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Introducation: Privacy and the Public Interest
| Article
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18448 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
9 / 1990 |
2,908 Words |
| Author
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Robert P. George
Robert P. George is assistant professor of politics at
Princeton University. This essay was written while the author
was a visiting fellow in law at New College, Oxford
University. He wishes to achknowledge a generous grant from
the George A. and Eliza Howard Foundation of Brown University,
which made his fellowship possible. |
In the 1986 case of Bowers v. Hardwick, the Supreme Court of the United States, by a bare majority, refused to strike down as an unconstitutional violation of “the right to privacy” a Georgia criminal statute under which the defendant, Michael Hardwick, had been arrested for homosexual sodomy. Writing in dissent, Justice Harry Blackmun distinguished two types of “privacy interests” that have been recognized in the Court's constitutional jurisprudence: (1) “a privacy interest in reference to certain decisions that are proper for the individual to make,” and (2) “ privacy interest with reference to certain places without regard for the particular activities in which the individuals who occupy them are engaged.”
According the Blackmun, the Bowers case implicated “both the decisional and the spatial aspects of the right to privacy.” It implicated the decisional aspect because it concerned a sexual act between consenting adults that, in Blackmun's view, the individuals concerned ought to be legally free to decide whether to perform. It implicated the spatial aspect because the act of homosexual sodomy for which Hardwick had been arrested occurred in the privacy of his home.
Justice Byron White, writing for the Court's majority, rejected Justice Blackmun's claim that Georgia's prohibition on homosexual sodomy violated a constitutional right to privacy in either aspect. White argued that in view of the “ancient roots” of legal prohibitions on homosexual acts, the liberty to perform such acts cannot fairly be said to be “implicit in the concept of ordered liberty” or even “deeply rooted in [our] Nation's history and tradition.” Thus, he concluded, the Constitution does not confer “ fundamental right to homosexuals to engage in acts of consensual sodomy.”
The primary significance of the Court's ruling in Bowers was that it drew a sharp limit to a line of cases in which the Court had invalidated a variety of state statutes as unconstitutional violations of privacy. These included laws forbidding the distribution of contraceptives - not merely to married couples, as in Griswold v. Connecticut (1965), but to unmarried persons, in Eisenstadt v. Baird (1972), and even to minors, in Carey v. Population Service (1977) - and laws forbidding the possession or use of legally obscene material in the home, in Stanley v. George (1969). In its most dramatic extension of the “right to privacy,” the Court legalized abortion through the first six months of pregnancy and fetal life (and, many scholars argue, effectively through the whole nine months) by striking down state laws restricting abortion in the companion cases of Roe v. Wade and
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