The rights and wrongs of privacy

How did ‘privacy’ come to cover a multitude of sins? A philosopher explains.
Janet E Smith | Oct 31 2008 | comment  



During the past four decades, things that were previously considered crimes have been turned into rights: abortion, assisted suicide, homosexual acts, and more. In the United States this has taken place under the banner of a “right to privacy” supposedly protected by the Constitution.

But, says philosopher and theologian Janet E Smith, what really connects these new rights is not privacy but subjectivism -- the idea that there is no objective truth by which we must live. In a new book, The Right to Privacy, Professor Smith shows, following Pope John Paul II’s encyclical Evangelium Vitae, how subjectivism has given birth to the “culture of death” and how we might find our way forward to a culture of life. Here she discusses her book with MercatorNet.

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MercatorNet: We are all very aware of our need for privacy in this age of electronic databases, internet and crowded urban living, but do we in fact have a right to privacy? What is the basis of this right?

Dr Smith: The basis of this right is that we are "ends in ourselves": we do not exist to be used by anyone. We are free by our very natures and free to "determine" or craft ourselves, rather than being used by others. The legitimate right to privacy is the right not to have things that are rightfully private made public. No one should record our conversations and make them public without our permission, or use pictures of us to sell products, for instance, or sell our diaries.

MercatorNet: In America the right to privacy has a special, and rather contradictory meaning: that the state may not stop a woman -- or her doctor -- invading the privacy of the child developing in her womb and ending its life. How was this right discovered?

Dr Smith: During the 1960s the courts invented a whole new meaning for the right to privacy. They were attempting to find some basis on which they could overturn laws against the sale, distribution and use of contraception. For nearly a century many states and the federal government had laws against contraception. Planned Parenthood assiduously challenged those laws, but they were repeatedly affirmed by legislatures and courts.

In 1965, in Griswold v. Connecticut, the Supreme Court found constitutional protection for the sale, distribution and use of contraceptives -- by married couples. As is well known, there is no right to privacy in the constitution nor were the justices clear on which amendment implied a right to privacy that would guarantee access to contraception. Two short years later, the court expanded that right to the use of contraceptives by the unmarried. In 1973, the court found that the right to privacy extended to the right to have an abortion. There, too, laws of all 50 states were overturned by the votes of a few justices.

MercatorNet: What philosophical developments prepared the way for this right to privacy, and how else has it been applied since Roe?

Dr Smith: Philosophers speak of the “turn inward” that happened with such philosophers as Descartes. The world that was most real to them was the subjective world, the thoughts in their heads, rather than exterior reality. Their interior judgment became the standard of truth rather than objective reality. A later philosopher, David Hume, declared that we could not trust our senses as a source of truth. With no exterior standard to adjudicate which judgments are true, people started claiming that all opinions are equal. Subjectivism, skepticism, and relativism became the reigning philosophical positions. The right to privacy was built on those “ism”: we all have the right to define reality for ourselves.

The right to privacy has become a very elastic right; it has been used to legalize contraception, abortion, assisted suicide and homosexual acts. Virtually no one can give a coherent explanation of what this right is and what it legitimately protects. It has become a wild card that permits the courts to advance a very liberal -- not to say libertine agenda -- often overriding the decisions of state legislatures and courts.

MercatorNet: What is the specific contribution of your book to the debate over the right to privacy? Who are you hoping to persuade?

Dr Smith: It is a succinct defence of the claims of Evangelium Vitae (an encyclical written by John Paul II in 1995) that the sources of the culture of death are rooted in subjectivism, in the understanding that there is no objective truth by which we must live. It shows that Evangelium Vitae is correct that there are links between a contracepting culture and aborting culture, and assisted suicide. I am hoping to educate those who wish to understand how we got where we are. The hope is that greater understanding of the causes may lead to better understanding of the solutions.

MercatorNet: You point out that the whole area of law about human life is now incoherent: some laws protect it (murder is still theoretically banned, we have to wear seat belts, crash helmets etc), while abortion, and increasingly euthanasia allow it to be terminated. And yet there are efforts to make sense of it all by distinguishing levels of human existence -- from non-persons in the womb, through personhood and back to non-personal states such as dementia at the end of life. How should we deal with such rationalisations -- which seem to have a certain popular appeal?

Dr Smith: We need to demonstrate to people that those categories and definitions are not being driven by objective fact but by political agendas. The embryo and the person with dementia are fully human; one with capacities not yet fully developed, the other with reduced capacities. Once we decide that we protect only those human beings who have capacities we find acceptable, we will be killing whole classes of people. People need to understand both the causes of the assumptions driving their opinions and the consequences – logical and historical – of those positions. The court cases I review in my book demonstrate the logical and legal conclusions of subjectivism.

MercatorNet: What are some of the wider ethical and social implications of Roe's version of the right to privacy? Is it leading society where most of us would not consciously want to go?

Dr Smith: Some of us are already where we don't want to go! The right to privacy elevates a person's subjective opinions, whim and preferences over the objective truth and the common good. In Roe, a woman's desire to do with her body what she wishes overrides the right of the child to life. The decisions ignores the objective reality that it is not her body that she is dismembering, it is the body of someone else. The fact that some people want access to pornography violates the dignity of those who are portrayed in the pornography and in many ways harms the common good. But we want to claim that people have a right to whatever they want. It will be hard to have laws against cloning a version of one's self that can serve as a potential organ farm, for instance.

MercatorNet: It seems paradoxical that while the state has been handing over the moral sphere entirely to the private individual, it has been accumulating information about individuals at a rate that alarms many people. There is also growing concern about the power that companies have to access personal data. On the other hand there is the self-inflicted obliteration of privacy on MySpace, Facebook and other social networking sites. Do you see any links between these concerns and the issues you raise in your book?

Dr Smith: The right to privacy means two things: first, our right not to have what is rightfully private made public. Certainly the ability of others to get private information about us through modern means of technology is a genuine threat to our privacy. At the same time, too many people are voluntarily making public what should be private and polluting the general environment with their exhibitionism.

The other meaning of the right to privacy is the bogus one that is amorphous and elastic and seems to mean that we should be allowed to do whatever we want, whenever we want. That right to privacy threatens us in many ways, some mentioned above. If we were actually to live doing whatever we want whenever we want most of us would become addicts, some to very immoral activity.

MercatorNet: What do you think is behind the trend towards exhibitionism?

Dr Smith: I think much of the exhibitionism and popularity of such things as piercings and tattoos stems from the fact that people don't have much of a private self. Their interior life is greatly impoverished. They have spent their lives playing video games or watching MTV, etc. They have not read great books and gone on long quiet walks and pondered the deeper questions of life. They have not made strong internal commitments to truths that should govern their lives, to the point of being willing to fight and die for them. Instead they have filled their lives with distractions and their heads with trivialities. They have no inner compass, no inner sense of their innate dignity and worth, the importance of becoming a person of commitment. Thus, they need to define themselves by exterior means.

I also think many of them are without deep personal friendships. They may be neglected by their parents, without close sibling relationships or friends. They are desperate to belong to some kind of community, even if it is distressingly shallow and impersonal. They are expressing the deep human desire to belong but don't have access to truly rich and meaningful human communities.

MercatorNet: Is this kind of personality perhaps the inevitable or at least typical result of the subjectivism that you address in your book?

Dr Smith: Yes, and at this level they are dangerous largely to themselves. But when they start having children out of wedlock and becoming drug addicted, they threaten the well being of others. Ultimately they are very vulnerable to the dreams of utopians, who will promise them a better world where all their desires will be fulfilled if they vote for them. Without a sense of objective truth, we are susceptible to utopians who eventually morph into tyrants. They will destroy whatever does not fit with their plans. And often it is people of a certain kind who do not fit with their plans.

MercatorNet: What are the key issues for leading people out of this impoverished existence and towards a confident embrace of life?

Dr Smith: Certainly educators should start teaching young people that there is objective truth. They should read the great thinkers such as Plato, Aristotle, Dante and Shakespeare. They need to learn history and what happens when people don’t believe in objective truth. And a religious revival, especially of religions that respect human reason and find it to be a source of truth could help enormously. Again, we need people who believe there is a truth beyond their own subjective reading of reality – that slavery, and trafficking in human persons, and pornography and rape, for instance, are not good for anyone anywhere. They should ponder what principles make those acts reprehensible and they will find that they have a set of principles by which they can judge the goodness of evil of many actions. They will have an understanding of human dignity that will help them sort out many competing versions of reality.

Janet E Smith is a philosophy professor well known for her writing on human life and sexual ethics. She currently holds the Father Michael J McGivney Chair of Life Ethics at Sacred Heart Major Seminary in Detroit and is Professor of Moral Theology at the seminary.

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