No society adopted a true right to privacy

Last week I discussed the concept of “rights” and how flimsy their foundations are unless they come from, as the Declaration of Independence holds, our “Creator.” Today I’d like to consider the supposed “right to privacy,” a right nowhere specifically enumerated in the Constitution or Bill of Rights, but for 49 years guaranteeing access to abortion.

The Supreme Court has wrestled with this concept for a long time and, as Justice Hugo Black stated in Griswold (1965) overturning Connecticut’s ban on contraceptives, “Privacy is a broad, abstract and ambiguous concept.” Indeed!

Supposing we have a right to privacy, where does that right come from? Not from our “Creator,” apparently, because nowhere in the Bible do I see a right to privacy. In fact, I do not see any explicit rights at all in the Bible, but lots of duties and responsibilities and blessed promises. In fact, since the Bible warns against “deeds done in darkness,” there would seem to be the implication that privacy is only useful for things we would be ashamed to have publicly known. Far from being a “right,” privacy would seem to be, if not a sin, at least a facilitation to sin.

From Biblical to early modern times, I am unaware of any society positing a right to privacy. Life in the Middle Ages in a typical village was a mostly public affair. Everyone knew everyone else’s business and this was thought a good thing in order to keep everyone on the straight and narrow. Our colonial founders operated on the same basis, more or less. Only in cities was it possible to achieve some sort of privacy, and cities were thought for centuries to be dens of iniquity as a result.

But, as we moved from colonies to a nation, the concept of “mind your own business,” also a Biblical concept, seemed to increasingly take hold. The concept of privacy came to buttress an increasingly libertarian society, based on “liberty and the pursuit of happiness,” the one reinforcing the other. You had the right to live your life the way you wanted, absent law-breaking, and the government had no right to intrude.

However, by the late 19th century governments at all levels began to be more intrusive in hedging about many rights. Private acts had public consequences, and therefore the emerging progressives sought to constrain and enjoin private acts of which it disapproved.

New York, for instance, passed laws dealing with working hours, and was sued for doing so. Lochner v. New York, decided by the Supreme Court in 1905, said that New York had no right to interfere with persons entering into private working arrangements. However, in an oft-cited dissent, Justice Oliver Wendell Holmes opined that the ruling was wrong, since it “perverted” “…the natural outcome of a dominant opinion.” In other words, progressive opinion held that workers and employers were not equal, and the government had to step in to dictate the terms of wages and hours. Lochner went the way of all flesh in 1937 with the New Deal, and President Franklin Roosevelt's threat to pack the court unless it changed its mind about that bit of “settled law.” (Parenthetically, to the left, “settled law” is only that law with which it agrees.) Privacy was out the window.

So what is private any more? Everything you earn or spend is subject to government surveillance. The IRS is very insistent on that. HIPAA protects your “sensitive” medical information, for which we have the joy of filling out paperwork and paying more to cover the cost of administration. But, should the authorities need to know anything, your records are an open book. Only your Aunt Harriet, if you neglected to list her on the HIPAA form, will be kept in the dark.

What is “private” about an abortion? Lots of people are involved.

Finally, whatever “rights,” to privacy or anything else we may think we have, are ultimately at the mercy of “dominant opinion.” Remember that when you vote.

Charles Milliken is a professor emeritus after 22 years of teaching economics and related subjects at Siena Heights University. He can be reached at milliken.charles@gmail.com.

This article originally appeared on The Daily Telegram: Charles Milliken: No society adopted a true right to privacy