young man who had not paid it - who had not gone to court - came to the house, knocked on the door, there was no answer - the door wasn't closed - just a screen so he went in, and he found two adult males making love in the bedroom. He arrested them, and they were convicted of violating Georgia's sodomy law. They appealed, and their argument was they had the right to privacy. They were in their own bedroom; they were adults, they had both agreed to share the sexual activity - that the right of privacy in the Constitution protected them. The Supreme Court disagreed. It said it did not. It said the right of privacy did not extend to gay, sexual relations, and that remains the law today.
Another area where privacy has come up has to do with the so-called Right to Die with physician-assisted suicide. Here the notion is that if you have any control over your body you ought to have the right to end your life. There are people in our country; unfortunately, who have terminal diseases. Maybe its cancer, maybe it's something else - who only have a few months to live, and who are in great pain. Some of them say I want the right to end my life - to end this pain - prolonging it makes no sense. Now the law in almost every state prohibits that. And in 1997, the U.S. Supreme Court heard two cases where people said I have a constitutional right to end my life. The court was unanimous in those cases. Voting 9-0, and the vote was the Constitution does not give you that right. It's important to note, of course, that that does not mean that state's can't adopt by legislation physician assisted suicide by saying there's no constitutional right the court is not saying one is prohibited from doing this - saying you can if you want. And indeed, in Oregon, the voters by ballot initiative in 1994 adopted a physician assisted suicide law, and they reiterated their support for that in 1997. If the court had come out the other way, and said there's a constitutional right to physician assisted suicide then no state would have been able to stop it. Now, by saying there's no right people who care about it, maybe you, maybe your friends can organize, try, and convince your state to allow it.
Now what do we then make of this melange - this mix of privacy concerns. Well, on the one hand, privacy is very important. The protection we all have from intrusive and abusive government is vital for us to be able to live our lives free from fear. And we need to be vigilant to make sure that remains in tacked. On the other hand, privacy is complex. We are debating what it covers, how far it should extend. Presently the Constitution covers some acts done in private, and not others. And to the extent, you are concerned about some of this, than you should be involved in helping our country, and all of us shape the debate about what is private and what should be protected, and what the government can regulate.
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