[6.5] The Right to Privacy.

 

Simon distinguishes between three different legal senses of the word “privacy”:

 

·         tort law sense: [a tort is a harm behavior; torts range from personal physical harms, to preventing others from using or enjoying their property, to damaging their reputation; tort law is the area of law covering such harms and the lawsuits that their victims can bring] in this sense, it is possible to sue others for invading one’s privacy. Invasion of privacy torts include, but are not limited to, public disclosure of private facts.

 

·         constitutional criminal sense: in this sense, the 4^th amendment protects individuals’ privacy against violation by law-enforcement authorities:

 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 

·         constitutional non-criminal sense: in this sense, privacy concerns one’s ability to make important decisions about herself, i.e., it concerns autonomy.

 

Our coverage of constitutional privacy will deal with privacy in the last of the three senses. We will examine a selection of Supreme Court decisions relevant to the issue of privacy, and then consider how contemporary legal scholar Robert Bork has criticized those decisions.

 

 

[6.5.1.] Skinner v. Oklahoma (1942).

 

In this decision, the Supreme Court struck down the Habitual Criminal Sterilization Act of the state of Oklahoma.

 

The law had permitted the state to sterilize anyone convicted of three felonies (serious crimes, as opposed to misdemeanors, or minor crimes) involving “moral turpitude.” Jack T. Skinner, the petitioner in this case, had been convicted of three crimes: two instances of armed robbery, and one instance of theft (for stealing chickens). Skinner was ordered to have a vasectomy.

 

The law explicitly excluded embezzlement (stealing money from an employer) as well as “political offenses” and violations of the prohibition laws. But it covered such petty theft as stealing chickens.

 

The Court found there to be two things wrong with this law:

·         it constituted unequal treatment for individuals who had behaved in essentially the same way, and thus violated the Equal Protection Clause of the 14^th amendment:

 

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

·         the nature of the punishment itself—sterilization has an impact on some of the most personal aspects of one’s life, viz. marriage and reproduction. The majority decision reads in part:

 

We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, farreaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. (319)[1]

 

This decision does not mention privacy, but it paved the way for later important decisions which did bring the right to privacy into focus.

 

cf. Buck v. Bell (1927, only fifteen years prior to Skinner), in which Holmes had written that “three generations of imbeciles is enough.” Skinner ended compulsory sterilization for punishment, but not the sort (sterilization of the “feeble-minded”) upheld in Buck.

 

 

[6.5.2.] Poe v. Ullman (1961).

 

[This case is not mentioned in your textbook.]

 

This case challenged Connecticut’s anti-contraception statute, which outlawed the prevention of conception with a drug or device; it also prohibited doctors from advising their patients about the use of contraception. (This is the same statute challenged in Griswold v. Connecticut (1965), which we discussed previously and which we will return to soon.)

 

The plaintiffs were two married women and their doctor. They sued on the grounds that the anti-contraception law prevented the doctor from disseminating advice required by the two patients.

 

The majority of the Court rejected their case, since the law in question had not been enforced since it was enacted in 1879.

 

Justice John Marshall Harlan II wrote a widely quoted dissenting opinion in this case. He argued that the law does in fact violate the Due Process Clause of the 14^th amendment:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

It is this outlook which has led the Court continuingly to perceive distinctions in the imperative character of Constitutional provisions, since that character must be discerned from a particular provision's larger context. And inasmuch as this context is one not of words, but of ... history and purposes, the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints ...[2]

 

Harlan is clearly relying on the substantive component of the Due Process Clause:

 

substantive due process (df.): protection against any unreasonable or arbitrary law, e.g., laws restricting the ability of bakeshop owners and their workers to enter into employment contracts [as in Lochner v. New York (1905), which struck down New York’s Bakeshop Act].

 

 

[6.5.3.] Griswold v. Connecticut (1965).

 

Shortly after Poe v. Ullman, Estelle Griswold and C. Lee Buxton established an office of Planned Parenthood in New Haven, CT.

 

Both Griswold and Lee were convicted as accessories to the crime of using a drug or device to prevent conception. Each was fined $100. Their convictions were upheld on appeal by the Connecticut Supreme Court (then known as the Connecticut Supreme Court of Errors). Griswold and Lee appealed their convictions to the U.S. Supreme Court.

 

A 7-2 majority of the Court found that such laws violate citizens’ constitutional right to privacy. Although there is no such right enumerated specifically in the Constitution, “the First Amendment has a penumbra where privacy is protected from governmental intrusion.” Justice William O. Douglas wrote for the majority:

 

... specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, ... (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (320)[3]

 

Justice Harlan referred to the Due Process Clause in his concurring opinion:

 

In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values "implicit in the concept of ordered liberty,".... For reasons stated at length in my dissenting opinion in Poe v. Ullman, supra, I believe that it does. While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.[4]

 

But as Simon notes, “some critics found [Justice] Douglas [author of the majority opinion] creating a right out of thin air to justify his values.” (317)

 

 

[6.5.4.] Bork Against Constitutional Privacy Rights.

 

Robert Bork (b.1927 in Philadelphia, PA)

·         conservative legal scholar

·         earned Bachelor’s degree and law degree from the University of Chicago

·         went into private practice before becoming a professor of law at Yale University; while there, one of his students was future-president Bill Clinton

·         at various times he worked for the federal government as Solicitor General, acting Attorney General, and a circuit court judge.

·         nominated for the Supreme Court by President Reagan in 1987, but after a very contentious process, the Senate failed to confirm him

·         an advocate of originalism, according to which the Constitution should be interpreted according to the original intent of its authors (other proponents of originalism focus, not on original intent, but on original meaning, what the words of the Constitution would have meant to a reasonable English-speaker at the time it was written). Wrote Bork,

 

The judge’s authority [to interpret the constitution] derives entirely from the fact that he is applying the law and not his personal values ... [The only legitimate way to find the law] is by attempting to discern ... the intentions of ... those ... who ratified our Constitution and its various amendments. The judge’s responsibility is to discern how the framers’ values, defined in the context of the world they knew, apply in the world we know. If a judge abandons intention as his guide, there is no law available to him and he ... goes beyond this legitimate power.[5]

 

Our reading is an excerpt from Bork, “Neutral Principles and Some First Amendment Problems,” 47 Indiana Law Journal 1, 1971.

 

 

[6.5.4.1.] Griswold as a Failure of Neutrality.

 

Bork distinguishes three types of neutrality: neutrality in…

·         application of legal principles

·         definition of legal principles

·         derivation of legal principles

 

On his view, judges must engage in all three types of neutrality if they “are to avoid imposing their own values upon the rest of us.”

 

He asks, what principle is it that governed the majority decision in Griswold? He considers the following answers:

 

“Government may not interfere with any acts done in private.”

·         The Court would never apply this principle neutrally, since it is too broad. Applying it neutrally would require that we allow heroin use or sexual relations with minors, so long as they are done in private.

 

“Government may not prohibit the use of contraceptives by married couples.”

·         The Court could apply this neutrally, but it raises questions of neutral definition and neutral derivation...

 

·         neutral definition: “Why does the principle extend only to married couples? Why, out of all forms of sexual behavior, only to the use of contraceptives? Why, out of all forms of behavior, only to sex?”

·         He puts the point regarding definition in this general way: “If a neutral judge must demonstrate why principle X applies to cases A and B but not to case C ..., he must, by the same token, also explain why the principle is defined as X rather than as X minus, which would cover A but not cases B and C, or as X plus, which would cover all cases, A, B and C.” (322)

 

·         neutral derivation: “What justifies any limitation upon legislatures in this area? What is the origin of any principle one may state?” (322)

·         He puts the point about derivation in this general way: “[A neutral judge] must explain why X is a proper principle of limitation on majority power at all. Why should he not choose non-X?” (322)

 

Bork takes Griswold to be an illustration of the failure of neutrality stemming from the Court’s refusal to interpret the Constitution according to originalist standards.

 

[He notes that earlier he had accepted a very different view, according to which “new basic rights could be derived logically by finding and extrapolating a more general principle of individual autonomy underlying the particular guarantees of the Bill of Rights.” (322) Although Bork does not mention it by name, this sounds a lot like legal formalism and Langdell’s casebook method.]

 

 

[6.5.4.2.] Courts Cannot Choose Fundamental Values.

 

Bork’s view seems to be that these problems with neutrality are inescapable, once it is assumed that a judge may import values into a decision that are not already explicitly laid out in the constitution: “...the choice of ‘fundamental values’ by the Court cannot be justified. Where constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other.” (322)

 

There was no way for the Court to arrive at its Griswold decision in a “principled,” way, since to do so they had to go far beyond the intended meaning of the Constitution:

 

Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratifications of the two groups. When the Constitution has not spoken, the Court will be able to find no scale, other than its own value preferences, upon which to weigh the respective claims to pleasure. (323)

 

In the Griswold case, the competing “gratifications” at issue are the moral gratification of the majority of the citizens of Connecticut (who are displeased at the thought of married couples using contraceptives) and the sexual gratification of the couples who want to use contraception.

 

There is no principled way to decide that one’s man’s gratifications are more deserving than another. Why is sexual gratification more worthy than moral gratification? Why is sexual gratification nobler than economic gratification? There is no way of deciding these matters other than by reference to some system of moral or ethical values that has no objective or intrinsic validity of its own and about which men can and do differ. Where the Constitution does not embody the moral or ethical choice, the judge has no basis other than his own values upon which to set aside the community judgment embodied in the statute. That, by definition, is an inadequate basis for judicial supremacy. (323-24)

 

Bork’s view of legislatures is very different... “Legislation requires value choice and cannot be principled in the sense under discussion. Courts must accept any value choice the legislature makes unless it clearly runs contrary to a choice made in the framing of the Constitution.” (324)

 

 

[6.5.4.3.] Away With Substantive Due Process.

 

The conclusion that Bork draws for much recent constitutional law is harsh: “substantive due process, revived by the Griswold case, is and always has been an improper doctrine. ...”

 

Substantive due process requires the Court to say, without guidance from the Constitution, which liberties or gratifications may be infringed by majorities and which may not. This means that Griswold’s antecedents were also wrongly decided ... in Lochner, Justice Peckham, defending liberty from what he conceived as a mere meddlesome interference, asked, “[A]re we all ... at the mercy of legislative majorities?” The correct answer, where the Constitution does not speak, must be “yes.” (324)

 

 

Stopping point for Monday April 16. For next time, read pp.326-37.