Our country’s fathers found themselves in a dilemma ratifying the Constitution. New York, one of the most powerful states, required a Bill of Rights be added before ratification. This was an incredible task for James Madison, the Father of the Constitution. Madison opposed enumerating a Bill of Rights for reasons expressed in the Ninth Amendment. Madison feared the listing of specific rights might be construed as the only rights citizens possessed. He was quite correct in his perception. Advances in technology, such as video cameras, phone taps, and Internet invasion, make privacy a very different issue in the new millennium than it was in 1791. The right to privacy is defined as the right to be protected from unwarranted intrusion by the government, media, or other institutions or individuals. There are many historical court cases dealing with the issue of privacy; some have become landmark cases that have shaped a whole new attitude about American civil rights. A few examples of such cases are The U.S Supreme Court decisions in Griswold vs. Connecticut (1965), and Roe vs. Wade and (1973). In addition to such monumental cases, many more recent, smaller cases have shaped the our right to privacy. Computer and telecommunication advances have made credit, medical, and other data readily available, highly marketable commodities, raising many concerns about individual’s privacy. While few may be inclined to argue against the rights of citizens there is the question of the framers’ original intent in adopting the Ninth Amendment. Most constitutional experts assume Madison meant simply “The enumeration of certain rights, shall not be construed to deny or disparage others retained by the people.” (Amendment IX) However, “The right of the people to be secure in their persons, houses, papers and effects” has become a much more complicated issue than it was in the later part of the 18th century.
The requirement of the states to include a Bill of Rights was ,in theory, a sound idea. The rights of the people should be protected. The times called for a specific list of these rights because of frequent failure to protest them. The purpose of the Bill of Rights was to state the rights of the people and to serve as law to protect them. The Bill of Rights lists both the civil liberties, freedoms guaranteed to an individual, and civil rights, what the government must provide for an individual. The list includes freedom of religion, speech, and press; the right to assemble peaceably and to petition the government, the right to bear arms, and the rights of the accused. The main opposition to the Bill of Rights came from Madison himself. He believed that an enumerated list of rights would limit protection to what is written. This led Madison to include the ninth amendment. The ninth amendment states that “The listing of some rights did not mean that government could infringe on others not listed.” (Ninth Amendment). This amendment is crucial to the lasting protection of rights guaranteed by the Bill of Rights allowing the means of privacy to change with time. Though the Bill of Rights did not settle all the disputes concerning the Constitution it did ,however, establish an outline to be changed and revised as necessary to keep current.
One example of how the Ninth Amendment has benefited the people is in the case of Griswold vs. Connecticut (1965). Estelle Griswold, a director of a family clinic, and Dr. Lee Buxton, a physician at the clinic were convicted of violating a state law prohibiting any distribution or advice about contraception to married couples. The accused believed the law invaded the private aspects of the people. In his ruling Justice Douglas stated “. specific guarantees in the Bill of Rights have penumbras, formed by emations from those guarantees that help give them life and substance.” That means the right to birth control can by no means be expected to be covered in a document written in 1791, yet the right to it can be implied by the power of the Ninth Amendment. This was Madison’s reasoning behind including the amendment, so it would always be able to cover our rights. There was an overabundance of controversy on the ruling. Most of the argument was the inventing of freedoms. In any case Griswold’s fight was monumental in the battle for privacy.
Another landmark case for privacy is Roe vs. Wade (1973). This case was about a woman from Texas who believed a Texas law preventing women from getting an abortion, unless her life was in danger if she went through with the birth, unconstitutional. The main objective was to “…determine the limits of federal court authority in reviewing state court proceedings (Wool,276).Justice Douglas, who also ruled in Griswold vs. Connecticut, played a key role in these proceedings. Douglas’ objective was to get a ruling on abortion, not federal power over states. His feelings were the Government should have no control over a woman’s body. Douglas was delegated the task of writing the Court’s Opinion on the case. It was up to Douglas to win the decision of the other Justices. After many drafts of his proposal, and many rejections from Chief Justice Warren Burger, Douglas was able to win over the ruling. The final solution was to forbid states to regulate abortions in the first trimester, give them the choice to regulate in the second, and the power to ban it in the third. Abortion was a politicians nightmare, for good reason. Abortion is a deep-rooted issue that can be taken the wrong way very easily. The Government was given the job of deciding for a woman whether or not it was legal to kill a fetus. The Government did not want to prohibit a woman from doing what she wanted with her body, but with such a heartfelt topic there are moral issues that the Government could not control, let alone enforce.
Though not as controversial as Griswold vs. Connecticut, and Roe vs. Wade, more recent cases have shapeed our everyday need for privacy. In the last decade alone there have been advances in technology that enable someone to affect a large number of people, in a short amount of time, very easily. Such things as wire taps, microphones and electronic amplifiers, and advances computers, make eavesdropping much easier. A little bit of history of privacy will bring about a better understanding of it now. The phrase, the right “to be let alone” has a long history.
In 1834 the U.S. Supreme Court mentioned that a “defendant asks nothing-wants nothing, but to be let alone until it can be shown that he has violated the rights of another”(Wheaton vs. Peters,33 U.S. 591,634 (1834)). Though the right “to be let alone” is vague in its domain over privacy it has come to mean protection from government invasions on private issues. Prosser, an author of privacy issues stated in his book, Privacy, there are four basic kinds of privacy rights. First, there is the unreasonable intrusion upon the seclusion of another.(e.g. unwarranted entry, spying, phone taps). Second, appropriation of a person’s name or likeness. Third, is the publication of private facts. And last, publication that places a person in a false light, meaning the information released creates a false impression about the plaintiff. Only the second of the four rights is widely accepted in the U.S. Other forms of privacy that have come about because of technology and evolution are the physician-patient, priest-penitent, and the attorney-client relationships. These are all professional ethics that are understood and enforced. With every passing generation there are new challenges to be met in order to insure privacy, not only to the individual but also in the business world.
Unlike individual rights, business information is treated as property right while personal information is not. There are laws protecting businesses from corporate espionage, trademark infringement, and unfair competition. As obscure as it may seem there is even a law mandating privacy of garbage, both corporate and household. In addition to garbage laws there are also precautions taken to prevent invasions of privacy by journalists. The attempt to maintain privacy when times are moving at such a fast pace is a challenging obstacle important to the individual and to business.
The whole idea of individual rights was Madison’s main concern during the drafting of the Bill of Rights. There are a number of issues, not concerning privacy, that have relied on the leverage of the Fourth Amendment. It was Madison’s original intent to create a way to insure the people the right deserved. By stating the people retain the rights listed in the Bill of Rights but are not confined to them. Madison recognized times would change and the rights of the people must be flexible to change with them. The most basic rights are, in figurative language, “carved in stone”,1` but through long hours and exhausting legal wars the rights of the people are again and again being justified by a clause written over 200 years ago. All can be summarized by a passage from a letter Thomas Jefferson wrote to James Madison. Jefferson stated “The earth belongs to the living generation. They manage it then…exercising in fact the power of repeal [which] leaves them as free as if the constitution or law has been expressly limited to nineteen years only.(From letter of September 6, 1789, in Thomas Jefferson, Writings, p. 963)