Dignity as a New Framework, Replacing the Right to Privacy

52 Pages Posted: 6 May 2008

Abstract

Privacy if not now, will soon be a dead letter in legal analysis. However, the related concept of dignity will fill the void; and make sense out of a tangled area of law.

Whether the Court is protecting invasions of privacy under tort law, the Fourth Amendment, the First Amendment or those fundamental rights, it is dignity that serves as their common bond. The several cases discussed in this article, reveal the frequent inability of the Court to discuss privacy without referencing dignity, or one of its synonyms: i.e. respect, value, self-worth, self-respect, etc. Thus, it is suggested that the Court is truly protecting human dignity as the underlying value of privacy.

In the context of the Fourth Amendment or invasion of privacy under tort law, the question of whether privacy still exists arises. With modern technology, the concept of privacy diminishes. Even with fundamental rights, is the right to marriage, procreation, family relationships, child-rearing and education, homosexual sodomy, or even the right to die properly termed privacy? It is apparent that true rights are undoubtedly associated with human dignity, for inherent in all of these privileges is the ability to freely determine one's path without inviting judgment of the state. This liberty creates individuality and sustains the right to be individuals, and in every sense of the word promotes self-respect, self-worth, and value. More accurately stated, this is dignity. Although limitations must exist for a properly functioning society, the interest in maintaining an open and free nation demands that legislatures and courts protect this core value.

Privacy can promote crime, but dignity promotes only goodness. The cases discussed illustrate such analysis is already being adopted, and thus upholding dignity as a protected value is not only plausible, it is proven to be possible by its subtle, already existing application. Without nationally recognizing the need for re-focus, the right to erroneous enforcement of a privacy right will continue to remove certain freedoms that are necessary for our Republic to prosper, remain free, and allow men and women to live and die seeking happiness. Additionally, once realized that privacy is a legal fiction, its amorphous contours can be trimmed, with principal, and expanded, again when such is with principal. The widespread problem of private child abuse and child pornography indicates that privacy is not a good in itself. However, dignity is always good and always must be maximized insofar as possible.

The continued use of the fiction privacy, places our glorious country in danger. Dignity is one such legal value and right that without which our system cannot endure. Additionally, once perceived it will undoubtedly aid in creating stability and predictability in several areas of the law.

Keywords: Dignity, Privacy, Legal Fictions

Suggested Citation

Miller, Jeremy M., Dignity as a New Framework, Replacing the Right to Privacy. Thomas Jefferson Law Review, Vol. 30, No. 1, 2007. Available at SSRN: https://ssrn.com/abstract=1127986

Jeremy M. Miller (Contact Author)

affiliation not provided to SSRN

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