Front Page Titles (by Subject) The Court and Privacy - Literature of Liberty, October/December 1978, vol. 1, No. 4
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The Court and Privacy - Leonard P. Liggio, Literature of Liberty, October/December 1978, vol. 1, No. 4 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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The Court and Privacy
“Privacy in the Courts: Law and Social Reality.”
How do Supreme Court decisions deal with the questions of privacy?
The right to privacy may be seen as deriving from the Fourth Amendment's protection “against unreasonable searches and seizures,” the Fifth Amendment's guarantee against self-incrimination, and possibly the First Amendment's prohibition on the abridgement of freedom of speech. With regard to the protection of sexual and reproductive behavior, the Supreme Court has recognized the right of privacy within the marital bedroom. Thus, individual access to birth control information and abortion is protected from governmental interference. However, the Court has decided that privacy interests can be outweighed by the social need for public safety. Thus, the police, without a warrant, are permitted to stop and frisk suspicious looking persons on the streets for weapons.
The authors believe that were the Courts to use social science data, the result would be an extension of the right to privacy. “The Justices of the Supreme Court have no special background regarding the meaning of or significance of personal privacy as a behavioral phenomenon. It is up to the social scientists who have studied this phenomenon to educate the courts.”
Although not directly related to the authors' main line of reasoning, they observe that “in the modern world it is precisely governmental structures and governmental power that most directly threaten our right(s) of privacy.” From the perspective of personal autonomy and freedom the use of social science data regarding the psychological expectations of privacy is fraught with problems.
The Ambiguities of Liberty
Throughout the history of political philosophy, the concept of liberty or freedom has provoked a bewildering and often contradictory range of interpretations. To appreciate how liberty has historically meant a complete spectrum of opinions ranging from the illiberal, totalitarian, and closed society to the liberal, democratic, and even anarchistic society, one has only to list the names of Plato, Aristotle, Epictetus, St. Augustine, Aquinas, Hobbes, Locke, Rouseau, Jefferson, Godwin, Hegel, Stirner, Mill, Marx, and Isaiah Berlin. Sorting out the major distinct meanings in the labyrinth of liberty, Mortimer Adler required two thick volumes to do justice to The Idea of Freedom. Some philosophers, such as John Gray of Oxford, believe that liberty may be “ineradicably disputable” and possess an essentially “contestable” character [see Gray's “On Liberty, Liberalism and Essential Contestability,” British Journal of Political Science 8 (1978): 385–402]. Liberty is a value-laden term since its meaning depends upon which rival conception of man and society one endorses. Defining liberalism, Maurice Cranston reflects the ambiguous nature of liberty: “By definition, a liberal is a man who believes in liberty, but because different men at different times have meant different things by liberty, ‘liberalism’ is correspondingly ambiguous.” (In Paul Edwards, ed. Encyclopedia of Philosophy. Collier-Macmillan: New York, 1972, Vol. 4, p. 478).
Some of the ambiguities of liberty are partially clarified by following Adler's distinctions: (1) freedom as “self-perfection” or exemption from the slavery to our internal passions and vices; (2) freedom as “self-realization” or exemption from the slavery to external circumstances (e.g., coercive laws, duress); (3) freedom as “self-determination” or the psychological and moral ability to freely choose an alternative (as opposed to determinism); and (4) “political freedom” or the ability of citizens to participate in making laws.
The following summaries reflect the ambiguities and debates revolving around liberty as well as attempts to clarify various distinctions and moral evaluations of this centrally important concept.