Louis XIV did not have the concern for privacy - the subject debated at length in this month's Currents in Modern Though - that ordinary Americans have. He performed his acts of elimination in full view of those in his palace, while his courtiers used the stairwells as toilets. Nor today do mainland Chinese place much value on privacy. Village billboards announce who is pregnant or who has been convicted of a crime.
On the other hand, the old English belief that a man's home is his castle underlies the American constitutional restriction on illegal searches on seizures. The rule that a wife cannot be forced to testify against her husband or that a priest cannot be made to violate the confessional helps to define an important, if less than universal, view of personhood and society. The Fifth Amendment restriction against forcing an individual to incriminate himself is an important limit on the intrusion of the state into the life of the individual.
Although I oppose strongly the Court's invention of new rights of privacy, and even more of a generalized right to privacy, I do not doubt for a moment that particular private rights are the foundation of a liberal government and a free society. The great problems, apart from the occasional fanciful activities of the Court, are to determine which private rights are important and under what conditions, for there always will be important trade-offs in making these determinations.
Certainly we value the right of parents to bring their children up without interference by the state, but we do override that right in cases of abuse or even when, for instance, despite parental objections on religious grounds, a court orders blood transfusions to save a child's life. We insist on control of our own bodies, but we would convict as a criminal any doctor who obeyed a patient's request to remove a healthy eye and to replace it with a ruby for cosmetic purposes.
Perhaps now we can modify the simple dichotomy with which I began. Louis XIV undoubtedly did not arrange his war plans openly, and spies who infiltrated his court would have been treated harshly. And I doubt that he opened his nuptial door to the casual visitor. There is no society in which no activities are private, and there is no society that does not bring some activities into the public sphere. If the Constitution had contained a clause sanctifying a generalized right to privacy, it would have been of little help in deciding which private activities to protect, although it might be used as a justification for any particular claim.
Even the privacy rights sanctioned in the Constitution are not unlimited. We can be forced to testify against ourselves. Although we may be insulated from criminal penalty, we may pay with our good name, our job, and our friends. Our home can be broken into without warrant if there is probable cause to believe that a crime is being committed. And the concept of probable cause itself is subject to judicial determination and may change with a change in justices.
Thus, it is not possible to think rationally about the concept of privacy except from within the framework of moral expectations, including, in particular, concepts of desirable modes of human life and of social and political institutions. Apart from its infirmities in constitutional interpretation, I find Roe v. Wade particularly depressing
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