Back in 1789, John Adams and others forming the new United States recognized a head-scratching potential issue with the yet-to-be-ratified First Amendment and other state constitutional provisions like it: If language promised broad press and speech freedoms, what did that mean for publishers who might reveal “instances of male conduct”? How would a newspaper react if it shared embarrassing stories about politicians who were shady or immoral?
William Cushing, a man who’d soon become one of the very first Justices on the U.S. Supreme Court, suggested in a letter to Adams that it might well be the manCushing wrote that the information was not protected by law but the author of the information. “My question is this,” Cushing wrote, referring to language championing the importance of the freedom of the press. “Whether it is consistent with this article, to deem & adjudge any publications of the press, punishable as libels, that may arraign the conduct of persons in office, charging them with instances of male conduct repugnant to the duty of their offices & to the public good & Safety;—Where such charges are supportable by the truth of fact?” “Doubtless,” he wrote, the liberty of the press “may & ought to be restrainable” in certain cases.
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Adams agreed. “You may easily conceive a Case, when a Scandalous Truth may be told of a Man, without any honest motive, and merely from malice,” he replied to Cushing. “[I]n Such a Case, Morality and religion would forbid a Man from doing Mischief merely from Malevolence, and I thought that Law would give damages.” Revealing instances of male conduct in print or otherwise without “Some just Cause for publishing” would, he suggested, be punishable despite whatever freedom of the press might be guaranteed.
The two men didn’t use the word privacy and they didn’t say specifically that the sexual privacy interests of men should generally trump other constitutional interests, but that was precisely the uptake of their back-and-forth. These interests are protected in any country that values speech and press freedoms.
Nearly 250 years later, that’s newly relevant. Because it’s overturning Roe V. Wade and rejecting constitutional protection for a woman’s right to choose abortion, the Supreme Court has now made clear that the historical attitudes of the men who framed and ratified the Constitution long ago will control the extent of privacy rights today. The majority opinion is in Dobbs v. Jackson Women’s Health Organization, the only sorts of privacy interests that can qualify as fundamental rights under the Constitution are those found in the text of the Constitution or “deeply rooted in the Nation’s history and traditions.”
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Since privacy is not mentioned in the Constitution, abortion’s claim to protection then hinged on history. In a rebuke to its predecessors, the Court Roe Fundamental constitutional protection against abortion must be based on the current acknowledgement of the personal stake that women have in decisions regarding whether they want to give birth or carry out a pregnancy. The Court warned that such judgements on the extraordinary needs of women were too similar to extra-judicial policymaking. It was only by validating history that a non-textual constitutional right, such as the privacy right could be enforced.
And history—evidenced by the views of the framers and the laws of their day—did not look favorably on women’s right to make their own decisions about a pregnancy. “[A]n unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law,” the majority wrote.
All of this was what led to women losing their rights that the courts recognized for half a century: privacy regarding the choice of abortion.
But that other sort of privacy—the one discussed reverentially at the dawn of the nation by Adams and Cushing, the one that seemingly protected Men at the start—was not lost in Dobbs. There, the majority noted that “the right to shield information from disclosure” was a “very different” sort of privacy, not implicated in the Court’s rollback of constitutional autonomy rights.
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Prioritizing the first goes beyond any discussions between founders. Consider that in the early 1800s, one court protected a man’s love letter. “How many serious things, proper to be communicated in the privacy of one’s correspondence, are unfit for the public eye,” that judge asked rhetorically. In 1845, the Supreme Court suggested that to say that “a man” had “the itch” (which is what they called sexually transmitted infections back then), even if true, was a legal wrong because it was scandalous and men deserved better: “If we look to the position of men in common life, we see the law drawing providently around them every security for their safety and their peace,” the Court wrote. A famous law review article titled “The Right to Privacy” was published in part to protect Grover Cleveland’s privacy interests in his dalliances and to keep journalists away. There are many more.
It’s no wonder that the Restatement of Torts, a highly influential legal treatise of sorts still in use today, summed up the law this way in 1977: privacy interests protect a number of things, including “most details of a man’sLife in the home of his family, with some extras HisThe past has been a source of inspiration He would rather forget.” The italics are mine, but the choice of language is not.
In short, the solicitude of the framers and our “deeply rooted” legal traditions for the privacy interests of men stands in notable contrast with the glaring absence of solicitude for the privacy interests of women in the Supreme Court’s recent decision in Dobbs.
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It is this that the dissenters in DobbsIt was pointed out that the people in charge in those early days, and more recent years, paid little attention. women’sPrivacy interests in the sexuality of sex and pregnancy were a matter for all men. Men wrote the Constitution, laws, and court opinions, and, primarily, 1977 the Restatement.
The result is the stark contrast in the sensitivity of the long-ago male framers to male privacy rights and what they actually did. Dobbs majority found to be their ready tolerance of government interference with the private choices of women underscores the peril of looking to past generations—especially past generations of men alone—in defining the scope of constitutional rights for all today.
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