The American Spectator

Political Hay

For good reason, conservatives have long been suspicious of the judicially created "right to privacy." But deployed in the right circumstances, this liberty interest could be used to thwart liberal panaceas.

Despite the controversy among conservatives surrounding the issue, the Constitution does protect privacy. Most important, as a document of enumerated powers, the Constitution limited the national government's power to act. (Of course, the Supreme Court has turned the Constitution on its head, allowing Uncle Sam to do most anything not expressly restricted.) Thus, there was little authority for the federal authorities to violate people's privacy.

Moreover, the Fourth Amendment clearly limited the government's ability to snoop. The British had employed general "writs of assistance" that required no evidence of misbehavior, and the early Americans certainly didn't intend to allow their new government to do that.

Unfortunately, however, the modern, judicially created "right to privacy" seems to be all about sex. And it is being employed as a weapon to achieve ends very different than preserving individual liberty from state encroachment.

Abortion is the most obvious. But the killing of the unborn cannot be shielded behind the claim of privacy (after all, you can't normally kill people so long as it is done "privately," that is, out of public view). Nor does the question of gay marriage have anything particular to do with privacy, as traditionally understood. Yet both are advanced under this banner.

p>In an intriguing essay in the New Republic online, William J. Stuntz, a professor at Harvard Law School, unintentionally explains why conservatives should enthusiastically support personal privacy and government transparency. Although these might seem to be liberal concepts, he writes: br> /p>

In order to govern wisely, the government should know as much as possible about those it governs. And the citizenry should know a lot less about government officials -- otherwise, those officials will spend too much time and energy hiding from reporters and too little time and energy governing. In these terms, individual privacy and government transparency are deeply conservative ideas, because they keep government ignorant and inactive, and thereby prevent it from acting aggressively to right social wrongs.

br> Stuntz then cites the 1950s as the beau ideal. Police searched whoever whenever they wished. People knew everything about one another. People didn't know much about government.

Without a return to something close to this system, he worries, "effective, active government -- government that innovates, that protects people who need protecting, that acts aggressively when action is needed -- is dying." Which is just as a conservative, at least one who believes in limited, constitutional governance, should desire.

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