First and foremost, the right to privacy is a considerably “new” legal concept. The term was first coined by Samuel Warren and Supreme Court Justice Louis Brandeis in their 1890’s The Right to Privacy. But what exactly merits a right to privacy? Without clarification from the Constitution, it would appear that justices and scholars alike are to be left bewildered. However, if this past year has taught me anything about the American Constitution, it is that really nobody, except strict hard-core originalists, really know what to think of the document. If we believe it to be living, open to interpretation based on current events and the political climate, then one would believe that anything really has the potential to be a right to privacy case. This assumption is made with the rationale that one accepts an alternative to conservative legal theories.
The past eight years presented a series of unique opportunities: progressive politics pushed its way back into the spotlight as a worthy challenge to originalism. The confirmation of Supreme Court Justices Sotomayor and Kagan, both nominated by Democratic President Obama, symbolized a transitional period. This period would be one surrounding many important social issues, including same-sex marriage and challenges to reproductive rights. Such matters are widely considered to fall under the scope of “the right to privacy.” Arguably, if it were not for an amalgamation of the election of a Democratic president, a left-wing shift of the American public, progressive politics would not have prevailed.
Obama has long advocated a view that the Constitution must be interpreted to reflect the changing norms and understandings of an evolving society. In his The Audacity of Hope, he wrote, “Before the ink on the constitutional parchment was dry, arguments had erupted, not just about minor provisions, but about first principles. Not just between peripheral figures, but within the revolution’s very core.” Evidently, I praise Obama’s dedication to securing privacy rights – albeit indirectly – with his nominations of Sotomayor and Kagan to the Court.
These nominations will not guarantee that such rights are entirely respected. However, with the Democratic Party having to seriously consider the extent to which they will embrace progressive politics, I am interested to see how prospective leaders will channel Warren’s and Brandeis’ creation of a right to privacy. We understand that the term “right to privacy” is so often thrown around despite its legal, theoretical and political ambiguities. Nevertheless, Justice Brandeis, in particular, understood how cultural shifts and social movements could respect privacy, ‘an already existing common law right which embodied protections for individuals’ “inviolate personality.”’ By using precedent, we enter into somewhat of a paradox if we are attempting to understand privacy regarding progressive politics. However, if all I can be accused of is paradoxical reasoning all the while I protect the inherent rights and freedoms of individuals, then let this paradox define me and progressive politics in the years to come.