Liberty and Privacy: Connections
If property is liberty’s other half, privacy is its guardian. The right to privacy is essential to the preservation of freedom for the simplest of reasons. If no one knows what I do, when I do it, and with whom I do it, no one can possibly interfere with it. Intuitively, we understand this, as witness our drawing the curtains and pulling the window shades down when prowlers are about. The threat to freedom comes from both the criminal and the state, from any and all ways and means in which others forcibly overcome our will. Just as we do not want burglars casing our homes, we should fear the government’s intimate knowledge of the many details of our daily lives.
Although equally critical to liberty, privacy rights, unlike property rights, are not enumerated in the Constitution (except for the Fourth Amendment’s protection of “persons, houses, papers, and effects” from unreasonable searches), although throughout most of our history Americans have retained their right to privacy. Today, however, this right is insecure as the courts, except in a few cases, have been unwilling to find in privacy a right retained by the people as suggested by the Ninth Amendment’s declaration and, despite Lopez, 1 have been unwilling to bar legislated invasions of privacy on the grounds that they are simply outside the scope of the few and well-defined powers granted by the Constitution to the Congress.