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.

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:

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.

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.

STUNTZ'S EXAMPLES AMPLIFY his points. He complains that the Fourth and Fifth Amendments originally were used to bar government access to company financial records. Those decisions unfortunately were overturned. Otherwise, much of today's inefficient, expensive, and counterproductive regulatory state would be impossible.

In 1946 conservatives pushed through Congress the Administrative Procedure Act, to, in Stuntz's words, "rein in the executive agencies through which New Dealers regulated the economy, chiefly by making those agencies more open." Just imagine the terrible world we would live in if today's miasma of alphabet-soup bureaus and departments could act without formal rules or public scrutiny.

Indeed, he views transparency as "a tax on activist government." Put bluntly, micro-managing bureaucrats won't want to throw out zillions of new ideas if citizens are likely to see how crazy most of them are. So officials will choose status quo over new regulation.

The Harvard law professor also dislikes privacy because, seriously, he thinks it most helps rich people. Consider the Fourth Amendment. It "protects houses more than apartments, private spaces more than public ones, and passengers in cars more than those who ride buses and subways."

Indeed, it's worse than that. The Fourth and Fifth Amendments were drafted by discreditable people. Writes Stuntz: "Constitutional texts designed by rich slaveholders in the late eighteenth century -- texts used by rich corporations to protect laissez-faire economics in the late nineteenth century -- became, in the late twentieth century, the chief means of protecting black suspects from abusive white cops." Imagine the indignity!

Now, Stuntz says that he's not against privacy and transparency. In his view: "The best way to stop the nightmare [of leaks from Kenneth Starr's investigation of President Bill Clinton] from happening is to limit not what information officials can gather, but what they can do with the information they find."

It's a curious argument to make in a world in which most information, like that gathered by Ken Starr, is leaked as quickly as it is collected. Better to deal with "root causes" by barring the collection in the first place.

NO SURPRISE, STUNTZ'S ARTICLE stirred up a liberal hornet's nest. In his rebuttal to his critics, he pulled out the big guns. Today's privacy standards might have prevented creation of the income tax. (Oh, would that were only true!)

And, yes, privacy considerations probably would have prevented passage of the Civil Rights Act. There, that does it. If you're for privacy, your views would have left segregation in place. Egads!

Of course, the danger today is not that anyone is going to re-create the Jim Crow laws. Rather, it is the development and constant expansion of an extraordinary racial spoils system, which taints politics, education, and even social relations.

Stuntz concludes with a clarion call for dismantling roadblocks to hyper-activist government. He warns liberals: "Limits on government power that look wise when the other side holds the reins sometimes look foolish when your side is in charge."

And vice versa.

Stuntz makes some serious arguments and obviously neither privacy nor transparency can be treated as absolutes. Nevertheless, conservatives, especially those now in power, are far too careless and cavalier in dismissing the importance of both values.

Properly understood and deployed, the right to privacy (as well as government transparency) could be a powerful tool for limiting government. Conservatives should take note.

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Education, Bill Clinton, Economics, Abortion, Constitution, Law, Supreme Court, Energy, Oil