Op-ed Danger!

Yesterday in the Globe, Jeff Jacoby let forth a spume (registration required) of anti-privacy invective, tracing society's current privacy obsession to--what else?--activist judges. Conservative boilerplate is wicked tiresome, huh? Far be it for me to rebut the legislating-from-the-bench meme, though I have a hunch it was old back when Griswold v. Connecticut was decided in 1965. Jacoby tells us that Griswold enshrined the ambiguous "right" to privacy in the Constitution and led more-or-less directly to Roe's decision eight years later. As obnoxious as Jacoby is, he has about half of a point here: the Constitution says next to nothing about privacy.


This is one of those rare times when the document shows its age. The founders could not possibly have envisioned a time when privacy would need to be protected the way it is now. They guaranteed the sanctity of the home and personal property, but gave not a thought to digital privacy, wiretapping, or public video cameras. Today, while privacy is not sanctioned in the Constitution, it exists as a series of powerful decades-long precedents (much like Roe itself) that would be difficult to overturn even if it were politically feasable (it's not). The quote from Justice Black at the end is interesting in Jacoby's context, but again, Black was on the bench until 1971 and had no knowledge, let alone prescience, into the digital age. Plus he was the Conservative movement's favorite animal, a strict constructionist, which while not always a bad thing, comes hand in hand with a certain inflexibility.


P.S. Jeff, your objections to protection of privacy would carry more water if you hadn't gone on the record defending it four years ago.