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The Right To Privacy

The evolution of a right to privacy parallels the development of the humanist tradition. A right of privacy is predicated on the belief that each human being has intrinsic value, that is, is valuable in and of him or herself. Respect for this belief becomes the fundamental source of all human rights.

Humanism reached its greatest flowering in the works of such a diverse set of thinkers as Voltaire, Montesqueiu, Diderot, Hobbes, Rousseau, Bentham, Gibbon, Hume, Adam Smith, Kant, John Locke, Benjamin Franklin and Thomas Jefferson.

John Locke published his Two Treatises of Government anonymously in 1690. Locke's work serves as a major counter-argument to Thomas Hobbes' Leviathan, in which Hobbes argues in favor of absolutist government to keep people from abusing property and privacy. The Second Treatise of Government, subtitled An Essay Concerning the True Original Extent and End of Civil Government, stands today as an extremely influential work that shaped political philosophy and provided a basis for later political doctrines, such as those set forth in the Declaration of Independence and the United States Constitution. The Second Treatise of Government places sovereignty into the hands of the people. Locke's fundamental argument is that people are equal and invested with natural rights in a state of nature in which they live free from outside rule. People then exchange some of their natural rights to enter into society with other people, and be protected by common laws and a common executive power to enforce the laws. People need executive power to protect their property and defend their liberty. The civil state is beholden to the people, and has power over the people only insofar as it exists to protect and preserve their welfare. People have the right to dissolve their government, if that government ceases to work solely in their best interest. The government has no sovereignty of its own--it exists to serve the people. Locke sees personal liberty as the key component of a society that works toward the individual's and the commonwealth's best interest.

The job of drafting the Declaration of Independence fell to the youngest member of the committee, Thomas Jefferson. In composing the declaration, Jefferson drew on ideas from the Humanist tradition, especially those of John Locke. Not only did the declaration represent a milestone in the history of the United States, it also turned the political philosophies of 18th century Europe into real political practice. The introduction to the Declaration of Independence also is important for the ways it contributed to Americans' understanding of their rights as citizens. Americans continue to believe that the phrase "all men are created equal" is a fundamental "law" in the country. While this phrase was included in the introduction to the declaration, it appears nowhere else in official documents defining rights granted under the U.S. Government. The Declaration of Independence holds no legal authority in our country, yet it continues to be cited as the foundation for American equality.

The basic principle upon which the Declaration rests is that colonists, as British citizens, believed they were entitled to the rights and privileges granted by the Magna Carta, and the British Bill of Rights of 1689. Among other things, these documents established that the King was not above the law, that the people, represented in parliament, had a right to endorse or reject taxation, and that citizens were entitled to a trial by jury of their peers. Additionally, the Declaration relied on precedent: most British colonies had enjoyed self-rule and had been governed through their own legislative bodies since their founding. By 1774, most of the colonists that had once protested "no taxation without representation" found themselves without any representation whatsoever, neither in Parliament nor in any colonial house of representation. Governments exist to support the rights of men. Governments exist only through the power of the people that they represent. When a government fails to grant rights to the people and removes the involvement of the people, the people have the right to change their government in a way that will allow for their unalienable rights to be protected.

Perhaps the most important item on the national agenda was the drafting of a bill of rights to guarantee the civil rights of US citizens. James Madison led the group that drafted the first ten amendments to the Constitution, collectively known as the Bill of Rights, which the state legislatures ratified in December 1791. The First Amendment guaranteed freedom of expression. The Second gave each state the right to form a citizens' militia, and the third protected the citizens from the imposition of a standing army. The Fourth through Eighth Amendments dealt with fair treatment in judicial proceedings. The Ninth and Tenth Amendments restricted the powers of the national government by declaring that the enumeration of Constitutional rights could not be used to deny citizens of other rights, and that all power not explicitly delegated to the national government fell to the states.

The United States Supreme Court has stated that American citizens have the protection of the Fourth Amendment (freedom from search and seizure absent warrant) when there is a reasonable expectation of privacy. Without a reasonable expectation of privacy, however, there is no privacy right to protect.

"Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment. The Third Amendment in its prohibition against the quartering of soldiers. The Fourth Amendment explicitly affirms 'the right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures'. The Fifth Amendment in its Self Incrimination Clause. The Ninth Amendment provides: 'The Enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Griswold v. Connecticut, 381 U.S. 479 (1965)

Perhaps the most important effect of the drafting of the Constitution was its reaffirmation of the American people, in the broadest sense, as the ultimate source of political legitimacy in the nation, responsible for the selection of their leaders, and shapers of the future of the nation.

Although the world had made great progress in defining human rights, it was the events of the late 1930's and early 1940's that threatened humanity's most firmly held convictions. In the middle of the 20th century, at the hands of a technologically advanced, cultured nation-state, the idea of human rights was simply extinguished. In the beginning, the Nazi regime established discriminatory laws controlling who could own property, hold jobs, and go to school; in the end, they smashed dissent, launched a world war and enslaved and murdered millions of civilians.

The UN Charter gave human rights a new international legal status. It mentioned human rights five times, first in the Preamble, which identifies human rights as one of the four founding purposes of the United Nations. The Charter's first article declares that UN member states must work to "achieve international cooperation . . . in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion." Article 55 states the UN will promote "universal respect for, and observance of, human rights and fundamental freedoms," and Article 56 states that members "pledge themselves to take joint and separate action" to achieve that respect.

In the General Assembly, a final, heroic debate lasted until late in the evening of December 10, 1948. Then the President of the General Assembly called for a vote of the member states of the United Nations for the adoption of the Universal Declaration of Human Rights. Forty-eight nations voted for the Declaration, eight countries abstained (the Soviet bloc countries, South Africa and Saudi Arabia) and two countries were absent -- the community of nations adopted the Universal Declaration of Human Rights without dissent. It was deemed "an historic act, destined to consolidate world peace through the contribution of the United Nations toward the liberation of individuals from the unjustified oppression and constraint to which they are too often subjected."

The Universal Declaration is the primary international articulation of the fundamental and inalienable rights of all members of the human family.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

One additional message of the Humanist tradition was that members of a society need not, indeed must not, give up all of their natural rights in the process of forming a community. Some degree of individual freedom is essential. As Thomas Jefferson expressed it, there still remain the "unalienable" rights to life, liberty and the pursuit of happiness. Immanuel Kant put it most eloquently when, in the Critique of Practical Reason, he asserted, in effect, that those in power should "act so as to treat human beings always as ends and never merely as means."

This fundamental notion of freedom underlies each individual's claim to a right to privacy.

Summary

Privacy has no one single meaning in society; it has many. It is one of many universal rights held to belong to individuals by virtue of their being human, encompassing civil, political, economic, social, and cultural rights and freedoms, and based on the notion of personal human dignity and worth. The idea of human rights appears in some early Christian writers' works and is reflected in the Magna Carta (1215). The concept winds as a philosophical thread through 17th- and 18th-century European and American thought, including the Declaration of Independence (1776). The UN's Universal Declaration of Human Rights (1948) reasserted the concept after the horrors of World War II, and human rights have since become a universally espoused yet widely disregarded concept.

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