The Online Library of Liberty

A project of Liberty Fund, Inc.

• Literature of Liberty a Review of Contemporary Liberal Thought
• Editorial Staff
• Associate Editors
• Editorial
• Bibliographical Essay: Henry B. Veatch, Natural Law: Dead Or Alive?
• I: Natural Law
• “nature” and “law” In Natural Law
• The Anatomy of Natural Rights
• Egoism and Rights
• The Is/ought Chimera
• Deriving “ought” From “is”
• Facts Vs. Value-laden Whims
• Is/ought and Probable Reasons
• Does Righteous Anger Imply Rights?
• Why Be Moral?
• Truth As an Objective Value
• Was the Revolution Objectively Necessary?
• Natural Law and State of Nature
• Natural Law and the State
• Natural Rights and Anarchism
• Dworkin On Rights
• Liberalism, Rights, and Abortion
• Rights and “mercy Killing”
• Rights and the “brain Drain”
• The Natural Law Right to Work
• Grotius: Contract and Natural Law
• Rights and Communication
• II: Autonomy, Privacy, and Authority
• Bureaucracy and “the Organization Man”
• Autonomy and Anarchism
• Autonomy and Taking Responsibility
• Autonomy, Motivation, and “buck-passing”
• Schooling For Conformity
• The Schoolroom Vs. Autonomy
• Obedience to Authority
• The Meaning of Privacy
• Privacy and Autonomy
• Privacy and Consent
• The Court and Privacy
• III: The Ambiguities of Liberty
• Clarifying Freedom
• Rehabilitating Mill's “harm Principle”
• Experiencing Freedom
• Do Offers Coerce Freedom?
• The Danger of “dangerousness”
• Freedom, Motivation, and Government Programs
• Freedom Vs. Determinism
• Negative Vs. Positive Freedom
• Smith and Utilitarian Economic Freedom
• Locke, Freedom, and Tacit Consent
• Religious Freedom
• Freedom, Existentialism, and Innocent Victims
• Does Censorship Harm Freedom?
• IV: Slavery
• Slavery, Ideology, and Subordination
• Slavery and Imperialist Ideology
• Enlightenment Liberalism Vs. Slavery
• The Anatomy of a Slave Revolt
• Colonial American Slave Law
• Jefferson On Slavery
• Slavery and the Poor
• V: Planning
• Regulation and the Warfare State
• Mail, Privacy, and Social Control
• Corporate State Capitalism: Coal
• French War “planification”: Chlorates
• Bureaucracy and British Regulation
• British Foreign Policy and Stagnation
• Political Decisions and the Economy
• Government, Labor, and Multinationals
• Black Markets Vs. Regulation
• Regulation Vs. Academic Autonomy
• Government Schools and Social Control
• The Economics of Charity
• International State Planning and Inflation
• Competition and Individual Knowledge

The Court and Privacy

Hannah A. Levin Frank Askin

• Union Graduate School Rutgers University

“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.

III

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.