No Right to Privacy?
With a robust "Santorum surge" underway, we will soon witness a thorough public airing of his past views and statements. While some of Santorum’s socially conservative opinions have been wildly exaggerated in the press, there is one that I can’t seem to square with the notion of individual liberty: the lack of a “right to privacy.” I am referring specifically to the right of adults to engage in mutually consensual behavior in the privacy of their own home: acts such as premarital sex, fornication, and sodomy, not abortion, rape, bestiality, gay marriage or polygamy.
Santorum’s view that there is no constitutionally-protected “right to privacy” most famously emerged in a 2003 interview in response to the Lawrence v Texas case which declared sodomy laws unconstitutional. Although that interview would later be parodied for his somewhat non-sequitur “man-on-dog” quip, the more revealing quote came just before that:
We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose.....
The idea of the "right to privacy" is that the state doesn't have rights to limit individuals' passions. I disagree with that.
It is one thing to argue that sodomy laws may be constitutionally enacted, but another entirely to argue that they should be, and Santorum is clearly in the latter camp. Even Justice Thomas, who dissented in the above case, stated that sodomy laws, while technically legal, were “uncommonly silly”.
How are prohibitions of sodomy, fornication or premarital sex at all compatible with the notion that individuals make better decisions than the state? I understand that the government need not sanction such relationships with privileges such as marriage or tax benefits. But these laws use police power to prohibit non-commercial, uncoerced behavior which is confined only to those who practice it. If ever there was a definition of the personal liberty which America exists to defend, is it not this?
And where is the intellectual boundary to this concept? Majorities in previous generations decided that sodomy and fornication were immoral; can reading The Way Things Ought to Be at home become prohibited when a majority of Massachusetts voters decides that Rush Limbaugh is immoral?
We may soon see this debate played out on the national stage, with the requisite hyperbole and exaggeration which is part and parcel of our contemporary media culture. Before this happens, I would be interested in hearing a more sober defense of this opinion from those on Ricochet who agree with Santorum on this point.
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Mar '11
Re: No Right to Privacy?
I'm thumbing through a copy of the Constitution (doesn't take long) and I can't find the "right to privacy" clause.
But seriously.
Nonenforceable laws like those that Justice Thomas referred to are indeed silly, which makes the notion that Santorum would propose more of such laws equally silly. Don't mount a red light outside over your door and you will probably be safe from the sex police.
Seriously.
Aug '10
Re: No Right to Privacy?
Saying a law is "there for a reason" is not the same as saying that a law "should be there".
On the other hand, ALL laws are "there for a reason", so one could argue it was a silly thing to say in the first place.
Mar '11
Re: No Right to Privacy?
Gus Marvinson:
Nonenforceable laws like those that Justice Thomas referred to are indeed silly, which makes the notion that Santorum would propose more of such laws equally silly. Don't mount a red light outside over your door and you will probably be safe from the sex police.
Indeed, when Lawrence v Texas occurred I had a pretty good chuckle at the notion that somebody was actually arrested for one of these laws.
But the problem is that Santorum keeps bringing up the "no right to privacy" point on the campaign trail, and every time it does, there is a strong implication (right or wrong) that he supports these laws.
The media is just salivating at the opportunity to dig into Santorum. If he starts winning more primaries, this topic will certainly be hashed out, and that could make all of us look pretty silly.
Mar '11
Re: No Right to Privacy?
How would the police witness the "crime?" They can't enter your home without probable cause, so unless you are letting your freak flag fly in front of the picture window, you're safe. Limited government is handy that way.
Do you really want to think about having a constitution that lists all the things you want the goverment to not be allowed to do? It will get a trifle long. It's probably better, all things considered, to give the government a list of limited powers and have them stick to it.
Rush only stays on the air as long as he can keep selling commercial time. There used to be books that were "banned in Boston," but it probably isn't going to be done again any time soon, particularly if you can download it directly to your Kindle.
In order to defend rights that nobody is particularly interested in violating, the alternative seems to be a government that is going to get in your business in every other room of the house: what kind of light bulbs you can have, how much water your toilet uses, what kind of milk you have in the refrigerator.
Aug '11
Re: No Right to Privacy?
Mendel
But the problem is that Santorum keeps bringing up the "no right to privacy" point on the campaign trail, and every time it does, there is a strong implication (right or wrong) that he supports these laws.
If I recall, Roe v. Wade is actually based on a non-existent "right to privacy." Even some left-wing lawyer pals of mine have called Roe v. Wade a really bad law because it hangs on privacy.
So, given his statements about abortion, I would naturally assume that this is the road he's going down.
Jul '11
Re: No Right to Privacy?
I think you have brought up great points Mendel and if Santorum wins more it will be hilarious to see libs, who want government controlling our private lives down to diet, screaming privacy laws.
This issue alone makes me queasy about my Santorum vote but I'll stick by it considering the other options as well as the odds he'll actually make headway on this topic.
Apr '11
Re: No Right to Privacy?
I don't know. I feel most people do feel there is a right to privacy. Unlawful search and seizure constraints seems to imply that government does not have a right to simply look through records or video tape/monitor you. Why is that? I always thought it was because of an implicit concept of privacy. Maybe I am wrong.
But Mendel is spot on. Santorum will be dragged down by this terrible social issues debate, that in many ways has been lost at least with respect to homosexuality, and its acceptance as a social norm. He has a good footing for abortion I think. But, on contraception and homosexuality he has very weak footing in my opinion, and I would vote for the man. I don't want to have a debate about Gay people and what they can or can not do in a bed room.
Santorum will not back down on this. He thinks homosexuality is a sin. Many people do not view it that way, and he will not convince enough people that it is a sin to win the election.
Nov '10
Re: No Right to Privacy?
Please see the ninth and tenth amendments. Not that they seem to mean much these days, alas.
Mar '11
Re: No Right to Privacy?
DrewInWisconsin
If I recall,Roe v. Wadeis actually based on a non-existent "right to privacy." Even some left-wing lawyer pals of mine have calledRoe v. Wadea really bad law because it hangs on privacy.
So, given his statements about abortion, I would naturally assume that this is the road he's going down.
Indeed, Roe v Wade did use a twisted "privacy" explanation to justify abortion - which I have never understood.
But if you look at some more of the interview I linked to above:
The undermining of the fabric of our society all comes from this right to privacy that doesn't exist in the US Constitution. This right was created in Griswold--the contraceptive case--and abortion. And now we're just extending it out. Whether it's polygamy or sodomy, all of those things are antithetical to a stable, traditional family. The idea of the "right to privacy" is that the state doesn't have rights to limit individuals' passions. I disagree with that.
Sounds like Santorum would also like states to legislate non-procreative sexual behavior.
Dec '11
Re: No Right to Privacy?
My touchstone question for all candidates in this year's election is simply this: "What will you do to reduce the size and power of government?" I'm taking little comfort in the answer I infer from Santorum, and this thread is a good example of why. In the current Republican presidential field, I'm left with Paul, which is frankly ap-paul-ing...
Mar '11
Re: No Right to Privacy?
I agree completely, a simpler Constitution will be more powerful than one loaded down with thousands of enumerated rights.
However, as Richard Epstein described on the last Law Talk, the flip side to a succint constitution is a tradition of "non-enumerated rights" which the government respects by consensus. Until now, I had believed that the unofficial right to privacy in the bedroom was universally accepted, even by conservatives. Was this wrong?
May '10
Re: No Right to Privacy?
Oooo, just think if it were a 100-watt incandescent red light!
Gus Marvinson: Don't mount a red light outside over your door and you will probably be safe from the sex police.
Seriously. · 1 hour ago
Mar '11
Re: No Right to Privacy?
We all have a reasonable expectation of privacy except in instances where our activities intersect with the public. I'm with Drew, and think that Santorum's trying to walk a tightrope between the privacy argument underlying Roe v. Wade and the privacy that we have as a natural right of our own existence.
However, that distinction is easily dispelled if one considers that there's another party whose expectations are being violated in an abortion, that being the unborn.
Which leads me to a question that's bothered me since I read Roe in law school. If the decision to have an abortion is a moral one, which I believe it is, and if government shouldn't be making moral decisions on behalf of its citizens, which I believe it shouldn't, what right does government have to outlaw a mother's decision to have one?
The obvious answer is to say that the unborn have the same rights as a viable, upright walking about person. As we push back the boundaries of scientific darkness, maybe we'll get to an answer to when life really begins. But politicians aren't the ones to answer that question.
Mar '11
Re: No Right to Privacy?
In the case of Lawrence v Texas, a jealous jilted man denounced his former boyfriend and his new partner to the police. Sort of a gay Gestapo.
And even if these laws are (thankfully) usually unenforceable, criminalizing people for peaceful, harmless behavior does not meet my definition of limited government.
Mar '11
Re: No Right to Privacy?
Illiniguy:
Which leads me to a question that's bothered me since I read Roe in law school. If the decision to have an abortion is a moral one, which I believe it is, and if government shouldn't be making moral decisions on behalf of its citizens, which I believe it shouldn't, what right does government have to outlaw a mother's decision to have one?
The obvious answer is to say that the unborn have the same rights as a viable, upright walking about person.
Exactly.
I actually agree with the mantra of "my body, my choice" that feminists so often chant - with the large caveat that a fetus is not part of a woman's body, but rather a separate body which happens to be attached to and nourished from the mother.
Mar '11
Re: No Right to Privacy?
I don't know the details of the case, but the cops taking any action at all on the "complaint" was a waste of police resources.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
How exactly did they get around this?
No, you don't have a enumerated right to privacy. I've never seen a penumbra emanate, and I have no desire to.
Aug '11
Re: No Right to Privacy?
Mendel
I actually agree with the mantra of "my body, my choice" that feminists so often chant . . .
Me, too. And I want to use it as an argument against Obamacare, as well as against the nannying food police so common these days.
Nov '11
Re: No Right to Privacy?
"It is one thing to argue that sodomy laws may be constitutionally enacted, but another entirely to argue that they should be, and Santorum is clearly in the latter camp."
Santorum said he also opposes the Supreme Court's 2003 Lawrence v. Texas decision striking down a ban on sodomy in Texas and 13 other states. Even though he would not personally vote for a ban on sodomy, he said, he thinks states should legally be able to pass them, because sodomy is not a constitutionally protected right.
"I thought that law was an improper law ... but that doesn't mean the state doesn’t have a right to do that," he said.
Nov '11
Re: No Right to Privacy?
Now, that's what he says now... perhaps his view of sodomy has "evolved"? Or maybe he was a little bit off during that AP interview (seriously, man on dog? Who says stuff like that?)
Feb '12
Re: No Right to Privacy?
Well don't know if I want to jump into this but I must. I don't see anyone here reminding us that the Constitution was written by men who as a group and as a culture believed in the Bible as the word of God. They didn't all attend the same church but there was a common respect for scripture. And from that Bible they believed that by nature man was a sinner capable of all sorts of personal and societal excesses whether it be fornication, homosexual, lying, gossiping, cheating, etc. And as a culture there were certain acts that were taboo and went too far. That formed the context for laws like anti-sodomy laws and the like. By the way, in the Old Testament parents were told to stone to death any unruly children but we don't have a record of it happening with any regularity. When the Bible was thrown out of schools and the "sexual revolution" arrived in the mid to late 60's we found our old cultural anchors torn away and the nation set adrift. No fault divorce, now gay marriage, what will it be next. run out of words