For the second annual Nation Student Writing Contest, we asked students to send us an original, unpublished 800-word essay discussing what they consider the most important issue for young people in the 2008 presidential campaign. We received more than 600 submissions from high school and college students in forty-one states. The entries arrived from big public institutions and tiny liberal arts colleges, from rural high schools, Indian reservations and large cities. The students who entered the contest are afraid of being drafted, worried about their friends serving in Iraq, struggling with debt and gas prices and anxious about the world they will inherit. We chose one winning essay–by Ryan Thoreson of Fargo, North Dakota, a recent graduate of Harvard University, printed below–and five finalists, whose essays you can read at www.thenation.com/student. Thoreson receives a cash award of $1,000, and the finalists each receive $250. All receive Nation subscriptions. This contest was made possible by the BIL Charitable Trust to recognize and reward the best in student writing and thinking. –The Editors
In an age when YouTube and blogging make
every gaffe on the campaign trail virtually inescapable, the right to privacy may seem like a quaintly anachronistic value–especially to the candidates. This situation may be what Supreme Court Justice Louis Brandeis foresaw in his 1928 dissent in Olmstead v. United States. Brandeis argued that increasingly intrusive technology required that the Constitution protect “the right to be let alone…the right most valued by civilized men.”
While Americans never amended the Constitution to include that right explicitly, a series of piecemeal decisions culminated in the Warren Court’s ruling in Griswold v. Connecticut, which held that statewide bans on contraception violated the right to marital privacy. Writing for a seven-to-two majority, Justice William Douglas affirmed a “zone of privacy created by several fundamental constitutional guarantees,” found in the “penumbra” of the First, Third, Fourth, Fifth and Ninth amendments. Griswold paved the way for landmark cases like Roe v. Wade and Lawrence v. Texas, making it one of the most influential (and controversial) precedents in recent history.
But as the eightieth anniversary of Olmstead approaches, this patchwork quilt of precedent is growing threadbare. Lawmakers have seemingly discarded privacy, chipping away at that right in the name of collective concerns like productivity, security and public morality. The conservative members of the Supreme Court are skeptical of its validity; in their dissents in Lawrence, Justice Antonin Scalia qualified privacy as a “so-called” right, while Justice Clarence Thomas maintained that a constitutional right to privacy simply does not exist.
In 2008 the electorate’s top priority should be the re-establishment of a right that has been under siege for decades. Privacy should not only include the “penumbra” of protections enshrined in the Bill of Rights; the right to privacy should distinguish private pursuits from public responsibilities and should safeguard our bodies and behaviors against the whims of the majority. Candidates should promote and respect a right to privacy, either by observing that right as a first principle of policy-making or proposing a constitutional amendment that would enshrine it in law. While a balance must undoubtedly be struck between individual rights and collective responsibilities, a right to privacy would solidly establish a presumption in favor of individual choice, reversing our deification of the anxieties and values of the majority that guide our policy-making.
The controversial actions of elected officials have bluntly demonstrated that Americans can no longer take privacy for granted. Since 9/11 a climate of fear and hysteria has been coupled with intrusive technology that puts any de facto right to privacy in an increasingly precarious position. Leaders on both sides of the aisle have embraced unprecedented intrusions into the private lives of Americans with laws like the Patriot Act and the Military Commissions Act, stripping away basic search-and-seizure protections. In many instances, the specter of terrorism has been used to justify illegal wiretapping without warrants, extraordinary renditions and torture. In instances such as these–when the state asserts a compelling interest in detention and interrogation–a vigorous defense of the right to be let alone would affirm principles like habeas corpus, due process and trial by a jury of one’s peers, protections that safeguard the individual first and foremost.
By explicitly supporting a right to privacy, presidential candidates could also help settle some of the most divisive and protracted disputes of our time. The shift would be particularly important in cases where intrusive measures are used to monitor those who merely seem suspicious or commit essentially victimless crimes. The tone and tenor of debates about racial profiling, workplace privacy, low-level drug use, sexual harassment, reproductive rights and consensual sex between adults would be radically different with the seemingly benign acknowledgment that Americans deserve their personal privacy. On social issues where a small segment of the public has exerted enormous influence, Americans are constantly reminded that faith, patriotism and markets can rob us of our ability to govern ourselves if we allow those forces to regulate the private behavior of everyone else. As a right that resonates with the mainstream as much as it protects the marginalized, privacy may decisively settle these controversial debates about self-governance and bodily integrity.
A truly expansive reading of the right to privacy might also be used to combat unnecessary intrusions of public interest on our private well-being. For example, candidates could stress that poverty robs us of privacy when the lives of welfare recipients are closely monitored and residents of housing projects have their units ransacked unannounced. And with the expansion of cyberspace and surveillance, privacy lays the groundwork for progress in areas that we, like Justice Brandeis, may not yet be able to imagine.
We have never needed our leaders to insist on the right to privacy as much as we do today, when the privacy of individual citizens has rapidly eroded without any corresponding increase in public transparency and accountability. Obviously, no candidate in 2008 will be able to single-handedly establish a right to privacy–but by insisting on privacy as a guiding principle for policy-making and an ideological cornerstone of our government, candidates have the potential to revive an ideal that’s been under renewed attack since 2001. And when they do, they can rest assured that YouTube will capture the moment for generations of profoundly grateful Americans.