Arguably the most esteemed right of libertarians is the right to privacy. This is perhaps the very crux of what libertarianism is–the right to have a life free of intrusion. This is the one right libertarians have used as a means to argue against the Patriot Act, mass surveillance, and big government overall. It is often cited as unconstitutional when a government program oversteps this cherished right that libertarians claim the Founders alluded to in the Ninth Amendment.
But lately I’ve been struck with the question as to whether or not “privacy” is a right. This came when I inspected the argument that came from former Associate Justice of the Supreme Court, Hugo Black, when Griswold v. Connecticut was decided. In his dissenting opinion, he argued that “There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth Amendment’s guarantee against ‘unreasonable searches and seizures.’ But I think it belittles that Amendment to talk about it as though it protects nothing but ‘privacy.'”
He goes on to argue that “‘Privacy’ is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures.” In other words, he argues that although the Constitution in some aspects protects privacy, the Fourth Amendment by itself doesn’t protect “privacy” and the very term “privacy” itself can be used as an argument against searches and seizures, even if a search warrant were to be obtained.
I find this argument to be particularly important because Hugo Black challenged the very notion of “privacy” as a right, much in the same manner modern-day right-wingers challenge the notion that healthcare is a right. Now it is apparent that the Left loves to see everything as right, whether it is healthcare, safe spaces, or even entire communities like the LGBTQ. They will attach the notion of rights to anything they support. I feel that libertarians are doing the same to a certain extent regarding privacy.
Libertarians would be wise to consider the following question: Is there an actual right to “privacy?”
I normally make the argument that rights can only be rights if they can be exercised autonomously. This argument maintains that freedom of speech, freedom of religion, freedom of assembly, and freedom of the press are absolute rights because they can be practiced through individual means. I need no authority to tell me I can speak, practice whatever religion I want, or protest; I have every right to do all three. But I have no right to someone else’s services because that is equivalent to slavery, which is a moral atrocity. I simply cannot demand that another give me their income or service because I have a “right” to that. To say something is a right, implies that when that right is denied, a crime is committed. Crimes are committed when the rights to speech, religion, protest, property, and life are denied. Can the same be said if I refuse to give someone a portion of my income? The answer is no, of course.
That being said, does privacy pass the litmus test for an actual right?
Privacy is not something that can be practiced autonomously. For privacy to be attained, one would need the cooperation of others to respect their individual sphere. Though some would argue that the individual sphere is a right to begin with, I would refute this by asking whether or not annoyance is in direct violation of the right. Sometimes, another human being will just interrupt your individual sphere, and present himself as an annoyance. If he has interrupted your personal sphere, can you have him charged for a crime of annoyance? No, you cannot. The reality is that interruption of the individual sphere is not criminalized unless it violates another right, such as property or life.
So in reality, privacy, just like healthcare, is not a right at all. Instead, it is used by libertarians to escape intellectual debate and use buzzwords to attract support. Now, in this article I do not mean to undermine the importance of privacy, I simply mean to debunk the idea that it is another God-given right. Of course privacy is important, but it is not automatically granted to a person. Much like respect, privacy is a virtue that needs to earned and developed, rather than demanded.