It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [57]
Moreover, additional amendments in the Bill of Rights address the issue of what we call privacy. The Third Amendment, which holds, “No Soldier shall . . . be quartered in any house, without the consent of the Owner,” was directed at the British quartering of troops in the colonists’ homes; an egregious violation of security for an eighteenth-century mind and privacy to a twenty-first-century mind. The Founders were determined not to repeat history. They assured the colonists their homes would no longer be invaded on a whim by the agents of the government, and their privacy there would be secure.
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The Ninth Amendment then clearly states, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”6 The rights retained by the people are the unalienable natural rights, with which you are born. Natural rights can be compared to a sphere within which “individuals must remain free from [government] interference.”7 Privacy is essential to this sphere, and relates to the right or the ability of individuals to determine how much and what information about themselves is to be revealed to others. Additionally, privacy relates to the idea of autonomy, the freedom of individuals to perform or not perform certain acts, or subject themselves to certain experiences.8
For example, the German physicist Werner Heisenberg discovered the principle of uncertainty, or the Heisenberg Effect. The Heisenberg Effect stands for the principle that no individual can repeat the same performance unobserved as he can while being observed. In other words, we change or conform our behaviors when we know we are being watched. Take, for example, your daily job. When the boss is known to be in the office, most individuals are much more diligent than when they know no one is watching their daily actions. The same can be said for cameras on every street corner. If you know you are being filmed and want to whisper “sweet nothings” into your partner’s ears, you may refrain from doing so because you know a uniformed policeman may be watching and listening on the other end. Thus, observation alone changes individuals’ actions and strips them of their natural right to be left alone.
You’re Safe Nowhere: From Polaroids to Street Cameras
While today the natural right of privacy is widely recognized (and widely ignored), the right to be left alone was not always easily conceptualized. While our forefathers inherently valued their privacy, it was not until 1890 that the right to privacy entered the United States as a rational legal theory. In 1890, Justice Louis Brandeis recognized individuals’ desire to remain anonymous.9 In his now famous Harvard Law Review article, “The Right to Privacy,” Justice Brandeis introduced the concept of a right to privacy when he stated, “The right to life has come to mean the right to enjoy life,—the right to be le[f]t alone.”10 Moreover, the article reveals that Justice Brandeis was influenced to write on the right to be left alone in large measure by the then growing trend in technological advances.
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Justice Brandeis would be horrified today if he observed the erosion of our right to privacy. In 1890, Brandeis expressed concern over the growing trend in technological advances because he worried that “instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed