October 17, 2019 Advance Sheet

Invasion of Privacy

The governmental authorities we previously feared most from a privacy standpoint are being asked to police invasions of privacy from others around us.

Robert E. Shapiro

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Famously, the United States Constitution does not say a word about privacy, let alone articulate a right by that name. Likewise, there is no right of privacy mentioned in the Declaration of Independence, even if the enumerated rights of “life, liberty and the pursuit of happiness” are expressly said not to be exhaustive of the rights human beings are endowed with by nature. In accusing George III of tyranny, that fundamental charter of our regime could easily have mentioned an invasion of privacy, but the more political elements of taxation and interference with publicly enjoyed freedoms seem to be the greater impetus leading the Americans to “dissolve the political bands” connecting them to England. In more modern times, the efforts of the U.S. Supreme Court to locate a right of privacy in the text of the Bill of Rights have been labored at best. Not for nothing has the Court had to refer to the penumbras of the emanations of the First Amendment or draw inferences from the Fourth and Ninth Amendments to establish a right that seems somehow to be wholly absent from the text itself.

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