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In the case of Bowers v. Hardwick the United States Supreme Court failed to strike down Georgia's sodomy laws, as they applied to homosexuals, because rather than treat the matter as one of privacy rights, the court instead viewed the case from the perspective of whether there existed within the United States and its traditions, a right to engage in homosexual activity.
In the Supreme Court's opinion, privacy in this case was defined by,
Whether the act you wish to commit is fundamental, meaning "traditional," necessary for "ordered liberty," or "deeply rooted" in history -- valued by the majority of people in our nation over time. It relies on an act-based conception of privacy and ignores spatial boundaries entirely.
Similarly, privacy issues have frequently been raise din regard to abortion rights. Ever since Roe v. Wade, many states have enacted laws restricting access to abortion and abortion procedures - including even the recent passage of the Partial Birth Abortion ban by the federal government. The fight against many of these laws has been based largely on privacy grounds:
The presence of a state constitutional right to privacy significantly increases the likelihood of court intervention in the area of abortion legislation. Because state constitutional right to privacy provisions can serve as grounds to invalidate restrictive abortion laws and are associated with increased court intervention.... policymakers will be less inclined to enact restrictive abortion legislation when constitutional right to privacy provisions are present.
These arguments would appear to contradict the United States Supreme Court's ruling in Bowers v. Hardwick, as in the instance of abortion rights, it is the right of individual women to pursue a personal choice that is at issue, as opposed to a concept of public morality, or generally construed rights that must be applicable to all.
The idea of generally construed rights applicable to all is another way of conceiving of Bowers v. Hardwick's "ordered liberty." Ordered liberty is an interesting concept as it conceives of rights and freedoms that are handed down by society as a whole. Freedoms that are not part of a nation's or people's traditions, or that do not become universally accepted over time, are not rights per se - they are not construed as rights by the general population and therefore do not exist within the public sphere. Returning to the issue of protecting the American population from terrorist acts, one finds what is likely the broadest possible application of the notion of ordered liberty in opposition to personal privacy rights. In the case of California v. Ciraolo, the United States Supreme Court ruled that the aerial surveillance that was used to discover marijuana plants growing in a suspect's fenced-in backyard did not constitute any unlawful invasion of privacy. In the Court's opinion,
Any member of the public flying in this airspace who glanced down could have seen everything... The officers observed." In an age of routine air travel, Ciraolo was unreasonable in expecting his marijuana plants to be protected from aerial observation."
Clearly, had the observations of the suspect's premises been attempted from the ground, they would have been impossible. The fence surrounding the suspect's house would have served as a sufficient guarantee of the suspect's privacy to the extent that any legal authority wishing to examine the suspect's backyard would have had to obtain a search warrant. It evidently did not matter to the court that an aviator would not normally have flown so low, and so close to the suspect's backyard as to have seen objects so small as marijuana plants. The court's decision reflected the view that, in the case of an overflight - regardless of circumstances - one could "happen" top notice something that would not be protected by any recognized right of privacy i.e. If you want to protect your property from aerial view, cover it with something. No expectation to aerial privacy exists just like no expectation to privacy exists in the case of overseas calls because, so officials of the Bush Administration could argue, there has been no tradition of such things being private - an international electronic communication is simply a variation on a person carrying a message across a border, in which case, that person would be subject to customs regulations, etc. By the same token, a person could sit in a tall tree and look over a fence at a bunch of marijuana plants.
As these varied cases show, definitions of privacy in the United States continue to be highly flexible. In 1961, the United States Supreme Court was able to rule that the right to privacy must be construed as broadly as possible incases of search and seizure. A suspect was deemed to be protected in almost every conceivable manner against authorities operating without legal warrants and probable cause. Privacy rights expanded as a result of the new procedures that would put in place. However, times changed as crime rates rose, and the American public began to fear for its physical safety. The terrorist attacks of September 11, 2001 marked the beginning of a new era in which gross violence and catastrophic destruction appeared to enter intimately into the realm of everyday existence for each and every American. Other issues too, like gay marriage and abortion rights divided many Americans against the perceived dangers of some "other." One segment of society found the conduct of another immoral and even dangerous, something to be suppressed and prohibited. Practices that might have been construed as constituting examples of private conduct, in one situation, could be considered worthy of public control in another. Sodomy could be regulated, while abortion could not, depending on the laws and traditions of the particular jurisdiction i.e. there were few, if any, places in America where homosexuality had been traditionally accepted, while abortion, on the other hand, had become acceptable in many areas. Privacy is respected if it is not a danger to public order, or generally accepted notions of what constitutes right action, or "ordered liberty" - the things that one can rightly be expected to possess the freedom to do. Privacy is a public concern. In the case of terrorism, and the threat of terrorist attacks, governmental authorities can be expected to argue that the kind of surveillance connected with preventing these acts does not represent a violation of any traditional idea of privacy, nor can this surveillance be expected to be curtailed without extreme danger to the public. While many Americans would sincerely argue that there is, our should be, a guaranteed, constitutional right to privacy, court opinion would appear to indicate otherwise... privacy is malleable.
Buckley, William F. "Your Rights, Their Rights." National Review 13 Dec. 2004: 58.
Ganz, John S. "It's Already Public: Why Federal Officers Should Not Need Warrants to Use GPS Vehicle Tracking Devices." Journal of Criminal Law and Criminology 95.4 (2005): 1325+.
Hickey, Adam. "Between Two Spheres: Comparing State and Federal Approaches to the Right to Privacy and Prohibitions against Sodomy." Yale Law Journal 111.4 (2002): 993+.
Jaffa, Harry V., and Joseph Sobran. "A Right to Privacy?." National Review 24 Mar. 1989: 51+.
Kamisar, Yale. "In Defense of the Search and Seizure Exclusionary Rule." Harvard Journal of Law & Public Policy 26.1 (2003): 119+.
Langer, Laura, and Paul Brace. "The Preemptive Power of State Supreme Courts: Adoption of Abortion and Death Penalty Legislation." Policy Studies Journal 33.3 (2005): 317+.
U.S. Supreme Court, Mapp v. Ohio, 367 U.S. 643 (1961)." FindLaw for Legal Professionals 2006. URL: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=U.S.&vol=367&page=643#Scene_1.
Harry V. Jaffa, and Joseph Sobran, "A Right to Privacy?," National Review 24 Mar. 1989. http://www.questia.com/PM.qst?a=o&d=5009328810
William F. Buckley, "Your Rights, Their Rights," National Review 13 Dec. 2004: 58.
U.S. Supreme Court, Mapp v. Ohio, 367 U.S. 643 (1961)," FindLaw for Legal Professionals 2006, URL: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=U.S.&vol=367&page=643#Scene_1.
Yale Kamisar, "In Defense of the Search and Seizure Exclusionary Rule," Harvard Journal of Law & Public Policy 26.1 (2003). http://www.questia.com/PM.qst?a=o&d=5000694717
Adam Hickey, "Between Two Spheres: Comparing State and Federal Approaches to the Right to Privacy and Prohibitions against Sodomy," Yale Law Journal 111.4 (2002). http://www.questia.com/PM.qst?a=o&d=5000694717
Adam Hickey, "Between Two Spheres: Comparing State and Federal Approaches to the Right to Privacy and Prohibitions against Sodomy," Yale Law Journal 111.4 (2002). http://www.questia.com/PM.qst?a=o&d=5012122901
Laura Langer, and Paul Brace, "The Preemptive Power of State Supreme Courts: Adoption of Abortion and Death Penalty Legislation," Policy Studies Journal 33.3 (2005). http://www.questia.com/PM.qst?a=o&d=5012452592
John S. Ganz, "It's Already Public: Why Federal Officers Should Not Need Warrants to Use GPS Vehicle Tracking Devices," Journal of Criminal Law and Criminology 95.4 (2005).[continue]
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