Do You Have a Right to Privacy?

 Do You Have a Right to Privacy?  Most Americans would say, Hell yes!  But wait.

William Falk of The Week asked that question in his December 24th editorial and it piqued my interest.  Surprisingly, the US Constitution is mute on the subject.  It wasn’t until I was well into my college years and beyond before the U.S. Supreme Court weighed in with the Griswold, Loving, and Lawrence rulings of 1965, 1967, and 2003 respectively.  Prior to those decisions, individual states could imprison you for using contraception, marrying someone of another race, or engaging in sodomy in your own bedroom.

Warren Court

It was in the 1965 Griswold decision that Justice William O. Douglas wrote that the Bill of Rights created a “zone of privacy” upon which the government could not intrude.  That concept became the foundation for Roe v. Wade in 1973, and five Republican appointees were in the 7-2 majority.  Douglas used the term “penumbra” when describing his implied zone of privacy.  In astronomy, a penumbra is the outer lighted shadow area seen during an eclipse.  Hence it is a partially shaded area.  In its legal form, it is an implied right or implied power guaranteed by the constitution but not specifically referenced therein.

While limited government and “don’t tread on me” have historically been Republican talking points, recent appointees to the SCOTUS are now claiming to be “Constitutional Originalists.”  The term “originalism” references a school of thought where the intended meaning of the original writers of the constitution should be more exacting.  It would discard any more modern interpretations.  To many, it is nothing more than a “dog whistle” for a strict conservative rule.

Dred Scott

Originalism is not new as it goes back to the 1857 Dred Scott case.  Originalists then would hold that citizenship was never intended to be applied to enslaved or even free Black Americans.  Fast forward to the 21st century and we have a rebranded constitutional originalism being used to justify all manner of government power over things like voting rights, abortion rights, and personal freedoms.  For conservatives, it is a means to an end and a justification for them to reinterpret established precedent.

It was the Warren court of 1953-1969, wherein civil rights and civil liberties were expanded as interpretations of implied rights guaranteed by the constitution.  Originalism is seen as a backlash to counter those advancements and recent Trump appointees are using it to justify limiting those advancements.  The notion that SCOTUS appointees would in any way remain neutral to conservative/liberal politics in their findings went out the window long ago.  Trump gained the support of the religious right with his promise to allow the ultra-conservative Federalist Society to approve all SCOTUS appointees.  Trump managed to appoint more federal judges per year in office than any of his predecessors.

Under the originalist thinking of newly appointed judges, privacy rights become a matter for popular opinion at the state level.  If it isn’t guaranteed specifically in the constitution, it’s up for grabs.  If you happen to live in a state with a strong conservative religious contingent, your personal right to privacy could be in jeopardy.  Some of these groups hold that “the pill,” IUDs, and other forms of contraception are “abortifacients” and should be outlawed.  Many don’t believe in same-sex or interracial marriage.

For those conservatives who still believe in limited government but feel it necessary to promote an originalist interpretation of the constitution, how are you going to feel when some powerful group gains popularity within a state and attacks a right that they believe isn’t specifically spelled out in the constitution?  You do remember that semi-automatic weapons aren’t mentioned in the constitution?  Under strict originalist thinking, the right to bear arms could have meant that only bears can own guns.  Or perhaps it was a typo, and they were just approving tank-tops.  I guess that technically it couldn't be a typo.  What would they call it?  Perhaps a quill-pen-o.

The World is a Funny Place

Politicians who formerly told the occasional fib or tall tale, now lie with such regularity that it has become an accepted form of normal behavior. You will note that I said politicians and not Democrats or Republicans. I didn’t use the conservative or liberal labels either. In the age of the “truth isn’t truth” (Rudy Giuliani, Aug. 2018), we are living in a time where mendacity is revered as a new position of logic between the real and unreal and which often encompasses both elements. It is a world that only Rod Serling would understand. 

Rod Serling in the Trump Zone

The tinfoil hat brigade now has a standing army that no longer fears ridicule. They readily walk among us with a newfound sense of acceptance. Crazy loves company and their numbers are staggering. They proudly wear their t-shirts and identifying paraphernalia. They have their own terminology and secret hand signs. Paranoid behavior and the belief in conspiracy theories once thought to be a psychological anomaly, is now more widely accepted. While I personally believe that their numbers haven’t really changed that much, they appear to have grown exponentially. I feel that there is a group of true believers at the core and then there are hangers-on that just crave acceptance or see an opportunity to benefit from the weaknesses of others. 

Tinfoil Hat

Political grifters use such people for their own purposes. Tell a lie, make it so outrageous that it sounds impossible, and you will have a group that will follow you with evangelical fervor. Religious grifters have been doing it for hundreds of years but politicians seem to have just found the utility of steering these people to do their bidding. The Internet and social media have provided an expanded platform that goes far beyond the limits of a tent service or town hall meeting. 

It’s not much of a stretch to convince someone who literally wore a tinfoil hat to prevent mind control to believe that a vaccine might contain nanoparticles that do the same thing. Some in this group who actually got vaccinated are now trying to “un-vaccinate” themselves by cupping to remove the mind-controlling bots. Many scholarly articles theorize that it is a psychological need for acceptance and belonging that drives many to such positions of outlandish behavior. We, as humans, crave attention and social belonging, and some feel that some base need is being fulfilled through such erratic behavior. 

Mind Control

Even when predicted events don’t happen as scheduled, explanations are simple and accepted without challenge. Trump didn’t assume the presidency in August or September and JFK Jr., didn’t show up at Dealey Plaza on November 2nd and didn’t make an appearance later that night at the Rolling Stones concert. While people who might be assumed dead did show up on stage, there was no JFK Jr. appearance. None of this fazes the true believers. All may be easily explained away by a new conspiracy theory. 

Dealey Plaza QAnon Believer with JFK Jr Flag

During the Renaissance, art and literature depicted the insane with a sort of reverence as people who might be engaged with mysterious forces and who possibly were addressing reason and unreason. Later in the 17th century, aka the Classical Age, the insane were institutionalized and confined. Now in the 21st century, we just elect them to some public office and act amazed when they lie, cheat, and steal. Perhaps it is time to take the advice of Mick Jagger and Keith Richards in their song where they go “running for the shelter of mother’s little helper.”