It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [58]
Yet, it would be thirty-eight years before Brandeis advanced this theory in the Supreme Court. In the famous case of Olmstead v. United States (1928), the majority of the Supreme Court held the government’s wiretapping of private telephone conversations to be constitutional under the Fourth and Fifth Amendments. Justice Brandeis’s dissenting opinion, which set the precedent for future cases, gave us the phrase, “the right to be left alone.” Justice Brandeis wrote,
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be le[f]t alone—the most comprehensive of rights and the right most valued by civilized men.12 (Emphases added)
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Brandeis was correct in his analysis of the Constitution. Nowhere in the Constitution is the government granted the power to monitor or regulate our daily conduct. Remember, the Constitution grants power to the federal government and retains for the states and people that which is not granted. It keeps the government off our backs. (Well, it is intended to do that.) We retain all unalienable rights, and the right of privacy—the right to be left alone—is certainly one of them. By simply being human, all persons have a right to privacy existing far before the founding of the United States. As the majority of the Supreme Court wrote in the case of Griswold v. Connecticut (1965), “We deal with a right to privacy older than the Bill of Rights [and] older than our political parties.” That sentence alone acknowledges privacy as a natural, or if you prefer the secular term, fundamental, right, which cannot be taken away without due process of the law.
For example, suppose you have a collection of rare coins. You’ve spent years acquiring these coins and have searched all over the world for them. In doing so, you’ve catalogued each and every detail of the individual coins and placed them in a special cabinet. Does the government have the right to observe and copy your catalogue and publish its own catalogue of your coins? Most certainly not! This is your private collection of coins, which you choose to keep for yourself. The government cannot view these coins without violating your natural right to privacy.
The Government’s Intrusion on This Right: Marriage
The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever; their position or station, from having matters which they may properly prefer to keep private, made public against their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented.
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—JUSTICE LOUIS D. BRANDEIS
Why must we seek the approval of the government to enter into marriages? For centuries, governments never interfered with marriages, but rather they were based on religion, parental choice, culture, tradition, and the mutual love of two persons. It certainly is not the government’s role to meddle in your most personal of affairs. If the decision-making process that leads to the free choice to marry another person is not considered private, then what can be considered private? Again, our right to privacy stems