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Privacy and the American Constitution


William C. Heffernan

Privacy and the American Constitution New Rights Through Interpretation of an Old Text


William C. Heffernan John Jay College of Criminal Justice City University of New York John Jay College of Criminal Justice New York, New York, USA

ISBN 978-3-319-43134-5 DOI 10.1007/978-3-319-43135-2

ISBN 978-3-319-43135-2 (eBook)

Library of Congress Control Number: 2016948367 © The Editor(s) (if applicable) and The Author(s) 2016 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. Cover illustration: © Cultura RM / Alamy Stock Photo Printed on acid-free paper This Palgrave Macmillan imprint is published by Springer Nature The registered company is Springer International Publishing AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland


Acknowledgements

In writing law review articles on the Fourth Amendment and its exclusionary rule over the course of the last 20 years, I routinely encountered comments in Court opinions about the Constitution’s solicitude for privacy. At first, I took those comments as givens and simply used them to buttress positions I was advancing. But after a while I began to wonder about the source of the rights I was taking for granted. In particular, I wondered how a text that explicitly protects property, free speech, and religious conscience but says nothing about privacy can nonetheless be said to protect it—and can be said to protect it more robustly, at least on some occasions, than it protects property rights. It’s important, then, for me to start out by acknowledging that the questions posed in this book were prompted by judicial opinions themselves—by textually unsupported claims about the Constitution’s concern for privacy. As I tried to fill in the blanks left by Supreme Court opinions that discuss privacy, I found I was coming up with blanks of my own. I’m grateful to Mike Cullina, John Laffey, and Steve Wasserman for putting up with my speculative arguments as I felt my way through the perplexing issues associated with interpretive supplementation of the constitutional text. My friends’ influence was indirect, but it contributed immeasurably to my work. Had I not been able to talk to them about

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the questions at stake here, I would never have been able to work out the framework I propose in the book. I couldn’t ask for more supportive friends than these. Once I’d written an earlier draft, they were kind enough to explain to me why they thought I’m still mistaken. I needed to measure my ideas against theirs, if only to reaffirm (for myself at least) the soundness of my approach to constitutional law. My family has been consistently supportive as well. Denise, Sarah, David, and Michael contributed to this book by providing me with the love that makes it possible to get down to work with full confidence that there’s a rich emotional world to which one can return. In the end, that world matters more than the one an author imagines while writing. A good book emerges through the interplay of an author’s imagination and the setting in which he lives. If this book is sound, this is because I was confident about the context of my everyday life. As for editorial work on the completed manuscript, my thanks to Elena Fichtel for her conscientious proofreading efforts and for preparing the book’s index. My Palgrave editors, Josie Taylor and Stephanie Carey, and my Palgrave production manager, Sundar Ananthapadmanabhan, have been unfailingly helpful as well. I’m grateful to them for smoothing the way from manuscript completion to final production. My last acknowledgement is to my parents. Although they are no longer alive, my parents were committed to the conception of the Constitution that informs the entire book. Indeed, my mother’s Shorter Hours: A Study of the Movement since the Civil War contributed to my own understanding of constitutional change. Although I never had a chance to discuss the book’s argument with them, I absorbed its key features as I grew up. The book is dedicated to them, in loving memory of all they did and what they stood for.


Contents

Introduction

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Part I Moving from the Said to the Unsaid Chapter 1: Constitutional Afterthoughts

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Chapter 2: The Right to Wear a Hat—and Other Afterthoughts

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Chapter 3: Developmental Supplementation

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Part II A Genealogy of Constitutional Privacy Rights Chapter 4: From Property to Privacy: The Eighteenth Century Background

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Chapter 5: The Emergence of Privacy Norms in Nineteenth Century America

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Chapter 6: The Nineteenth Century Court Reads the Eighteenth Century Text

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Chapter 7: From Thoughts and Beliefs to Emotions and Sensations: Brandeis on the Right to Be Let Alone

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Chapter 8: An Exercise in Supplementation That Failed: The Rise and Fall of Freedom of Contract

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Part III The Modern System of Privacy Rights Chapter 9: Ambitious Supplementation: Griswold on Penumbral Emanations from the Bill of Rights

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Chapter 10: Unobtrusive Supplementation: Katz, Whalen, and the New Era of Informational Privacy

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Chapter 11: Informational Privacy Imperiled: Protecting Core Elements of Personal Control while Insuring Public Safety

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Chapter 12: Reappraising the Constitutional Past: Rights of Personal Autonomy

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Afterword

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Appendix A Privacy in the Supreme Court: A Complete Listing of References to the Term in the First 175 Years of United States Reports

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Appendix B Privacy and the Fourth Amendment Exclusionary Rule

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Index

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List of Tables

Table 1.1 Table 9.1

JustiďŹ catory arguments for supplementing the text’s enumeration of powers and rights An interlocking system of constitutionally protected privacy rights: The mid-twentieth century synthesis

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Introduction

In modern constitutional law, privacy is the hero with a thousand faces. The term privacy doesn’t appear in the constitutional text. There is no reference to the concept in debates at the Philadelphia Convention, nor did anyone mention it while deliberating about the Bill of Rights. Rather, privacy is a contemporary concern: it is a constitutional afterthought that has secured its place in doctrine through modern glosses on an old text. Many claims concerning privacy today are based on the Fourth Amendment’s prohibition of unreasonable searches and seizures.1 Some are advanced on the basis of an implicit First Amendment right to associational freedom.2 The Fifth Amendment’s right against compulsory self-incrimination has been said to protect a privacy interest against forced disclosure of information.3 And in discussing reproductive freedom, the Court has attempted a holistic

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The leading case is Katz v. United States, 389 U.S. 347 (1967). See, e.g., Roberts v. Jaycees, 468 U.S. 609 (1984). 3 See Tehan v. United States ex Rel. Shott, 382 U.S. 406 (1966). 2

© The Author(s) 2016 W.C. Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_1

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analysis of the Bill of Rights, speaking of penumbras of privacy that emanate from different portions of the text.4 On the modern Court’s analysis, the concept pervades the Constitution even though privacy isn’t mentioned in the text. Clearly, there is an air of improvisation—an air of desperation, some might say—associated with efforts to establish the textual provenance of privacy rights. Even the provision most obviously relevant to privacy (the Fourth Amendment’s prohibition on unreasonable searches and seizures) comes up short as far as privacy is concerned, in part because the amendment is pertinent only to certain types of privacy (shielding information from outsiders and insuring personal seclusion), in part because the amendment deals with matters unrelated to privacy— seizures of the person and property, for instance. Other provisions have an even more remote connection. The First Amendment free speech clause is, at most, tangentially concerned with privacy issues. It is only by holding that there is a free speech right to join associations that one can speak of a further associational right to resist forced disclosure of its membership list. As for the Fifth and Fourteenth Amendment due process clauses, these have no readily apparent connection to privacy whatsoever. They have to be treated as catch-all provisions for interests not protected elsewhere in the text in order to say they have a bearing on matters such as sexual freedom and reproductive choice. In standing back, it is possible to discern a powerful dynamic that accounts for this improvisational approach to constitutional interpretation. Privacy was an issue of modest concern in the late eighteenth century. It came to matter more in the nineteenth century, more still in the twentieth, and looms even larger in our time. Technological change has contributed to its enhanced importance. As devices were produced for gathering and storing information about personal behavior, the public has come to treat privacy as a critical value in social life.

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See Griswold v. Connecticut, 381 U.S. 479 (1965).


Introduction

3

Technology alone does not, however, account for privacy’s enhanced importance in American life. Privacy also started to matter more as individualism came to the fore as a key social value. The emerging importance of individualism in American life is discernible in part through the development of new linguistic terms: concepts such as identity formation5 and presentation of the self 6 were unknown at the time the Constitution was drafted but have become common features of modern discourse. Individualism’s enhanced importance is also discernible in altered living arrangements (in the increased number of people who live alone7 and also in the declining number of siblings who have to share bedrooms8), in divorce rates,9 and in public statements about sexual orientation.10 The word privacy functions as an umbrella term for autonomy issues related to the matters just mentioned. In turn, courts have fashioned constitutional doctrine to accommodate changes in the nation’s baseline of practices and values. Indeed, there is a synchronicity associated with the development of constitutional privacy rights. Social change and doctrinal change have occurred in tandem. But this is merely a descriptive point. Even if sound, it establishes at most that a developing national commitment to the values associated with privacy was a catalyst to the judiciary’s elaboration of a system of constitutionally protected privacy rights. The further question to ask is whether courts have properly reasoned in terms of such a system. Indeed, because even the Fourth Amendment offers only incidental protection of privacy interests, it might be contended that the concept of privacy should receive no direct constitutional protection whatsoever. In this 5

For a classic study that relies on this concept, see Erik H. Erikson, Identity: Youth and Crisis (1968). 6 Erving Goffman appears to have coined this term, which has now become a part of everyday discourse. See his The Presentation of Self in Everyday Life (1959). 7 See Eric Klinenberg’s Going Solo: The Extraordinary Rise and Surprising Appeal of Living Alone (2012). 8 For a survey of trends, see Carla I. Perdone, The Challenges Facing Federal Rental Assistance Programs 39–41 (1994). 9 See Elaine Taylor May, Great Expectations: Marriage and Divorce in Post-Victorian America (1980). 10 For a self-help book concerning this, see Michelangelo Signorile, Outing Yourself: How to Come Out as Lesbian or Gay to Your Family, Friends, or Coworkers (2012).


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book, I argue that it should. The contemporary system of judicially created privacy rights, while by no means immune from criticism, is a triumph of constitutional modernization, I contend. It complements the eighteenth century inventory of rights. In doing so, it extends the scope of liberty beyond the founders’ republican conception of liberty by treating intimate life as an essential component of human freedom. The book relies on two different strands of thought—one concerned with the concept of privacy, the other with constitutional interpretation— to defend this argument as to the propriety of developmental change. At a conceptual matter, it divides privacy into multiple components. But while severable, it argues, the different facets of privacy have a complementary relationship with one another, for the term privacy, at its most general, suggests a number of interrelated claims that promote the possibility of a life conducted free from outside social pressure.11 Control over the informational sources of one’s life is a key feature of this general concern, so I argue that the nouns persons, houses, papers, and effects can’t be said to limit the Fourth Amendment’s scope but should instead be taken to indicate a larger concern with protecting those facets of seclusion and informational control essential to personal life. In turn, I suggest that this capacious reading of the Fourth Amendment is properly understood 11

Other commentators have suggested that privacy has multiple, severable components. For example, James Whitman states that “[t]here is no such thing as privacy as such” (James Whitman, “The Two Western Cultures of Privacy: Dignity Versus Liberty,” 113 Yale Law Journal 1151, 1221 (2004)) and Daniel Solove insists that privacy is “a plurality of different things” (Daniel Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security 24 (2011)). One thus might say that privacy is a term that “evokes a cluster of ideas, rather than a sharply chiseled concept” (Peter Galison and Martha Minow, “Our Privacy: Ourselves in the Age of Technological Intrusions,” in Richard Ashby Wilson, ed., Human Rights in the War on Terror 258, 269 (2005)) provided allowance is made for the complementary relationship between the severable components of the concept. Furthermore, one can also distinguish, as Thomas Crocker helpfully does, between shallow and deep privacy (Thomas Crocker, “Ubiquitous Privacy,” 66 Oklahoma Law Review 791, 796 (2014)), provided the complementary nature of the different types of privacy is borne in mind. Edward White is the commentator who has come closest to endorsing the position taken here that insists on complementary facets of privacy. “Privacy,” he writes, is understandable in terms of “the autonomy of one’s person and one’s interest in being secluded” (G. Edward White, Patterns of American Legal Thought 47 (1978)). Helpful as White’s comments are, it’s unclear why he failed to mention control over the informational sources of one’s life. After all, he proposed his definition a decade after the Court resolved Katz v. United States.


Introduction

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as part of an even larger constitutional commitment to protecting autonomous choice within personal life. An argument of this kind cannot be accommodated within the clausebound textualism that is a hallmark of most litigation. Nor is it compatible with the inclination of many interpreters to appeal to the thick body of understandings entertained by those who ratified the text. The argument concerning constitutional interpretation that informs the book is that neither of these should be honored in applying the text to contemporary life. Privacy is indeed a constitutional afterthought, one concerned with values (such as the development of deviant sexual identities) the framers would almost surely not have endorsed. This doesn’t mean, though, that a dimension of liberty not taken seriously at the outset but compatible with the Constitution’s commitment to individual freedom can’t be incorporated into doctrine at a later time. On the contrary, although it is essential to treat the Constitution as a plan of government, to use James Madison’s term,12 what was proposed in Philadelphia in 1787 and adopted in the following months must be understood as a scheme that can reasonably be interpreted to include post-founding developments not anticipated at the outset but nonetheless consistent with its informing purposes. It is in this sense that one can speak of privacy as protected by implied and unenumerated constitutional rights. The drafting strategy for the Constitution was to enumerate—to list in catalogue form—the government’s powers and the rights individuals may claim against it. As the text has endured, afterthoughts have been incorporated into doctrine through interpretive analysis that has emphasized the affinity between framing-era values and those that have come to the fore since adoption. Privacy is the pre-eminent afterthought of modern constitutional doctrine, one whose affinity with concepts mentioned in the text can be established not merely by consideration of semantic ties but also by the emergence of post-founding practices that further the traditions of individual freedom. In examining privacy, we have a chance to consider a genealogy of constitutional rights, one in which afterthoughts have been integrated into

See Federalist 39 240 (Clinton Rossiter, ed., 1961), where Madison speaks of “the plan of government reported by the Convention.” 12


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doctrine in the absence of Article V deliberation. The remaining portions of this Introduction comment generally on this point while noting its particular relevance to privacy rights.

Accommodating Constitutional Afterthoughts: Supplementing the Enumeration of Rights while Bypassing Article V “I like my privacy as much as the next one,” Justice Hugo Black remarked during the course of his dissent in the 1965 case of Griswold v. Connecticut, “but I am nonetheless compelled to admit that government has a right to invade it unless prohibited by a specific constitutional provision.”13 Black’s statement may at first sight seem convincing—and so may seem devastating for claims about the legitimacy of constitutional privacy rights. The American Constitution is a written one. Its words are subject to interpretation, but when there are no words that bear on a given issue, someone adopting Black’s position would argue, there is nothing to interpret. Privacy isn’t in the text, so on this analysis, government has a free rein with respect to it unless restrained by specific prohibitions that have a bearing on it. But if in the text is the decisive criterion for determining what’s constitutional, surely a great deal of constitutional law is problematic. The text doesn’t grant the Supreme Court power to overrule executive- or legislative-branch interpretations of the Constitution.14 It doesn’t grant the

13

Griswold v. Connecticut, 381 U.S. 507, 510 (1965) (Black, J., dissenting). In Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court self-interestedly assigned itself the role of final interpreter of the Constitution’s meaning. There is nothing in the text that directly supports this claim. Indeed, President Jackson adopted a “departmental theory” of the Constitution. On Jackson’s account, the Court has “no more authority over Congress than the opinion of Congress has over judges, and on that point the President is independent of both” (“Veto Message of July 10, 1832,” in James Richardson, ed., A Compilation of the Messages and Papers of the Presidents 576, 582 (1907)). 14


Introduction

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President authority to dismiss cabinet officials.15 As for rights, the text says nothing about a right of freedom of association,16 a right of freedom of expression,17 or an equal protection right that can be asserted against the federal government.18 But despite textual silence each of these powers and rights is an essential component of modern constitutional law. Moreover, they are afterthoughts. Some qualify for this label in the colloquial sense of the term—that is, the ratifiers seem not even to have considered, say, the possibility of a right of freedom of expression that protects communicative nonverbal acts, nor did they consider whether coordinate branches of the federal government must honor the Court’s determination of the text’s meaning. More importantly, everything just mentioned qualifies as a constitutional afterthought in the special sense used here, for all can be classified as norms that have achieved constitutional standing without having been adopted pursuant to Article V. They are interpretive afterthoughts, in other words, for they have been incorporated into doctrine in part on the basis of accommodative modifications of practice by different branches of the government, in part on the basis of judicial pronouncements about the constitutionality of matters not addressed in the text. Black accepted each of the interpretive afterthoughts mentioned in the preceding paragraph. Because he did, it seems clear that not in the text can’t serve as a sufficient reason to account for his rejection of privacy as a constitutional right. Is a different justification for his conclusions nonetheless possible? Might it be said that the presumption against constitutionality associated with not in the text is overcome on a showing that a norm not mentioned can nonetheless be accorded constitutional standing if it follows as a matter of logical necessity from what

In Federalist 77, Hamilton asserts, in the face of textual silence on the issue, that the “the consent of [the Senate] would be necessary to displace as well as appoint” cabinet members. See supra note 12, at 459. The First Congress did not adopt Hamilton’s position. 16 See NAACP v. Alabama ex rel. Patterson, 357 U.S. 460 (1958) for an early case in which the Court reasons in terms of an implied right of freedom of association. 17 See United States v. O’Brien, 391 U.S. 367 (1968) for a case that reasons in terms of an implied right of freedom of expression. 18 See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), for a case that reasons in terms of an implied equal protection right that can be asserted against the federal government. 15


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the text actually does discuss? This hypothesis is certainly plausible. It offers no support, however, for the unmentioned norms just noted, for none of the supplementary powers or rights considered earlier can be classified as logically necessary derivations from the text. Rather, the powers and rights at stake here are understandable in terms of their affinity with that which is enumerated. Their legitimacy is understandable in terms of textual intimations: that is, in offering justifications for them an interpreter treats the text as suggestive of a larger body of rights and powers and so extends its inventory of enumerated rights and powers to further the project inaugurated at the outset. To reason in this way isn’t to think in terms of an unwritten Constitution.19 Instead, it is to accept the authority of that which has been written down and to construct further constitutional principles in light of this, with the process of development informed by support for those principles discernible over the course of the nation’s history.20 The supplementary powers and rights just noted are understandable in terms of these points. The doctrine that other branches of government must honor the judiciary’s pronouncements on the Constitution’s meaning complements the text but doesn’t follow from it as a matter of logical necessity. It distills the experience of the nation—that is, it ratifies a national consensus that has developed gradually, and somewhat fitfully, since the eighteenth century concerning the Court’s role in 19

Christopher Tiedeman inaugurated discussion of this subject in The Unwritten Constitution of the United States (1890). Thomas Grey’s “Do We Have an Unwritten Constitution?” 27 Stanford Law Review 703 (1975) prompted modern scholarly interest in it. Akhil Amar is a contemporary proponent of the unwritten constitution thesis. See his America’s Unwritten Constitution: The Precedents and Principles We Live By (2012). Because Amar treats the text as a platform for moving from the said to the unsaid, it might be argued that his thesis is compatible with what I call interpretive supplementation. But Amar includes more than this in his discussion of the unwritten constitution. For instance, he speaks of “bedrock ideas from the Warren Court era” as components of his term (see id. 595, n. 9). I thus avoid his terminology while emphasizing, as he does, the long-standing tradition of adding unmentioned rights and powers to those enumerated in the text. 20 In this respect, the inquiry here complements the one into everyday understandings of the law undertaken by Patricia Ewick and Susan Silbey in The Common Place of Law: Stories from Everyday Life (1998). My concern is with the high officials’ construction of legality whereas Ewick and Silbey are concerned with citzens’ everyday practice. Like them, though, I focus on “legality [as] an emergent feature of social relations . . . ” (Id. 17).


Introduction

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national affairs. A similar point is in order about the equal protection right that can be asserted against the federal government. This complements the equal protection right the Fourteenth Amendment declares against the states. It does not, however, follow ineluctably from section one of that amendment. Rather, the equal protection right against the federal government expresses a national consensus that crystallized long after the Fourteenth Amendment’s adoption, one that was expressed by decisions such as President Truman’s to require integration of the armed forces,21 and that was accorded constitutional standing in the Court’s opinion in the 1954 case of Bolling v. Sharpe.22 It might be contended that these powers and rights are latent in the text. To take this position, however, is to introduce a problematic category into constitutional interpretation. In arguing for the legitimacy of (most of) the Court’s privacy conclusions (and so in challenging arguments such as the one Black employed in his Griswold dissent), I rely on a less contestable framework. Judicial interpreters may properly extend the rights/powers inventory, I suggest, provided three conditions are met for doing so. First, no supplementary constitutional norm may directly contradict the mandates and prohibitions contained in the text. Second, when enlarging on rights and powers, interpreters must identify supplementary norms that comport with the text’s overall design. And third, in venturing beyond the text, interpreters must reach conclusions that are compatible with a post-founding consensus about either the proper role of government or the proper scope of individual rights. When venturing beyond the text in this way, interpreters reason in terms of a developmental constitution, one in which supplemental norms compatible with explicit ones take on constitutional standing by virtue of their status as constitutive components of national life. Privacy rights, I argue throughout the book, are understandable in terms of the points just mentioned. These rights do not run afoul of any textual prohibitions or mandates. They have a conceptual affinity

21

For an examination of President Truman’s 1948 executive order, see Morris MacGregor, Integration of the Armed Forces, 1940–1965 (1985). 22 347 U.S. 490 (1954).


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to property rights, whose textual credentials are beyond dispute. And since at least the mid-twentieth century privacy rights have been the subject of a substantial national consensus. When talking about property, one reasons in terms of an exclusionary practice. Privacy’s origins, I suggest, are also to be found in an exclusionary practice—that is, in the way insiders exclude outsiders from tangible property such as the home and personal papers (both subjects of explicit Fourth Amendment protection). As a system of privacy rights developed in social life, people began to grasp the value of excluding others not merely from tangible objects but also from the informational traces of their lives. For eighteenth century commentators (and for the Constitution’s draftsmen), it was reasonable to think of privacy as a subcategory of a larger one labeled property. With the development of technologies and with the emergence of an assertive individualism, the notion of privacy acquired standing in social thought as a category meriting consideration in its own right. It is in this sense that there is a genealogy of privacy rights, one that makes it reasonable to speak of a modern, relatively well-integrated system of implied and unenumerated rights but not of such a system for the early republic. To understand why it’s appropriate to engage in an exercise of interpretive supplementation long after the text’s adoption, it is essential to consider the sense in which Madison characterized the Constitution as a plan of government. If we think of the Constitution as a blueprint—as the equivalent of an architect’s rendering of precisely what was to come to later—then of course the answer must be that privacy rights are constitutionally illegitimate (and, indeed, the answer would have to be that even minor modifications of the plan undertaken shortly after its adoption are illegitimate, for blueprints do not permit deviations of any kind). On the other hand, if we think of a plan as a scheme—as something that sets a direction but that vests discretion in those executing it to work out its principles in practice— then the case for privacy rights as a constitutionally legitimate form of interpretive supplementation becomes at least plausible. As it happens, two major dictionaries of the founding era—Samuel Johnson’s 1755 Dictionary of the English Language and Noah Webster’s 1828 American Dictionary of the English Language—define plan as a


Introduction

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scheme.23 Needless to say, this point isn’t sufficient to warrant concluding that Madison and his fellow-ratifiers thought of the text as a scheme subject to interpretive supplementation by the judiciary. During the course of the book, I consider other arguments about founding-era understandings that support the claim that it is proper for interpreters to supplement the text provided the three criteria already mentioned are satisfied. Indeed, I suggest that Madison and other founders were open to the legitimacy of developmental supplementation—that is, I contend that Madison and other members of his generation were open to interpretive extensions that went beyond the understandings they entertained at the moment of ratification about the way in which the text would be applied. Privacy rights are among the most important modern examples of developmental supplementation. They don’t break dramatically with the past. They do, however, work an important variation on the republican consensus that existed at the time of the founding, one that emphasizes self-fulfillment rather than civic virtue. A genealogy of privacy rights concedes the importance of this point. It grants that privacy’s inclusion in the range of protected rights is understandable in terms of a more individualistic conception of liberty than the one entertained at the time of the founding. But it insists as well on continuity between past and present—on developmental, and incremental, change, in other words rather than a sharp departure from what was said at the outset.

The Modern System of Privacy Rights Because concern about privacy developed gradually over the course of the republic’s first century, one can’t point to a single moment in time when people settled on the exclusionary conventions essential to

Johnson’s entries for plan (as noun) are “a scheme, a form, a model.” See 2 Samuel Johnson, Dictionary of the English Language 354 (2nd ed. 1755). Webster provides two definitions of plan (as noun): (1) “a draught or form” and (2) “a scheme devised.” See his American Dictionary of the English Language (1828) at www.1828.mshaffer.com/d/word/plan.

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privacy norms. No one agreed at some point in time that closing a door or sealing an envelope should be taken as a signal indicating an interest in privacy. Similarly, no one agreed that, signals such as these having been sent, an obligation arises requiring respect for the interest in seclusion and informational privacy associated with them. With no formal agreements having been reached concerning these matters, courts have not had a body of authoritatively stated norms on which to draw in articulating privacy doctrine. Rather, they have accorded legal force to an informally generated order discernible in social conventions. Society, in other words, has been treated as the source of constitutional norms, not the legal materials typically viewed as the source of law. Confirmation of this point can be found in the way the Court resolved Katz v. United States, the 1967 case that serves as a declaration of independence for informational privacy rights. At stake in Katz was the lawfulness of an electronic eavesdropping operation, undertaken without a warrant, of conversations conducted in a phone booth. At the time Katz was decided, there was no body of law prohibiting eavesdropping on phone conversations.24 And of course there was no law of the phone booth on which the Court could rely. Because the Katz Court had no authoritative sources of law that invalidated the government operation, it accorded legal standing to everyday privacy conventions. Someone who “shut[s] the door” to a phone booth is “surely entitled” to assume that outsiders will respect the signal he’s sent, Katz concludes.25 Justice Harlan’s concurring opinion in Katz reinforces this point by stating that the Fourth Amendment protects those “expectation[s] of privacy that society is prepared to recognize as ‘reasonable.’”26 Harlan’s remark takes it for granted that there is an already-existing system of informal privacy norms compatible with the text’s commitment to individual liberty. Constitutional interpretation,

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Indeed, there was a body of law that permitted nontrespassory warrantless electronic surveillance of phone conversations. The leading case was Olmstead v. United States, 277 U.S. 438 (1928). 25 Katz, 389 U.S. at 352, overruling Olmstead. 26 Katz at 361 (Harlan, J., concurring).


Introduction

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it thus suggests, must aim at articulating those norms and protecting them against government incursion. This is surely a sound way to begin thinking about constitutional privacy rights, for it concedes by implication that the norms at stake can’t be found in founding-era comments on the text but that they nonetheless merit constitutional protection. Harlan’s remark is no more than a starting point for thinking about privacy, however. In building on it, I suggest that privacy conventions, as they have emerged over the centuries, are understandable in terms of three enduring characteristics. First, they are paradigmatically concerned with two-party, insider/outsider relationships. Second, the outer boundaries of such relationships are understandable in terms of the function of seclusion and informational privacy—that is, the exclusionary practices employed for each type of privacy are accepted as legitimate because of their contribution to individual dignity and personal flourishing. And third, the terms of exclusion are enforced not merely by physical barriers (though these are of course often matter a great deal) but also by outsiders’ adoption of conventions that call for restraint with respect to those on the inside. It is only by considering these factors in conjunction with one another that one can grasp the difference between privacy and solitude on the one hand and privacy and secrecy on the other. Think first about solitude. Someone can simply be alone—that is, aloneness doesn’t necessarily involve exclusion of others, though it of course sometimes does, so solitude need not have anything to do with the more complex, and freighted, relationships associated with privacy.27 As for secrecy, exclusion is essential here, but privacy-exclusion imposes obligations on outsiders in ways mere secrecy doesn’t. When it’s clear that privacy is at stake (for example, when someone closes the door to a bathroom), social conventions call on outsiders to exercise

27 I use solitude rather than isolation, but each connotes the possibility of being alone without relying on an exclusionary practice. An examination of privacy that contrasts it with isolation can be found in Julie Inness, Privacy, Intimacy, and Isolation (1996).


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restraint precisely because it appears that an insider is engaged in an activity associated with personal life. Secrecy, in contrast, has no necessary connection to the conditions of personal flourishing. Corporations protect trade secrets, governments guard state secrets— but while exclusion is essential to informational control in these settings, what is kept from others has no bearing on personal life.28 Thus with privacy, but not necessarily with secrecy, one encounters a web of complex obligations outsiders are expected to honor given their function in promoting the well-being of insiders. Put differently, privacy, unlike secrecy, operates by means of a network of reciprocal obligations, with individuals accepting their role as outsiders in anticipation of a later time in which they will be insiders. During the course of the book, I endorse Katz’s turn to privacy as an independent constitutional norm. I do not, however, endorse some of the Court’s conclusions concerning the content of those norms. In particular, I suggest that the Court has often interpreted those norms without sufficient regard for privacy’s function in protecting individual dignity. It has reasoned in terms of a vigilance, rather than a forbearance, model of informational privacy, I suggest—and so has placed excessive emphasis on the precautionary steps insiders take to keep people out and disregarded the restraint outsiders are expected to exercise once it’s clear someone is trying to exclude others from the personal sources of her life.29 The Court has not invariably reasoned in terms of a vigilance conception of privacy, I point out. In the 2000 case of Bond v. United States, for instance, it held that once someone has zipped up an opaque duffel bag, a government agent intrudes on the owner’s privacy interests by squeezing it from the outside to determine its contents.30 On a vigilance conception of privacy, squeezing such a 28 It’s thus significant that statutes are framed in terms of corporate and government secrecy, not in terms of corporate and government privacy. See, e.g., 18 U.S.C. 1832 (“Theft of Trade Secrets”). 29 In distinguishing between vigilance and forbearance models of informational privacy protection during the course of the book, I draw on William Heffernan, “Fourth Amendment Privacy Interests,” 92 Journal of Criminal Law and Criminology 1 (2001). 30 Bond v. United States, 529 U.S. 334 (2000).


Introduction

15

bag is an acceptable practice, for travelers assume the risk, a proponent of this version of privacy would say, that outsiders will squeeze their luggage, shake it, or turn it upside down to see if anything happens to fall out—do anything, in other words, other than open it (for this would stand as a flagrant breach of privacy conventions that’s intolerable even on a vigilance model) to find out more about its contents. Bond rejects the vigilance premises just noted. It reasons in terms of an obligation of restraint an outsider must honor once an insider has signaled an interest in privacy by zipping her baggage. Bond, however, is an exception to a general pattern in post-Katz cases, for these have typically emphasized vigilance over forbearance. In questioning the soundness of the positions the Court has taken, I outline the possibility of a regime of constitutional protection for privacy informed by forbearance considerations. By adopting this approach, I suggest, we can emphasize the mutually reinforcing role of different components of the system of privacy rights—seclusion, control over the informational sources of one’s life, and personal autonomy. Although the Court has reached conclusions that protect each type of privacy just mentioned, it has rarely noted how they converge in protecting individuals in the conduct of personal life. The forbearance model, I suggest, is valuable because it affirms this point—and so affirms the importance of an approach to privacy that cuts across different specific provisions of the constitutional text.

Insuring Privacy Against Incursions by the Surveillance State Phone booths are fast disappearing from everyday life. As they’ve become obsolete, the significance of Katz’s reference to “shut[ting] the door” against the outside world may cease to be clear to later generations. This point about the obsolescence of specific practices has a bearing on constitutional privacy rights, however, only if Harlan’s Katz remark is understood to refer to concrete, locationspecific social norms—to phone booth etiquette, for instance. In the book’s later chapters, I suggest that the Harlan Katz concurrence can


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be interpreted in a different way. It can be understood, I argue, to refer to the structure and function of privacy conventions. As for structure, these conventions perform complementary roles, with seclusion and informational control furthering the possibility of personal autonomy. As for function, the first two components matter because the third is an end in itself—that is, it’s because people highly value the opportunity to order their personal lives that seclusion and informational control are also deemed important. In suggesting that society’s expectations of privacy are understandable in terms of the notion of forbearance, I thus argue that outsider restraint is essential to the autonomy considerations that inform privacy rights. Drawing on the forbearance model in the later chapters of the book, I propose options for addressing novel privacy claims, not merely those associated with innovative technologies but also those that depart from traditional mores. As far as the latter is concerned, forbearance will be critical in the future since restraint in the face of deviant behavior is essential to the very notion of respect for each person’s authority to make decisions concerning his or her life. The privacy rights associated with autonomy—not merely rights that protect sexual and reproductive choice but also those concerned with other features of personal life (modes of dying,31 for instance, or the selection of a housemate32)— are understandable in terms of the restraint expected of outsiders on encountering behavior they consider improper but that nonetheless causes no direct harm to others. The restraint at stake here has much in common with toleration—not, of course, with toleration as that concept was originally applied to deviations from religious orthodoxy but rather toleration in a broader sense that accepts, perhaps reluctantly, norms of forbearance on being confronted with distasteful, but not harmful, behavior.

31 The Court addressed this issue in Cruzan v. Director, Mo. Department of Health, 497 U.S. 261 (1990). 32 The Court considered this issue, in the context of a challenge to a zoning regulation, in Moore v. City of East Cleveland, 431 U.S. 494 (1977).


Introduction

17

The Court’s conclusion in Lawrence v. Texas, the 2003 case that affirms a constitutional right to engage in consensual sodomy,33 is understandable in terms of this point. The Lawrence right is centrally concerned with forbearance—with the toleration expected of those who disapprove of gay sex. It is of course impossible to imagine a nineteenth century, or even an early twentieth century, court deriving such a right from the text. That such a right is legitimate today is attributable not only to the abstract principle of tolerating difference but also to a trajectory of national development that has produced a national consensus that accepts novel ways of conducting personal life. On this analysis, it will be noted, new rights can properly be announced against a backdrop of national change. Lawrence underscores the possibility of developmental constitutionalism in the early twenty-first century. Other types of rights associated with personal autonomy are likely to emerge in later years, I argue in the book’s final section. A somewhat different consideration must be borne in mind when thinking about forbearance’s bearing on informational privacy. In the past, forbearance required that people refrain from everyday snooping. Today, snooping has a high-tech face. Data-mining, global positioning surveillance, the development of face- and hand-recognition software— innovations of this kind have enough in common with past practice that they can still be classified as snooping, though they are more ominous given the possibility of blanket surveillance of personal life. In the years following Katz, the Court did not attend as carefully as it should have, I suggest, to the technological potential of modern surveillance. Recent Court decisions, however—in particular, those in United States v. Jones34 and Riley v. California35—suggest the possibility of greater judicial appreciation of the threat to informational privacy posed by contemporary technology. I build on these decisions to outline a program of privacy protection that strikes a sensible balance between individual freedom and public security.

33

Lawrence v. Texas, 539 U.S. 558 (2003). United States v. Jones, 132 S.Ct. 945 (2012). 35 Riley v. California, 134 S.Ct. 2473 (2014). 34


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The Plan of the Book The book is divided into three sections. The first outlines a developmental framework of constitutional interpretation. The second proposes a genealogy of privacy rights. The third assesses the modern system of constitutional privacy protection. Throughout, I argue for a historicallyinformed notion of American constitutionalism. It would be fatuous to suggest that many of the privacy rights now recognized by the Court would have been considered legitimate in the late eighteenth century. It’s thus essential to rely on a theory of constitutionalism that can account for this. The interpretive framework I propose here—a framework that endorses, under suitable conditions, judicial supplementation of powers and rights expressly mentioned in the text—offers a way to reconcile the written character of the Constitution with the developmental trajectory of doctrine. It’s arguable that a developmental framework is relevant to rights expressly recognized in the text. First Amendment free speech rights and the Eighth Amendment right to be free of cruel and unusual punishments, to cite two obvious examples, are approached today from a perspective that departs radically from the one taken by judges of the early republic.36 Moreover, the doctrinal changes that have been imposed on these portions of the text are understandable not merely in terms of formal modifications of the law but in terms of social transformations that sustain what the courts have said.37 But even if this point is valid, a distinction should still be drawn between privacy rights and those just mentioned, for while one can speak of the development of, say, free speech rights (and so emphasize the difference between early and contemporary conceptions of these), one has to speak of a genealogy of privacy rights, for these have emerged without reliance on Article V This point is examined at length in William Heffernan, “Constitutional Historicism: An Examination of the Eighth Amendment Evolving Standards of Decency Test,” 54 American University Law Review 1355 (2005). 37 Philippe Nonet and Philip Selznick speak of “responsive law,” an apt label for the study of interpretive supplementation undertaken here. See their Law and Society in Transition: Toward Responsive Law (1978). 36


Introduction

19

deliberation and have been incorporated into law on the basis of their compatibility with rights adopted in more conventional ways. Examination of privacy rights thus provides an opportunity to consider the growth of constitutional law independently of the text. A further point is in order here. Analysis of the history of privacy rights underscores the way in which judges, in the course of accommodating social change, have sought to improve on earlier doctrine. Law “works itself pure,” William Murray, later to become Lord Mansfield, remarked while arguing as Solicitor General in the 1745 case of Omychund v. Barker.38 Murray’s claim continues to have resonance today. The commitment judges have brought to privacy rights over the course of the last century and a half is understandable in terms of an ongoing effort to improve on, while also preserving, values established at the time of the republic’s founding. In this respect, a genealogy of privacy rights underscores the possibility of managed change within an ongoing tradition. It’s arguable that the concept of managed change is essential to all features of constitutional interpretation, but whatever the merits of this general claim it’s clear that privacy rights have to be understood in terms of a multi-generational process of reappraisal of commitments entertained at the outset.

38

Omychund v. Barker, 1 Atk. 21 (1745).


Part I Moving from the Said to the Unsaid


Chapter 1: Constitutional Afterthoughts

Although the term privacy doesn’t appear in the Constitution, it figures prominently in modern declarations of human rights and in state constitutions. The Universal Declaration of Human Rights, adopted by the United Nations in 1948, states, for instance: No one shall be subjected to arbitrary interference with his privacy, home, or correspondence, nor to attacks on his honour and reputation.1

The European Convention on Human Rights, ratified two years later, provides: Everyone has the right to respect for his private and family life, his home, and his correspondence.2

1 2

Universal Declaration of Human Rights, Article XII. European Convention on Human Rights, Article VIII.

© The Author(s) 2016 W.C. Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_2

23


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Privacy is also mentioned in ten state constitutions.3 The California State Constitution, ratified in 1976, is expansive on the subject. It borrows a famous phrase from a document adopted exactly two centuries earlier in the course of recognizing a privacy right: All people are by nature free and independent and have inalienable rights. Among these are enjoying life and liberty, acquiring, possessing, and protecting property, and pursuing safety, happiness, and privacy.4

In relying on any of these provisions, an interpreter might reason in terms of a comprehensive right to privacy, one that protects an interest in informational control, another in seclusion, and yet another in decisional autonomy concerning the terms of personal life. These components of the comprehensive right are distinct, of course. It’s possible to live one’s life in public—and also possible to relinquish claims to personal autonomy even in the seclusion of one’s home. But for most people, these are complementary values. That is, most people want to be free of surveillance not because they consider this intrinsically valuable but instead because they consider this an instrumental value that enhances the possibility of autonomous decision-making. The provisions just noted are compatible with this comprehensive conception of privacy. Phrases such as private and family life (the European Convention) or pursuing safety, happiness, and privacy (the California Constitution) serve as platforms for the judicial elaboration of a set of specific rights informed by a comprehensive version of individual freedom from government interference in the conduct of personal life.5 The text of the American Constitution, in contrast, has no provision of comparable breadth. Just as the rights-declarations quoted above show

3

See Alaska Constitution, Article I, Section 22; Arizona Constitution, Article II, Section 8; California Constitution, Article I, Section 1; Florida Constitution, Article I, Section 23; Hawaii Constitution, Article I, Section 6; Illinois Constitution, Article I, Section 6; Louisiana Constitution, Article I, Section 5; Montana Constitution, Article II, Section 10; South Carolina Constitution, Article I, Section 10; and Washington Constitution, Article I, Section 7. 4 California State Constitution, Article I, Section 1. 5 See, e.g., Mark Janis et al., European Human Rights Law 437–56 (3rd ed. 2008).


Chapter 1: Constitutional Afterthoughts

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their twentieth century pedigree through the protection they offer privacy, the American Constitution shows its roots in the eighteenth and nineteenth centuries through its silence on the subject. The founders’ commitment was to republicanism, a term whose Latin source (res publica) evinces a concern with public, not private, matters. The Bill of Rights is primarily concerned with the freedom to engage in the public sphere; it is less concerned with the right to withdraw into private life. It thus might seem surprising, given the text’s silence about privacy and the framers’ inclination to think in terms of public liberty, that modern American constitutional law protects privacy in a relatively robust way. Over the last half century or so, the Court has reasoned as if the text contains a phrase like one of those found in international declarations of rights or the California Constitution. It has, in effect, engrafted the concept of privacy into constitutional law, according it critical importance despite the fact that the word never appears in the text. Is this proper? Is it proper for the Court to elevate a concept of relatively modest, perhaps even slightly suspect, standing at the time of the founding to a central role in modern doctrine? If we reason in terms of what the text specifically mentions, the answer must be no. On the other hand, if we consider provisions that appear to invite supplementation of enumerated powers and rights, a different answer is possible. Given the necessary and proper clause, an interpreter might argue, it’s reasonable to think in terms of implied powers that further those expressly granted the federal government. Given the Ninth Amendment, it could also be said, the text appears to invite supplementation of its list of rights. Afterthoughts can be incorporated into doctrine by means of interpretation, someone endorsing this line of reasoning might contend, therefore making it legitimate to bypass Article V. In this chapter and the two that follow, I offer a qualified defense of this position. The framework I propose relies on James Madison’s Federalist 39 remark that the text is “the plan of government reported by the Philadelphia Convention.”6 In building on Madison’s comment, I examine two of its premises: that planning is an exercise in forethought

6

The Federalist 39 (James Madison) in The Federalist Papers 421 (Clinton Rossiter, ed., 1961).


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and that in implementing a plan someone must honor the terms it lays down. I further note, though, that not all plans are rigid. Needless to say, some plans prohibit interpretive supplementation—and so are rigid indeed. Other plans, however, allow for supplementation of matters not addressed at the moment of adoption but compatible with their terms. When a plan permits this, an interpreter may properly extend the plan by moving from what was said to what wasn’t. Extension doesn’t subvert a plan, an interpreter can claim. Instead, it builds on information not available at the time the plan was conceived to further its general aims, though not necessarily along the lines anticipated by the original draftsmen. Interpretive supplementation of the text has been a component of American constitutionalism from the late eighteenth century onward. Supplementation is necessarily improvisatory. In moving from what was said to what wasn’t, an interpreter has to consider the conceptual distance between a mentioned and an omitted category and so can’t rely on a precise metric to determine the propriety of her extension of the text. This point is pertinent to privacy rights, but long before privacy rights came to be entrenched in constitutional doctrine, interpreters posed other improvisatory questions about supplementation. My primary aim in these introductory chapters is to establish the legitimacy of interpretive supplementation. In doing so, I discuss privacy rights only in passing. The points made here nonetheless address something critical about privacy rights, for in reviewing the framework of interpretive supplementation, I note that privacy is not a deviant component of American constitutional law but instead is a modern embodiment of long-standing practice. This chapter is divided into two sections, each concerned with questions central to interpretive supplementation: whether to treat a given provision as a platform for extending the range of rights of powers and, assuming a positive answer to this, how to do so. The first section examines pre-ratification commentary on these questions. The second focuses on Madison’s post-ratification remarks concerning how to supplement the text. Because the topics considered here involve government powers rather than individual rights, they have only a formal connection to modern debates about the legitimacy of constitutional privacy protection.


Chapter 1: Constitutional Afterthoughts

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In thinking about them, though, we have a chance to consider carefully the criteria appropriate for interpretive supplementation on behalf of privacy rights.

Amendment vs. Interpretation: Two Options for Supplementing the Text’s Enumeration of Rights and Powers There is no doubt that rights and powers have often been established by means of interpretive supplementation. Some members of the founding generation expressed unease, however, about the possibility of bypassing Article V. “Our peculiar security lies in a written Constitution,” Thomas Jefferson remarked in an 1803 letter to Wilson Nicholas while considering the desirability of seeking an amendment to authorize the Louisiana Purchase. “Let us not make it a blank paper by construction.”7 Jefferson’s remark addresses the whether question bearing on interpretive supplementation. Though not unequivocally opposed to supplementation, Jefferson’s statement relies on a presumption in favor of Article V. Acting on this presumption, Jefferson drafted an amendment that addresses issues not considered in the text. Jefferson’s draft amendment authorized national expansion beyond the boundaries established by the 1783 treaty with Great Britain; it also dealt with the question of citizenship status for residents of acquired territories. Concerning this latter issue, the draft stated that the “white inhabitants [of the Louisiana territory] shall be citizens and stand, as to their rights & obligations, on the same footing with other citizens of the United States in analogous situations.”8 Needless to say, no such amendment was adopted. Given Jefferson’s reference to white inhabitants, one might argue that his decision to bypass Article V should be a source of satisfaction: had his draft been 7

Jefferson to Wilson Cary Nicholas, September 7, 1803 in 8 The Works of Thomas Jefferson 247 (Paul Ford, ed., 1894). 8 Jefferson Draft Amendment, supra note 7, at 10 Works 3–4.


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adopted it would have provided direct support for Chief Justice Taney’s Dred Scott claim that African-Americans were ineligible, as a matter of original understanding, for United States citizenship.9 But a more general issue is at stake here, for Jefferson was concerned with textual incompleteness—with the text’s silence on the issue of federal acquisition of territory beyond the country’s original boundaries. Incompleteness is a relative term: a plan is incomplete when measured against a further step that could have been taken but wasn’t. As far as the Constitution is concerned, there are matters where this could have might be contested. National expansion isn’t one of these issues, however, for the Articles of Confederation, adopted in 1781, state that Canada may be incorporated into the United States.10 Because the Philadelphia Convention could have dealt with expansion as well, it’s reasonable to say that Jefferson thought reproachfully about the framers’ failure to address the possibility of national expansion given discussion of this prior to ratification.11 Another definitional point has to be considered in light of Jefferson’s decision to bypass Article V, for Jefferson can be said to have opted for interpretive supplementation to address the constitutional afterthought of national expansion. Like incompleteness, afterthought is a relative term. For afterthought, the key relational concept is forethought, a necessary feature of planning. Article V offers a way to deal with planning failures. Interpretive supplementation stands as an alternative to Article V, though, provided the already-existing plan offers sufficient resources for deriving an unmentioned right or power from those mentioned. It’s in this sense that I use the term constitutional afterthought to talk about matters such as privacy rights, rights of freedom of expression, a right to travel, and of course the power to acquire territory from foreign countries. Needless to say, many afterthoughts have been incorporated into the text by means of Article V. There’s no need to speak of an amendment as a constitutional afterthought, however, for once a revision is

9

Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 404 (1857). Articles of Confederation, Article XI. 11 Gouverneur Morris commented on the Convention’s awareness of the possibility of national expansion. See Max Farrand, The Framing of the Constitution of the United States 143–4 (2000). 10


Chapter 1: Constitutional Afterthoughts

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adopted pursuant to Article V the text actually says what it could have said in the first place. In contrast, constitutional afterthought offers a useful way to think about norms that have achieved constitutional standing by means of interpretive supplementation. That is, we can say that constitutional afterthoughts are concerned with matters that (i) could have been included in the text but (ii) instead have been accorded authoritative status through interpretation of already-existing provisions. If we return to the Louisiana Purchase, we can see that it serves as a prime example of an early constitutional afterthought, for it established a norm, adopted in the absence of Article V deliberation, that permits the federal government to acquire territory whether or not it will be incorporated into the union of states. The precedent Jefferson set supported acquisition by later generations of territories that eventually became states—but also those that haven’t (Puerto Rico and Guam, for instance). The text has never been amended to record the fact that the federal government has this power, so one has to rely on a constitutional genealogy—that is, one has to speak of norms of governance that have emerged in the absence of Article V deliberation. These norms are discoverable only by retrieving details of the past; they can’t be discovered by consulting the text itself. Because Jefferson expressed skepticism throughout his later life about the constitutional propriety of the Louisiana Purchase,12 it’s hardly surprising he never examined the premises of the exercise in supplementation needed to justify it. Somewhat more surprising, however, is the fact that Madison failed to examine the interpretation/amendment tradeoff during ratification debates. It’s only by examining shards of commentary on other issues that we can reconstruct Madison’s pre-ratification position about whether to move from the said to the unsaid without reliance on Article V. The best way to approach this issue is to examine the sense in which founding-era lexicographers employed the word plan. After that, it will be possible to consider Madison’s ratification-era commentary on the constitutional plan as a scheme of government.

12

See Jefferson to John Colvin, September 20, 1810, supra note 7, at 11 Works 146.


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Eighteenth Century Lexicographers on the Nature of Planning Dictionaries published at the time of the text’s ratification emphasized the role of foresight in planning. They did so by treating afterthought as a term that refers to planning failure, thus underscoring the importance of the relationship between ex ante deliberation and ex post uncertainty about what to do when a plan is silent concerning a given issue. Consider first the definition lexicographers offered for plan. In defining it as a noun, Samuel Johnson’s 1755 Dictionary of the English Language contains the following entries: “a scheme, a form, a model.” In speaking of it as a verb, Johnson proposes: “to scheme, to form in design.”13 Each of these entries emphasizes foresight, not merely purposive activity but also deliberation about the value of alternative courses of conduct. The 1828 edition of Noah Webster’s dictionary also emphasizes the deliberative nature of planning. It does so, however, by noting two different senses of the noun plan. Each sense is clearly indebted to Johnson’s entries, but the distinction drawn by Webster emphasizes, as the Johnson dictionary does not, the varying degrees of rigidity associated with plans. Webster’s first definition is concerned with plans made for material objects: “A draught or form; properly the representation of any thing on a plane, as a map or chart, which is a representation of some portion of land.” Webster’s second definition deals with plans of a different kind, plans made not to represent material objects but to engage in future conduct: A scheme devised; a project; the form of something to be done existing in the mind, with the several parts adjusted in idea, expressed in words or committed to writing; as the plan of a constitution; the plan of a treaty; the plan of an expedition.14

13

2 Samuel Johnson, A Dictionary of the English Language 354 (2nd ed. 1755). Noah Webster, American Dictionary of the English Language (1828) at http://mshaffer.com/d/ word/plan.

14


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It’s hardly surprising that Webster, a partisan of the Constitution,15 would have included a not-so-subtle reference to The Federalist’s characterization of it in his dictionary. Furthermore, it’s intriguing that Webster’s second entry for plan emphasizes flexibility in a way the first doesn’t. Architectural draughts must be precise. When drawing up a plan for a building, an architect tries to anticipate in the ex ante exactly what will exist in the ex post. If implementers honor a plan-as-draught, there is no genealogy worth considering: the ideas adopted in the ex ante are those realized in the ex post. On the other hand, a genealogy is indeed possible for Webster’s alternative conception of a plan. Plans-as-schemes also involve foresight and goal-setting. But schemes can allow for leeway in implementation, as can plans for an expedition, thus making it necessary to consider ex ante events to understand the scheme’s full significance. A drafter’s instruction that people on an expedition stop at point A and then determine the best way to reach point Z can be classified as an exercise in planning given the importance placed on reaching Z, but the plan is deliberately incomplete in that it assumes the possibility that discretion will be exercised in implementing its terms. Only a narrative of implementation—a genealogy undertaken after the event—will make it possible to grasp the actual character of the scheme. The Johnson and Webster entries for afterthought both focus on hindsight regret. Johnson’s is: “reflections after the act; expedients formed too late.”16 Because Webster’s entry is “reflections after an act; later thought, or expedient occurring too late,”17 it seems reasonable to suppose that Webster followed Johnson here. When linked to plan-as-scheme, this conception of afterthought-as-hindsight-regret suggests the possibility of revision by means of interpretation—not revision of a plan’s definite instructions, of course, for an implementer can claim fidelity to a plan only by honoring punctiliously its precise instructions, but instead revision through reconsideration of vague provisions that set a direction but that don’t specify how to reach it. When a plan relies on 15

See Allen Snyder, Defining Noah Webster 80–1 (2002). 1 Johnson, supra note 13, at 96. 17 Webster, supra note 14, at afterthought. 16


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vague instructions, in other words, implementers can permissibly rely on afterthoughts to reappraise the expectations of those adopting it provided their new ideas are compatible with the indefinite language initially employed. The Premise of Incomplete Textual Specification Although Madison spoke of the text as a plan, he frequently emphasized that it was incomplete. His comments on both the Ninth and Tenth Amendments establish that he considered the enumeration of rights and that of powers to be non-exhaustive. This doesn’t mean, of course, that Madison thought of interpretive supplementation as the appropriate remedy for incomplete textual specification. It does establish, though, that he thought of the text as a scheme that initiates, but doesn’t complete, the process of national governance. Consider first Madison’s comments on federal power. Because Article I states that Congress may make all laws “necessary and proper” for executing its enumerated powers, the text intimates the possibility of interpretive derivation of unmentioned powers from those mentioned. Debate in the House of Representatives in June 1789 underscored the significance of this intimation. Discussion began with Madison’s introduction of the Tenth Amendment, which provides: “The powers not delegated to the United States by the Constitution, nor prohibited to it to the States, are reserved to the States respectively, or to the people.” The scope of this non-delegation provision is far from clear, for it might be said (a) that the federal government may exercise its enumerated powers plus those that can be derived from them as a matter of interpretive supplementation (through reliance on the necessary-and-proper clause) or (b) that the federal government may exercise only those powers specifically assigned it (with the scope of the necessary-and-proper clause thereby cast in doubt by the adoption of the Tenth Amendment). Members of the founding generation were alert to the importance of this distinction. Once Madison introduced the Tenth Amendment, Thomas Tudor Tucker, a South Carolina congressman, proposed addition of the word expressly to the text, with the result that it would read: “The powers not expressly delegated by this Constitution. . . . ” Tucker’s proposal failed,


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in part because Madison argued against it. “Because it [is] impossible,” Madison stated in opposing Tucker, to confine a Government to the exercise of express powers; there must be admitted powers by implication, unless the Government descended to recount every minutia.18

We can grasp the significance of Madison’s counterargument by saying that the framers’ decision to omit the word expressly underscored the importance of the premise of incomplete textual specification. A parallel point is in order about rights. During the course of ratification debates about the text proposed by the Philadelphia Convention, leading Federalists such as James Wilson19 and Alexander Hamilton20 argued against inclusion of a bill of rights in the text. If only federal powers are enumerated, they claimed, interpreters could reasonably say that everything not mentioned should be treated as either a right or a power granted to the states. But with an enumeration of rights, Wilson and Hamilton noted, interpreters might rely on the principle of negative implication—and so claim that the rights enumeration is exhaustive. The issue of negative implication is directly addressed in the Ninth Amendment, which states: “The enumeration in the Constitution of certain rights, shall not be construed to disparage others retained by the people.”21 At a minimum, this sentence relies on the premise of incomplete textual specification. Does it establish something more? In particular, does it establish that the rights “retained by the people” are of constitutional

18

For the Madison/Tucker exchange, see The Debates and Proceedings in the Congress of the United States 790 (Joseph Gales, ed., 1834 [August 18, 1789]). For analysis of Tucker’s role in the Antifederalist critique of the Constitution even after its adoption, see Fergus Bordewich, The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government 129 (2016). 19 See Wilson’s remarks to the Pennsylvania Ratifying Convention, as recorded in 2 The Debates in the Several State Ratifying Conventions on the Adoption of the Federal Constitution 434–7 (Jonathan Elliott, ed., 1836). 20 See The Federalist 84 (Alexander Hamilton), supra note 6, at 512–3. 21 U.S. Constitution, Amendment IX.


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standing? And does it further establish that the Ninth Amendment is the textual source of unmentioned constitutional rights? These questions take us from the negative point about incomplete specification to a (possible) positive one. The text is certainly persuasive concerning the negative one. On the other hand, the language of the Ninth Amendment can’t be said to authorize interpreters to identify unenumerated constitutional rights. Indeed, one might reasonably say that the rights “retained by the people” to which the text refers are of non-constitutional standing, in which case the Ninth Amendment can’t be said even to intimate the possibility of further constitutional rights. Because this is one possible reading of the Ninth Amendment, no conclusive determination about its reference to rights “retained by the people” is possible. Madison’s comments in introducing the Ninth Amendment for debate in the House of Representatives suggest, however, that he thought of the provision as pointing toward unmentioned rights of constitutional standing. “It has been objected also against a bill of rights,” Madison remarked in an allusion to the Wilson and Hamilton arguments already noted, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in the enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general Government and were consequently insecure. This is one of the most plausible arguments I have ever heard against admission of a bill of rights into this system; but I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [now known as the Ninth Amendment].22

Even this remark doesn’t establish that Madison thought of the Ninth Amendment as a source of unmentioned constitutional rights. All that can be said with certainty is that during the course of House of Representative debates over the Ninth and Tenth Amendments Madison adamantly defended the premise of incomplete textual 22

Madison in Gales, ed., supra note 19, at 456 (June 8, 1789).


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specification for purposes of constitutional interpretation. Each enumeration suggests something more. Because the text intimates the possibility of unmentioned powers and rights, one can grasp the degree of ex ante uncertainty a reasonable reader of the text would have experienced at the time of the founding. No uncertainty would have been possible for provisions containing precise metrics (the number of senators per state or the length of a presidential term, to cite two obvious examples). But because the outer boundaries of powers and rights were unclear, one could of course speak only of a scheme, not a draught, of government. Ex Ante Remedies for Ex Post Uncertainty About the Terms of the Plan During the course of ratification debates, Madison might have urged Article V as the appropriate device for resolving uncertainty about the scope of powers and rights. He didn’t, however. Instead, he argued for sparing use of the amendment process, emphasizing that frequent reliance on it would undermine respect for the Constitution. This doesn’t mean, of course, that Madison favored interpretive supplementation over Article V deliberation. Rather, it means that he left the remedy for incomplete textual specification to the post-founding era—a momentously important omission for the future course of American constitutionalism. Consider first Madison’s remarks concerning Article V. Madison begins The Federalist 49, his essay devoted to constitutional amendments, by remarking that “[t]he author of Notes on the State of Virginia”—i.e., Thomas Jefferson—favored frequent constitutional conventions. Madison then challenges Jefferson’s position. If the Constitution were to be frequently revised, he writes, the effect would be to undermine public respect for it. A “philosophical race of kings” might enjoy political stability while modifying their constitution on numerous occasions. Given the actual character of the American people, however, frequent appeals [to Article V] would, in great measure, deprive the government of that veneration which time bestows on everything and, without which perhaps the wisest and freest of government would not possess the requisite stability.23

23

The Federalist 49 (James Madison), supra note 6, at 313–4.


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Does this mean that Madison favored interpretive supplementation over reliance on Article V for decisions about rights and powers not mentioned in the text? This is a presentist question: it interrogates the past in light of a contemporary concern, one that Madison didn’t address directly in 1787–88. Madison did, however, comment on one occasion in 1788 about the possibility of post-ratification resolution of textual indefiniteness—and when he did he focused on interpretation, not amendment, as the appropriate remedy for doubts about the scope of government authority. In The Federalist 37, his essay on constitutional language, Madison concedes that the text’s provisions are often obscure. He argues, though, that nothing better can be expected given the complexity of the issues addressed. Indeed, everyday language is often subject to “unavoidable inaccuracy,” Madison notes: When the Almighty Himself condescends to address mankind in their language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.24

Madison is commenting generally on language in this passage, not on provisions that suggest the possibility of interpretive supplementation. His remark on linguistic obscurity is pertinent to our concerns, however, because the remedy he proposes quite clearly relies on interpretation, not on Article V, to resolve doubts about the proper application of indefinite textual provisions. “All new laws,” Madison writes, though penned with the greatest technical skill, and passed on with the fullest most mature deliberation, are considered more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.25

Ratify now—and resolve obscurity later, Madison argues here. Even more important, at least for our purposes, is Madison’s further admonition

24 25

The Federalist 37 (James Madison), supra note 6, at 229. Id.


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that obscurity should be resolved by means of interpretation—i.e., by “particular discussions and adjudications.” On any reckoning, this is a telling ex ante remark about how practice should proceed in the ex post, particularly when considered in conjunction with his Federalist 49 warning against frequent reliance on Article V. But to insist that Madison’s pre-ratification remarks indicate a preference for interpretive supplementation over an amendment for resolving uncertainty about vague textual language is to attribute greater clarity to his comments than is merited.26 Instead, only two points—one negative, the other neutral—emerge unmistakably from his pre-ratification comments on the text as far as interpretive supplementation is concerned. The negative one has to do with the principle of non-exhaustiveness. The neutral point is that he was open to interpretive supplementation. Madison didn’t comment on how an exercise in supplementation can be justified. He did, however, clearly answer the whether question— that is, he unmistakably indicated that norms of constitutional standing could be derived from the text by means of post-ratification “discussions and adjudications.”

26

The argument advanced here is somewhat weaker with respect to rights than the one Randy Barnett proposes, but it is considerably stronger than the one he proposes with respect to powers. Concerning the former, Barnett remarks: “The original meaning of the terms of the Constitution as amended—such as the Ninth Amendment or the Privileges or Immunities Clause [of the Fourteenth Amendment]—might well authorize supplementation of its express terms in ways that do not contradict their original meaning” (Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty 108 (2004)). I have argued that the Ninth Amendment can’t be said to authorize supplementation, though I have noted that, on one possible reading, it seems to conceive this as possible. See supra notes 19–20 and accompanying text. On the other hand, in speaking of the premise of incomplete textual specification as an interpretive device that can be brought to bear on the text, I have considered the possibility of supplementation of the enumeration of powers as well as rights. Barnett does not. His discussion of the necessary and proper clause (in id. 153–90) contains nothing concerning powers that’s comparable to his comment concerning the text’s implicit authorization of the enumeration of rights. As my comments later in this chapter make clear, I think that the logic of powerssupplementation is not identical to the logic of rights-supplementation. But I also think that the premise of incomplete specification is pertinent generally to powers as well as rights. The text, in other words, is suggestive of both possibilities.


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Interpretive Supplementation in the Immediate Post-Ratification Era: The Madisonian Framework The plan adopted in the late eighteenth century says nothing about privacy, but it says nothing about a great many other matters of constitutional significance—among them, the president’s authority to dismiss cabinet ministers,27 the federal government’s power to acquire territory from foreign countries,28 the power to charter a national bank,29 the power to issue paper money,30 the Court’s role as the final interpreter of the Constitution’s meaning,31 and the right of individuals to engage in interstate travel.32 Like privacy, each of these is now a matter of settled constitutional law. Moreover, like privacy, the rights and powers just noted are interpretive afterthoughts. They could have been included in the text by means of Article V—but they weren’t. Because different arguments were advanced at different times on behalf of the interpretive afterthoughts just mentioned, it might be contended that their status as components of the constitutional order is attributable to political calculation, not constitutional principle. On close inspection, though, one can see consistent patterns in the arguments that have been made on behalf of supplementary constitutional norms. Powers derived from the text have been justified on teleological grounds; they’ve been defended, in other words, as means that further enumerated ends. In contrast, two different kinds of justifications have been employed for unmentioned rights: one teleological (i.e., unmentioned rights have been characterized as means that further those mentioned), the other analogical (i.e., unmentioned rights have been said to resemble those mentioned). 27

See Myers v. United States, 272 U.S. 52 (1926). See Downes v. Bidwell, 182 U.S. 244 (1901). 29 See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). 30 See Knox v. Lee, 79 U.S. (12 Wall.) 457 (1871). 31 See Cooper v. Aaron, 358 U.S. 1 (1958). 32 See The Passenger Cases, 48 U.S. (7 How.) 283 (1849). 28


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Given the structure of the text, it’s understandable why unmentioned powers are justified solely on teleological grounds, for if the federal government is one of limited powers, extension of any of its enumerated powers can be defended only on the ground that this furthers something already mentioned. By parity of reasoning, justifications based on teleology and analogy are possible for rights, for if the federal government is one of limited powers, then claims can properly be advanced that further rights already mentioned and can also be justified by showing that there’s a similarity between rights mentioned and those not mentioned. Justificatory arguments of the kind outlined provide substantial guidance for moving from the said to the unsaid. They can’t, however, be said to determine conclusively how to derive supplementary rights or powers, for there are many plausible teleological and analogical claims that can be made in favor of extensions of the text, not all of which merit respect as extratextual constitutional norms. In this section, I examine a Madisonian framework for assessing the soundness of the kinds of justificatory arguments noted above. My inquiry is both diagnostic and prescriptive: diagnostic because Madison, though he often commented on constitutional issues that arose during the early years of the republic, didn’t employ the terminology employed here, and prescriptive because Madison’s conduct as a statesman in the early nineteenth century set a precedent in favor of interpretive supplementation (in settings where the amendment process might have been followed) that has influenced American constitutional practice ever since. In drawing on the Madisonian framework in later chapters, I account for the legitimacy of privacy rights. Here, I concentrate on the framework’s general features. Two Methods for Moving from the Said to the Unsaid: Madison in 1791 vs. Madison in 1816 Because Madison didn’t comment during the course of ratification debates on the question of how to derive implied powers or rights from the text, it’s perhaps not surprising that he took different, and incompatible, positions on this issue following the text’s adoption. In 1791, Madison proposed a restrictive answer to the how question. A quarter of a century later, Madison reversed course by advocating an accommodative approach. The same issue was at stake in each instance (whether a power to charter a national bank can be derived


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from the text), so Madison’s later position underscores how open he was, once the Constitution went into operation, to interpretive supplementation as an alternative to Article V deliberation. Madison initially advocated a cautious approach to extending the text’s powers. “The doctrine of implication is always a tender one,” he remarked while addressing the House of Representatives in February 1791 during the course of a speech opposing legislation authorizing establishment of a national bank. “Mark the reasoning” adopted by the bank’s proponents, Madison stated: To borrow money is made the end and the accumulation of capitals, implied as the means. The accumulation of capitals is then the end, and a bank implied as the means. The bank is then the end, and a charter of incorporation, a monopoly, . . . implied as the means. If implications thus remote and thus multiplied, can be linked together, a chain may be formed that will reach every object of legislation, every object within the whole compass of political economy.33

Madison’s comments here don’t reject interpretive supplementation as a matter of principle. Thomas Tudor Tucker’s proposal to add the word expressly to the Tenth Amendment would have had this effect, but Madison, it will be recalled, persuaded the House to reject Tucker’s motion to modify the amendment’s terms. So when Madison insisted that the doctrine of implication is “always tender,” he wasn’t adopting Tucker’s absolutist position. Nonetheless, he was taking an interpretive stand relatively close to it, for he was treating conceptual propinquity as the criterion for determining the legitimacy of a move from the said to the unsaid. In contrast, when Hamilton prepared a memorandum for President Washington in support of the bank’s constitutionality, he advocated a capacious approach to supplementation. Hamilton proposed two different types of teleological justifications for the bank, one of which derived an implied power from specific textual provisions, the other of 33

James Madison, February 2, 1791 Speech on the Bank, Legislative and Documentary History of the Bank of the United States 42 (Matthew St. Clair Clarke and David Hall, eds., 1832).


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which relied on holistic derivation of an unmentioned power. A “power of erecting corporations,” Hamilton wrote, “is either implied in, or would result from, some or all of the powers, vested in the National Government.”34 On this analysis, a single-provision justification—one that focuses on, say, the interstate commerce clause—can produce an implied power. But a justification that focuses on all enumerated powers can produce a resulting power. According to Hamilton, these two modes of justification are mutually reinforcing, not antagonistic. After Congress passed the bank legislation, President Washington signed it into law, thus indicating that he accepted Hamilton’s conclusion while not indicating which rationale he found convincing. When Madison reversed course a quarter century later by agreeing to legislation extending the bank’s life, he was criticized for inconsistency on a matter of high constitutional principle. Madison responded to these criticisms in an 1826 letter to the Marquis de Lafayette. He had never endorsed Hamilton’s approach, Madison stated. Indeed, he emphasized that, even as of 1816, he believed his own reading of the text was sounder than Hamilton’s. But Madison ultimately settled for Hamilton’s conclusion, for he decided that post-founding national experience should guide him in deciding whether and how to supplement the text. “As I have been charged with inconsistency in not putting a veto to the last act of Congress establishing a Bank, a word of explanation may not be improper,” Madison wrote, My construction of the Constitution has not changed; but I regarded the reiterated sanctions given to the power by the exercise of it through a long period of time, in every variety of form, and in some form or other under every administration preceding mine, with the general concurrence of the State authorities, and the acquiescence of the people at large, and without a glimpse of change in the public opinion, but evidently with growing confirmation of it; all this I regarded as a construction put on the

34

Alexander Hamilton, Opinion on the Constitutionality of the Bank, February 23, 1791, in id. 96 (emphasis in original).


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Constitution by the nation, which having made it, had the supreme right to declare its meaning. . . . 35

Needless to say, there’s nothing in the text that enjoins interpreters to treat a course of settled practice as a criterion for determining the propriety of an implied right or power. Moreover, there’s no interpretive norm (in constitutional law or in other settings) that calls on someone to set aside the reading of a text he believes valid in favor of one he considers weaker. Madison, however, accorded priority to settled practice over his private convictions concerning interpretation. Madison thus agreed to bypass Article V despite his belief that an implied power cannot be derived from the text. To justify this, Madison turned standard constitutional reasoning on its head. Instead of asking whether the everyday conduct of government conforms to norms mentioned in the text (the way in which constitutionality is usually determined), Madison relied on a pattern of political practice to generate an unmentioned constitutional norm. It’s arguable that Jefferson’s ultimate willingness to bypass Article V concerning the Louisiana Purchase is also understandable in terms of this point. But Jefferson never attempted to justify his Article V bypass. In contrast, Madison actually did offer a justification for accepting an implied power (and so for sidestepping the amendment process). In drawing on Madison’s comments, we can identify principles of interpretive supplementation that extend beyond the specific issue he considered in his letter to Lafayette. 35

Madison to Lafayette, November 1826, in 3 Letters & Other Writings of James Madison 542 (1884). A further word is in order here concerning the internal consistency of Madison’s approach to constitutional interpretation. In quoting Madison’s 1791 speech opposing a bank charter, Randy Barnett correctly argues that Madison claimed that the necessary and proper clause should be read in light of the Ninth and Tenth Amendments—and that all of these place limits on the exercise of federal power so substantial as to make a bank charter (and numerous other federal initiatives) unconstitutional. See Barnett supra note 26, at 240. Barnett doesn’t, however, quote Madison’s 1826 letter to Lafayette justifying his about-face on the bank. He thus doesn’t address the consistent position Madison took throughout his career in favor of acquiescence to public readings of the text—even public readings at odds with his preferred private readings of it. These public readings are established through the “discussions and adjudications” to which Madison referred in The Federalist 37; they were established during the life of the early republic by the repeated acts of legislation to which Madison yielded in signing the bank legislation in 1816. Barnett’s argument thus champions as constitutional law the very view that Madison repudiated in signing the bank bill.


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The Ramifications of Madison’s 1816 Position Madison’s comments offer guidance concerning the two key questions pertinent to interpretive supplementation: whether to engage in this and how to do so. The whether issue is easily addressed, for Madison assumed, both before and after ratification, that it’s proper to derive unmentioned powers from those mentioned in the text. Even his 1791 speech to the House grants the legitimacy of interpretive supplementation. It emphasizes the “tenderness” of reasoning by implication, but it doesn’t reject this in principle. The how issue requires more careful consideration. Madison’s 1791 remarks rely on the premise that the legitimacy of interpretive supplementation is established by demonstrating the closest possible connection between categories mentioned in the text and categories posited as extensions of it. In noting to Lafayette that he continued to believe he had initially proposed the best reading of the text, Madison distinguished between exegetical refinement (which an interpreter can establish on his own) and an enduring pattern of practice (which an interpreter can establish only by considering the course of national experience). Does this mean that Madison, as of 1816, was willing to accept any extension of the text provided it was compatible with an enduring pattern of national practice? The question answers itself, for it’s clear that Madison thought of the text’s precise provisions as constraints on government action (House elections must be held biannually, for instance, and no popular “interpretation” of Article I can alter this36) and clear as well that Madison thought of the text’s open-ended provisions as setting a general direction for the government. But it’s also clear that, by 1816, Madison was willing to abandon his insistence on exegetical refinement for determining the legitimacy of an exercise in interpretive supplementation of vague language. Instead, Madison insisted on a minimum degree of plausibility when considering questions about extending the text and then asked whether an extension that

For Madison’s comments on what he called the “unalterable” rule of biannual House elections, see The Federalist 53, supra note 6, at 331.

36


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meets this threshold condition is compatible with the course of national experience. Put differently, Madison’s later position relied on an accommodative approach to supplementation, one in which an extension of the text is preferable to amendment when it (i) doesn’t run afoul of a textual mandate or prohibition, (ii) is compatible with the overall constitutional design, and (iii) is consistent with a supermajority consensus discernible in the course of longstanding national practice. This can be called the Madisonian framework of interpretive supplementation. Needless to say, Madison never used the term interpretive supplementation, nor did he ever distill his ideas in the schematic form just outlined. Nonetheless, the points just made reflect accurately the gist of Madison’s letter to Lafayette once it’s considered in light of his about-face on the issue of the bank’s constitutionality. The Madisonian framework is pertinent to key exercises in interpretive supplementation undertaken at different times in the republic’s history. Table 1.1 notes six different exercises in supplementation; two are concerned with unmentioned powers and four with unmentioned rights. Its first entry deals with the supplementary power just discussed— Congress’s authority to charter a national bank. Table 1.1 then turns to exercises in supplementation that have become embedded in constitutional law following Madison’s death. Though diverse in scope, each entry in the right column of the table is distinctive because it is not mentioned in the text but is nonetheless considered a legitimate constitutional norm. Three features about Table 1.1 merit comment. One has to do with the text’s role as a platform for the elaboration of unmentioned rights and powers—i.e., with claims that because the text is concerned with X it’s reasonable to think in terms of norm Y attributable to X. This is merely a point about the structure of arguments in favor of supplementation. It says nothing about the degree of affinity between the said and the unsaid (Madison’s 1791 concern, it will be recalled). It also says nothing about the course of national change essential to converting a plausible argument in favor of supplementation into a legitimate one (Madison’s 1816 concern). Table 1.1 simply establishes the possibility of treating the text as the starting point for identifying unmentioned norms of constitutional standing. This straightforward point has profoundly important


(2) Analogical

(1A) Power

(1) Teleological

(2A) Right

(1B) Right

Source for supplementation

Mode of justification

(2A2) Entirety of rights

(2A1) Specific right

(1B2) Entirety of rights

(1B1) Specific right

(1A2) Entirety of powers

(1A1) Specific power

Power to charter a national bank McCulloch v. Maryland 17 U.S. (4 Wheat.) 316 (1819) Power to issue paper money as the legal tender of the United States Knox v. Lee 79 U.S. (12 Wall.) 457 (1871) Right of freedom of association NAACP v. Alabama 357 U.S. 449 (1958) Right of interstate travel The Passenger Cases 48 U.S. (7 How.) 283 (1849) Right of communicative expression Ward v. Rock against Racism 491 U.S. 781 (1989) Equal protection right against the federal government Bolling v. Sharpe 347 U.S. 497 (1954)

Example

Table 1.1 Justificatory arguments for supplementing the text’s enumeration of powers and rights

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ramifications, however, for it establishes that the question whether to move from the said to the unsaid (without reliance on Article V) has often been answered in the affirmative throughout the nation’s history. The second feature of Table 1.1 worth noting has to do with alternative ways of moving from the said to the unsaid. It was Hamilton, not Madison, who proposed a holistic, as distinguished from a clausebound, route to supplementation while arguing for the bank’s constitutionality. Although Madison never adopted Hamilton’s capacious reading of the text concerning the bank, it’s nonetheless accurate to say that his 1816 conclusion points in a Hamiltonian direction while relying on a premise uniquely his own—that a pattern of national practice must be present to convert a plausible exercise in supplementation into a legitimate one. The third point worth noting has to do with the table’s relevance to privacy rights. The right to informational privacy announced in Katz v. United States can be justified on analogical grounds, I argue later.37 Although this right can’t be reconciled with the Fourth Amendment’s actual words (it’s impossible to search a conversation, for instance, or to seize its words), the Katz right is nonetheless sufficiently similar to the subjects of government intrusions covered by the amendment that it can be defended on analogical grounds. In contrast, the Griswold v. Connecticut right to marital privacy, having no close connection to anything mentioned in the text, must be justified holistically.38 It results from the entirety of the Bill of Rights—from its commitment to individual freedom and its respect for the exercise of individual autonomy. Would the implied and resulting privacy rights just mentioned have been recognized as legitimate exercises in supplementation at the time of the nation’s founding? This question takes us into notional possibilities. What can be said with a high degree of confidence is that Madison, in signing the bank legislation in 1816, agreed to something he knew the founding generation probably would not have accepted. The soundness of this point is established by the record of the Philadelphia Convention, 37 38

Katz v. United States, 389 U.S. 347 (1967), analyzed infra in Chapter 11. Griswold v. United States, 381 U.S. 479 (1965), analyzed infra in Chapter 10.


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for it was Madison himself who unsuccessfully urged the Convention to include in the text a federal power to “grant charters of incorporation where the interest of the United States might require. . . . ”39 The reason why this motion was rejected is not entirely clear, but we do know that Gouverneur Morris, the text’s chief draftsman, worried that anything concerning corporate charters in general or a bank in particular might jeopardize ratification.40 In this context, then, we can make the following counterfactual statement with considerable confidence: ratification probably would have been riskier had a power pertaining either to charters of incorporation or to a bank been included in the text. In agreeing to the bank legislation in 1816, then, Madison not only reversed himself on a question of constitutional interpretation he also did so by agreeing to something that almost certainly ran contrary to founding-era understandings of the text’s meaning. Plan-as-Scheme Originalism vs. Plan-as-Draught Originalism Given Madison’s willingness to reverse his position on the bank, it might be said that he was among the earliest defectors from what is now known as originalism. The Madison of 1791 was faithful to ratifier understandings, it could be argued, but the Madison of a quarter century later succumbed to the all-too-familiar temptation of post-founding interpreters to expand on the limits of federal power. To adopt this position, however, is to insist on an unnecessarily restrictive version of originalism. It’s to disregard Madison’s 1787–88 warnings about the text’s indefinite language and so to ignore discussions conducted at the very outset about the nature of the plan adopted by the Convention. We have already examined Madison’s Federalist 37 comments on the vagueness of the text’s grant of power.41 In returning to them, it’s sufficient to note the consistency of his approach to interpretation before and after ratification. Because the Constitution is written, Madison believed, its words must be read in terms of the meaning they had at 39

2 Records of the Federal Convention of 1787 615–6 (Max Farrand, ed., 1937). The Convention participants’ strategic decision not to include a power to grant charters of incorporation is discussed in Bray Hammond, Banks and Politics in America: From the Revolution to the Civil War 104–5 (1957). 41 See supra notes 24–5 and accompanying text. 40


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the time of adoption42—or, to use the formula now employed by originalists, Madison can be said to have insisted that textual language must be accorded the meaning a reasonable reader of the time of adoption would have attributed to it.43 This point establishes that Madison can be classified as an originalist (as long as we are willing to apply a modern category retroactively).44 But to employ this label is not to settle questions about how to resolve textual vagueness. Rather, an injunction to attend to original meanings makes it essential to come to terms with the framers’ decision to rely on vague language. It’s possible for modern interpreters to adopt a precisionizing strategy here—possible, for instance, to analyze a term such as necessary and proper in light of the dominant understandings, intentions, or expectations of the ratifiers (the differences between these categories are substantial, but each has the potential to narrow the range of application of vague language). To adopt any of the options just mentioned, however, is to convert assumptions not subjected to the ratification process into concrete directives to future generations. Put differently, a precisionizing strategy of the kind just mentioned is unfaithful to the written character of the Constitution. It undermines the function of linguistic generality essential to the drafters’ decision to settle for vagueness when greater specificity might have been selected. Madison remarked, “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation.” “In that sense alone it is the legitimate Constitution. . . . If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the government must partake of the changes to which the words and phrases of all living languages are constantly subject” (Madison to Richard Henry Lee, June 25, 1824 in 3 Letters, supra note 35 at 442–3). 43 Vasan Kasavan and Michael Stokes Paulsen propose this original public meaning version of originalism. Its aim is to identify “the meaning the language would have had (both its words and its grammar) to an average, informed speaker and reader of that language at the time of its enactment into law” (“Is West Virginia Constitutional?” 90 California Law Review 291, 398 (2002)). 44 The term originalism has undergone many conceptual mutations over the last three decades. For a survey of its career as a category in constitutional law, see Originalism: A Quarter Century of Debate (Steven Calabresi, ed., 2007). The comments at notes 41–42 supra and accompanying text cover a bare-bones version of originalism. Many people who use this category insist on more than this bare-bones version, as Justice Scalia does. For an example of his public-understanding version of originalism, see note 47 infra and accompanying text. 42


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Some proponents of originalism nonetheless insist on coping with vagueness by considering the ratifiers’ background assumptions. Commenting, for instance, on the Eighth Amendment’s prohibition of cruel and unusual punishments, Justice Scalia has argued that it states an abstract principle, but “[w]hat it abstracts,” Scalia has added, “is not a moral principle of ‘cruelty’ that philosophers can play with in the future but rather the existing society’s [i.e. that of the eighteenth century framers] assessment of what is cruel.”45 On this analysis, the words cruel and unusual amount to a disguised directive to give constitutional effect to the founders’ preferred application of these terms. Originalism of this kind doesn’t make the text into a plan as definite as an architect’s draft, but it moves substantially in this direction by treating vague language as shorthand for assumptions not reduced to writing (and perhaps not even mentioned during ratification debates). In adopting this approach, one makes allowance for technological change (for the introduction of the electric chair as far as the Eighth Amendment is concerned or for the advent of the telephone in regulating interstate commerce), but one insists that the constitutional significance of innovations that couldn’t have been anticipated at the outset must be assessed in light of the evaluative presuppositions the adopting generation entertained about the vague words to which they agreed. On this reckoning, Madison can indeed be classified as one of the first renegades from originalism. But given both Madison’s 1787–88 insistence on the looseness of the text’s language and his willingness to set aside ratifier assumptions about the likely effect of the text’s vague language, the sounder approach is to adopt a fundamentally different version of originalism, one that honors Madison’s insistence on fidelity to the meaning of words as they were used at the time of ratification but that allows for applications of vague language in ways that go beyond ratifier expectations of their likely application. In following the distinction Noah Webster drew between different types of plans,46 we can call

45 46

Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 145 (1997). For discussion of this point, see supra note 14 and accompanying text.


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this plan-as-scheme originalism. The meaning/application distinction essential to this approach is by no means new in constitutional scholarship,47 so the only novel point introduced so far is to note that it’s reasonable to say that a coherent framework for treating the text as a scheme of government, and so for embarking on interpretive supplementation in lieu of Article V, is discernible in Madison’s career-long remarks on reading the text’s vague provisions (though it has to be granted that he made clear his willingness to bypass Article V only after the text’s ratification). Plan-as-scheme originalism has three key characteristics, one of which it shares with the plan-as-draught version. First, like its counterpart, it affirms the binding character of the text’s language: 35 years of age (the presidential age threshold) means exactly that—it establishes a bright-line rule for presidential eligibility and so doesn’t permit interpreters to substitute fuzzy concepts such as mature or wise for what the text actually says. But second, plan-as-scheme originalism rejects the disguised directive thesis its rival deploys for resolving textual vagueness. It declines, in other words, to accord binding status to understandings not reduced to writing even when those understandings may have made the difference between ratifier adoption of a given provision or perhaps even the entire text. This point is critical to justifying Madison’s 1816 decision concerning the bank. As will be seen, it’s critical as well to numerous modern cases 47 Lawrence Solum remarks, “The new originalism recognizes what we might call the fact of constitutional underdeterminacy: many of the most important questions of constitutional law are underdetermined by the linguistic meaning of the constitutional text.” “An outcome is underdetermined if the meaning is inconsistent with some outcomes but would be consistent with two or more resolutions of the case” (Lawrence Solum, “We Are All Originalists Now,” in Robert Bennett and Lawrence Solum, eds., Constitutional Originalism: A Debate 22 (2011)). Justice Scalia’s approach to textual vagueness relies on the meaning/application distinction. In commenting on the text’s open-ended provisions, for instance, he remarks: “Statutes often—and constitutions always—employ general terms such as due process, equal protection, cruel and unusual punishments. What these generalities meant as applied to many phenomena that existed at the time of their adoption was well understood and accepted” (Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts 84 (2012) (emphasis in original)). Although Scalia insists that interpreters apply “open-ended” provisions in ways that were “well understood and accepted” by the ratifiers, he recognizes that other applications might be semantically sound as well.


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that announce privacy rights. Plan-as-scheme originalism thus treats the text’s words as authoritative but does not accord authoritative status to presuppositions ratifiers may have entertained concerning their likely application. Madison’s comments in The Federalist 37 are pertinent here since they emphasize ex ante uncertainty about ex post application of indefinite language. Far from adopting the precisionizing strategy of plan-as-draught originalists, Madison’s Federalist 37 remarks dismiss it. On Madison’s account, a consistent pattern of post-ratification “discussions and adjudications” should be used to resolve uncertainty about the way to apply vague language,48 not background assumptions that may or may not have influenced the decision to adopt the text. A third point is pertinent to plan-as-scheme originalism, one that imposes discipline on interpreters of the text’s vague provisions. As advocates of plan-as-draught originalism have pointed out, an argument that frees post-ratification interpreters from pre-ratification understandings opens the door to judicial legislation—i.e., it can open the door to judicial imposition of personal preference when interpreting vague language. This is a valid concern: when Scalia raises the possibility that post-ratification interpreters will want to “play with” a term such as cruel, he properly notes that judicial power can be used to undermine the presumption in favor of democratic decision-making that informs the entire text. This concern can be satisfactorily addressed through reliance on the Madisonian framework. Implicit in that framework is a principle of deference to long-standing practice as articulated by electorally accountable bodies—a principle that calls on interpreters to yield to what Madison called a “construction put on the Constitution by the nation.” When interpreters rely on this, they can’t be charged with imposing their values. Rather, they can be said to further values that have emerged over the course of the country’s history, even if these values weren’t entertained by the framing generation. 48

For analysis of the significance of longstanding practice for interpretation of the text, see Michael McConnell, “Time, Institutions, and Interpretations,” 95 Boston University Law Review 1745, 1771–6 (2015), which examines the Court’s remarks on this issue in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).


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Although the terms plan-as-scheme and plan-as-draught are novel, the general distinction they propose is critical to many judicial opinions and a good deal of scholarly commentary as well. Not surprisingly, commentators have remarked more candidly than judges on the ramifications of the two categories. For example, while numerous Court opinions have relied on what I’ve called Article V bypass,49 comments by scholars—in particular, books and articles by Bruce Ackerman50—have explored its significance for constitutional law in greater detail than have judicial opinions. Similarly, while majority opinions have rejected the plan-as-draught conception of the necessary and proper clause, proponents of the notion of a living constitution— to use a term David Strauss has recently revived51—have offered a 49

Each of the cases mentioned in this chapter’s table relies on an Article V bypass. Ackerman’s books have shown how it’s possible to contribute to constitutional theory through careful examination of the text’s history. See, in particular, 1 We the People: Foundations (1991) and 2 We the People: Transformations (1998). Although Ackerman doesn’t employ the term Article V bypass, his analysis of unconventional modes of modifying constitutional norms, in particular his examination of the New Deal transformation in 2 We the People 312–44, is understandable in terms of this bypass. The concepts I employ here—constitutional afterthoughts, interpretive supplementation, Article V bypass, and developmental supplementation—are compatible with Ackerman’s approach, although he doesn’t use them in his own work. However, my framework differs from Ackerman’s in that I follow Madison in emphasizing the possibility of an issue-specific consensus for establishing the legitimacy of an exercise in interpretive supplementation. Ackerman, in contrast, relies on a distinction between ordinary and constitutional politics to argue that legitimate change is justified only as part of relatively rare moments of national ferment that give rise to the latter kind of politics. Ackerman’s approach casts doubt on the legitimacy of most privacy rights. Because there has been no modern period of “constitutional politics” comparable to that of the New Deal, there appears to be no Ackerman-based justification for the privacy decisions of the last half-century (Ackerman, it should be noted, implausibly tries to justify Griswold v. Connecticut, 381 U.S. 479 (1965), in light of the New Deal consensus, but of course New Deal constitutional thought didn’t focus on issues of privacy protection. See 1 We the People 150–9). By contrast, in Chapter 9 infra, I argue that Griswold’s legitimacy can be established by reference to emergent patterns in national life only tangentially related to the New Deal’s transformation of political economy. 51 Strauss comes close to using the term Article V bypass, though only to note a criticism that might be made of his version of living constitutionalism. “The claim that we have a living constitution,” he writes, “is just a claim that we can bypass Article V and that it [i.e., Strauss’s approach to constitutional interpretation] is illegitimate” (David Strauss, The Living Constitution 115 (2010)). In answering this, Strauss argues that “[s]ome form of living constitutionalism is inevitable, and necessary, to prevent the Constitution from becoming irrelevant or, worse, a straitjacket that damages the society by being so inflexible” (id.). The arguments advanced on behalf of privacy rights in later chapters of this book are consistent with this point. They rely, however, on a 50


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theoretical account that analyzes Madison’s decision at greater length than one finds in any judicial opinion. Moreover, Jack Balkin’s argument in favor living originalism (his term) has offered scholars and judges a way to reconcile the imperative of fidelity to original meaning with the possibility of legitimate alterations in the content of rights and powers.52 What, then, does this book offer that goes beyond contributions already made? Two answers are possible. One has to do with the subject of discussion. Privacy rights are arguably the most important rights-innovation in modern constitutional law, yet no study has examined their inclusion in contemporary doctrine. The second has to do with methodology—in particular, with the heuristic value of the concept of interpretive supplementation. That is, if it’s legitimate to bypass Article V in supplementing the text’s enumeration of rights, it’s essential to think about the phenomenon of unplanned growth. In particular, it’s essential to think about this possibility for a field of law inaugurated by the ambitious claim that it contains a plan of government, for the exercise in interpretive supplementation Madison framework that accounts for the legitimacy of moves from the said to the unsaid. They offer a way to think about the methodological issues associated with interpretive supplementation, in other words, an issue Strauss doesn’t address. For the original source of the term, see Howard Lee McBain, The Living Constitution: A Consideration of the Realities and Legends of Our Fundamental Law (1927). 52 Or, to note a debt that Balkin himself acknowledges, a law review article introduced the term he employs in his book’s title. See Jack Balkin, Living Originalism 460 (2011), which states that Thomas Colby and Peter Smith introduced the term in their “Living Originalism,” 59 Duke Law Journal 239 (2009). As for Balkin’s argument, I too emphasize the importance of original indefiniteness. See Living Originalism 4–7. Also, like Balkin, I defend the legitimacy of exercises in interpretive supplementation (though Balkin doesn’t use the term) that depart from ratifier understandings of the proper application of the text’s language. Given these similarities, it’s reasonable to classify both Balkin’s and my approach as examples of “the new originalism.” For more on this term, see supra note 46 and accompanying text. But there are important differences as well. The most significant has to do with the justification for developmental ruptures with the past. Balkin doesn’t insist, as I do in the course of proposing a Madisonian framework of interpretive supplementation, on concrete evidence of a post-founding consensus to justify departures from original understandings. On my analysis, this requirement limits interpreters’ discretion when moving beyond the text. It restrains judicial power more significantly than does any limitation Balkin proposes.


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ultimately endorsed was not part of the original plan and was never recorded in the text but is now an integral part of American constitutionalism. Remaining portions of the book address this issue by proposing a genealogy of rights and powers. Genealogical reasoning doesn’t supplant the text; rather, it accounts for the timing and sequence of supplemental initiatives undertaken over the course of the text’s existence. Just as Madison cited trends in nineteenth century legislation to justify his decision to upset ratifier expectations about the course of constitutional development, justices of the modern Court have drawn on alterations in the nation’s character to identify rights that most certainly weren’t anticipated at the outset but that are compatible with the text’s overall commitment to individual freedom. The Ongoing Importance of Madison’s About-Face One of the many dividends of Madison’s longevity was that he was given an opportunity to implement the plan he helped devise—and so to propose a criterion for determining how to move from the said to the unsaid. Needless to say, Madison’s arguments on behalf of interpretive supplementation matter not merely because he had a long life but also because they provide a way to resolve uncertainty that existed from the outset about the relative role of interpretation and amendment in bringing about constitutional change. In this respect, Jefferson and Madison stand in sharp contrast with one another. Jefferson longed for a planas-draught version of constitutional law, one in which everyday politics is conducted in compliance with detailed guidance provided by “We the People.” Madison, in contrast, reasoned in terms of a plan-as-scheme model of constitutionalism, one that views the text as intimating possibilities whose legitimacy is established by considering enduring patterns of national life. Had Jefferson’s conception of constitutional reasoning gained ascendency, one would have to reject the legitimacy of constitutional privacy rights. They aren’t mentioned in the text—and, according to Jefferson’s plan-as-draught model, interpreters must begin with concepts anchored in the text. But of course numerous other norms of constitutional standing aren’t in the text. It’s because this is the case that actual constitutional practice—as distinguished from the practice that might have developed—must be considered in light of the suggestive-text


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approach that Madison employed (and that Jefferson accepted sub silentio while carrying out the Louisiana Purchase). Madison’s approach makes it possible to understand a seeming paradox of American constitutionalism: that the full significance of the written plan can be understood only by examining authoritative supplementation that has never been registered by means of Article V deliberation. It’s for this reason that a genealogy is essential when considering exercises in interpretive supplementation. The next two chapters consider generally the framework of rights-supplementation. The section that follow these proposes a genealogy of privacy rights.


Chapter 2: The Right to Wear a Hat—and Other Afterthoughts

All participants in eighteenth century ratification debates relied on the premise of incomplete textual specification when discussing individual rights. No one paused, though, to comment on how new rights would be identified—or even whether it’s permissible to bypass Article V by deriving unmentioned rights from the already-existing text. As noted in the previous chapter, the Ninth Amendment doesn’t address these whether and how questions.1 It cautions against negative implication— against assuming that the list of rights mentioned in amendments one to eight is complete. But it doesn’t explain whether rights not enumerated can properly be announced without resorting to Article V. Nor does it explain (assuming the propriety of an Article V bypass) how to move from the said to the unsaid. Although no one addressed these issues directly during the course of ratification debates, there was an exchange that casts light—not entirely bright light, it has to be conceded—on questions about whether and how to move from the said to the unsaid when identifying unmentioned rights 1 For Madison’s comments on the Ninth Amendment, see supra Chapter 1, note 22 and accompanying text.

© The Author(s) 2016 W.C. Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_3

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of constitutional standing. The exchange was prompted by a comment on what is now the First Amendment. Speaking to the House of Representatives in August 1789, Theodore Sedgwick, a Massachusetts congressman, moved to strike the assembly clause from the proposed text, arguing that there is no need for a right of assembly in a constitutional provision that expressly protects rights of free speech, freedom of the press, and freedom to petition for redress of grievances. Sedgwick’s motion makes sense only if one assumes (i) that the text incompletely specifies individual rights and (ii) that at least some unmentioned rights of constitutional standing can be derived from the text without resort to Article V. If the Constitution protects the rights just mentioned, Sedgwick can be understood to have argued, then it also protects a right of assembly. On Sedgwick’s analysis, the move from the said (speech, press, petition for redress of grievances) to the unsaid (assembly) is so obvious as to make it unnecessary to include it in the text. Sedgwick’s comment provoked considerable discussion. In challenging it, Egbert Benson of New York remarked: The Committee who framed this report proceeded on the principle that these rights belonged to the people; they were conceived to be inherent; and all that they meant to provide against was their being infringed.2

To this, Sedgwick replied: [I]f the committee were governed by that principle, they might have gone into a very lengthy enumeration of rights; they might have decided that a man should have a right to wear his hat when he pleased, and go to bed when he thought proper; but he would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to be infringed.3

2

The Debates and Proceedings of the Congress of the United States 759 (August 15, 1789) (Joseph Gales, ed., 1834). 3 Id. 759–60.


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Sedgwick’s remark about hats did not go unnoticed. After two other representatives spoke, John Page of Virginia returned to it by proposing a distinction between trivial and essential rights. Sedgwick, Page stated, objects to the clause [i.e., the one that includes the right to assemble] because the right is of such a trivial nature. He supposes it no more essential than whether a man has a right to wear a hat or not; but let me observe to him that such rights have been opposed, and a man has been obliged to pull off his hat when he appeared before the face of authority; people have been prevented from assembling together on their lawful occasions, therefore it is well to guard against such stretches of authority, by inserting the privilege in the declaration of rights.4

Thomas Hartley of Pennsylvania relied on a similar rationale to contend that a right to assemble must be included in the text. “[I]t had been observed by the friends of the constitution,” Hartley remarked, that the rights and powers that were not given to the Government were retained by the States and the people thereof. This was also his own opinion [Hartley continued], but as four or five States had required to be secured in those rights by an express declaration in the constitution, he was disposed to gratify them; he thought everything that was not incompatible with the general good ought to be granted, if it would obtain the confidence of the people in the Government; and upon the whole, he thought these were as necessary to be inserted in the declaration of rights as most in the clause.5

Necessary because rights not included are unprotected? Necessary because inclusion of a right accords it an extra degree of protection, thus making it reasonable to say that some unmentioned rights are also constitutionally protected, but less securely so? Hartley’s comments suggest he was inclined to the latter option. Moreover, Sedgwick’s proposal to excise the right to peaceably assemble suggests that he too reasoned in terms of constitutional rights that can be derived from the

4 5

Id. 760. Id.


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text. But why, then, didn’t Hartley and Sedgwick insist on a declaration of principle concerning the residuum of rights? Why, in other words, didn’t they propose a provision that would disavow the prospect of a patchwork statement of rights by classifying as constitutionally protected everything not allocated to the federal government or the states but nonetheless “compatible with the general good”? In the wake of Hartley’s remarks, the House defeated Sedgwick’s motion to strike the assembly clause from the Bill of Rights.6 Needless to say, this vote didn’t resolve the questions just noted concerning the status of unmentioned rights. But while no definitive statement about the founders’ position is possible, it’s reasonable to say that the exchange provoked by Sedgwick’s comment indicates that (i) the framing generation subscribed to the premise of incomplete textual specification, (ii) they answered the whether question positively (and so believed it proper, at least on some occasions, to bypass Article V by deriving unmentioned rights of constitutional standing from those mentioned in the text), and (iii) they didn’t address the how question carefully (that is, they didn’t examine the challenging methodological question that arises about the proper way to move from the said to the unsaid). Judicial practice has long been consistent with each of these points. From the time of the founding down to the present, courts have been open to the possibility of supplementing the text’s enumeration of rights.7 Only on rare occasions, however, have judges considered the methodology of supplementation. The how question, in other words, has not been addressed with special care in judicial opinions; even the whether question has been resolved by intuition rather than analysis. This chapter offers a more systematic way to think about each issue. In this respect, it starts out where the previous one left off, for it asks about rights-supplementation whereas the earlier one considered powers-supplementation. But the current chapter considers another

6

Id. 761. For two examples of supplementation exercises by justices during the life of the republic, each involving appeals to natural law, see Calder v. Bull, 3 U.S. (3 Dall.) 386, 388–89 (1798) (Chase, J.), and Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135–39 (1810). 7


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factor—the countermajoritarian difficulty. Although this term, which Alexander Bickel introduced into constitutional scholarship to emphasize the non-democratic character of judicial review,8 is pertinent to any judicial interpretation of the Constitution that invalidates a statute, the previous chapter had no occasion to consider it. McCulloch v. Maryland, the 1819 case in which the Court accepted the legitimacy of an implied power to charter a national bank,9 is not an example of countermajoritarian reasoning. On the contrary, McCulloch is majoritarian, for in that case the Court upheld a statute adopted by Congress and signed by the President. It acquiesced, in other words, in the exercise of power by the two other (democratically accountable) branches of government. This chapter and the next one examine cases in which the countermajortarian difficulty is inescapable. In laying claim to a constitutional right, a litigant asks a court to overturn a decision made by one or both of the elected branches of government. In laying claim to an unmentioned constitutional right, a litigant further urges a court to supplement the text—and so seeks invalidation of a decision made by a democratically accountable branch despite the text’s silence on the subject. Privacy claims have this character. For instance, in holding that there is a constitutionally protected right to engage in consensual sodomy, the Lawrence Court invalidated a Texas criminal statute by supplementing the text’s list of enumerated rights.10 Lawrence thus involves a dramatic exercise of judicial authority: it concludes that legislation adopted by a democratic body is constitutionally invalid despite the fact that the text doesn’t directly address the issue under consideration. Because numerous privacy claims presuppose this extra dose of judicial authority, it’s essential to examine their logic carefully. This chapter focuses on countermajoritarian issues outside the realm of privacy rights. Its concern is the logic of rights-supplementation. Later sections of the book examine privacy rights in light of the framework developed in this chapter and the next.

8

Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16–22 (1962). 9 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). 10 Lawrence v. Texas, 539 U.S. 543 (2003).


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The chapter is divided into two sections. Each considers the practice of rights-supplementation through examination of an unmentioned right with no direct connection to privacy. The first section examines a justification Justice Scalia proposed for supplementing the First Amendment speech and press clauses. The second section considers Ward v. Rock against Racism, a 1989 case in which the Court (with Scalia joining Justice Kennedy’s majority opinion) reasoned in terms of an implied First Amendment right to perform music.11 My intent in reviewing these exercises in supplementation is to raise diagnostic questions. In the following chapter, I argue that Bolling v. Sharpe12 serves as a clear-cut example of legitimate rights-supplementation, so this chapter is primarily concerned with the justificatory groundwork essential to judicial extension of the range of rights.

The Logic of Rights-Supplementation The Madisonian framework, I suggested in the previous chapter, offers helpful guidance for thinking about whether and how questions pertinent to interpretive supplementation. On Madison’s reckoning, interpreters may bypass Article V when (i) there is no textual mandate or prohibition that stands in the way, (ii) the extension under consideration is consistent with the overall design, and (iii) the extension is compatible with an enduring, post-founding supermajority consensus. As for how they may do so, the plausibility of any possible supplementation of powers is established by considering the teleological connection between what’s mentioned and what isn’t whereas the plausibility of rights-supplementation is established either on teleological or analogical grounds. If this plausibility condition is satisfied, the Madison framework holds, the legitimacy of a proposed extension must be established by concrete evidence of a supermajority consensus concerning the issue at stake.

11 12

Ward v. Rock against Racism, 491 U.S. 781 (1989). Bolling v. Sharpe, 347 U.S. 497 (1954).


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Two further considerations—the first pertinent to powers and rights, the second only to rights—should be added to what can now be called the extended Madisonian framework. The extension relevant to both powers and rights has to do with the concept of liquidated meaning. In The Federalist 37, it will be recalled, Madison states that post-ratification “discussions and adjudications” will “liquidate” the meaning of indefinite textual language.13 Because he recycled the verb liquidate in post-presidential commentary on constitutional interpretation,14 it seems reasonable to assume that Madison anticipated relatively prompt resolution of interpretive disagreement. It’s possible to read Madison differently—possible, that is, to contend that he was prepared to accept long-term postponement of textual liquidation. This hypothesis seems incompatible, however, with Madison’s use of the term in his post-presidential letters, where he indicated that he thought of his decision to sign the bank bill as resolving promptly uncertainty about the legitimacy of the supplementary power at stake. If this reading is sound, should Madison’s framework be accorded only a limited shelf-life? Was it relevant only to resolution of textual

13

See supra Chapter 1, note 25 and accompanying text. In a letter to Spencer Roane commenting on McCulloch v. Maryland, Madison remarked: “It could not but happen, and was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding the terms & phrases used in such a charter; more especially those which legislation between the General & local Governments; and that it might require a regular course of practice to liquidate & settle the meaning of some of them.” Madison to Roane (September 2, 1819), 9 The Writings of James Madison 447, 448 (Gaillard Hunt, 1910). This remark draws directly on the terms Madison had introduced in The Federalist 37; see supra note 13 and accompanying text. Madison followed the remark with a comment critical of McCulloch: “But it was anticipated I believe by few if any of the friends of the Constitution, that a rule of construction would be introduced as broad & as pliant as what has occurred” (9 Writings 447). On a superficial reading of this sentence, it might be said that Madison believed that the bank itself was unconstitutional. But Madison says no such thing. Instead, he repudiates the “broad and pliant” reading of the text Marshall employed in McCulloch (and so repudiates Hamilton’s 1791 reading the text), but he doesn’t repudiate the bank itself. So, to make sense of Madison’s nuanced approach to interpretive supplementation, one must note that (i) he relied in 1788 and in 1819 on the premise that “discussions and adjudications” would “liquidate” the text’s meaning, (ii) those discussions established the bank’s constitutionality, a point he affirmed in his November 1826 letter to Lafayette (see Chapter 1 supra, note 35 and accompanying text), but (iii) he continued to endorse, at least as a matter of private opinion, a “broad and pliant” readings of the text. 14


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indefiniteness in the republic’s early history (and perhaps relevant as well to the Fourteenth Amendment in the years immediately following that provision’s adoption)? The answer to this must be no, for the framework continues to offer guidance for later generations no matter how short Madison’s time-horizon may have been. It’s hardly surprising, after all, that Madison reasoned in terms of decades rather than centuries, for his concern was the immediate survival of the institution he had helped launch. That he focused on the short term doesn’t mean, though, that his framework should cease to matter for later generations. Indeed, the framework is arguably more pertinent than ever given the degree to which interpretive supplementation has become entrenched in American constitutional practice. In signing the bank bill, Madison employed an interpretive alternative to Article V. We live in the shadow of this precedent. It’s appropriate, then, to concede the framework’s extension to periods in the republic’s existence far beyond the one in which he lived. The other factor to consider here has to do with the countermajoritarian difficulty. Judicial review can indeed veer into constitutional illegitimacy. To the extent that judges deploy the text’s abstract provisions to impose their policy preferences on the law, judicial review is of course an indefensible interference with democratic decision-making. The Madisonian framework, however, offers a way to justify judicial review when rights-supplementation is at stake, for the framework insists that courts rely on objective evidence of a supermajority consensus before moving beyond the text. I argue in later chapters that most of the Court’s privacy decisions can be defended in light of this criterion of legitimacy. In this context, we can turn to a different branch of constitutional law—to the Court’s insistence on evidence of a supermajority consensus before invalidating some specific facet of the death penalty—to see how the countermajoritian difficulty can be overcome. Court opinions in capital cases have relied on evidence of a supermajority consensus, as discerned in what the justices have called the country’s “evolving standards of decency,”15 concerning a

This phrase first appears in Chief Justice Warren’s plurality opinion in Trop v. Dulles, 356 U.S. 86, 100 (1958). 15


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certain type of crime (rape, for instance16) or concerning a specific type of defendant (someone who’s mentally retarded,17 for example), in holding the death penalty to be impermissible. The Court’s decisions in these cases have been supported by a supermajority of at least 30 states; in some instances, the supermajority of states has been in the 40s. In capital cases, then, the Court has relied on a national supermajority consensus to set aside decisions reached by a parochial majority. It’s when evidence of a supermajority consensus is proffered in a Court opinion that one can say that the countermajoritarian difficulty no longer looms as a serious challenge to interpretive supplementation of the text’s enumeration of rights. After all, when evidence of such a consensus exists, the kind of charge Justice Scalia has advanced against death penalty decisions—that, in the final analysis, “it is the feelings and intuition of a majority of the Justices that count”18—is unpersuasive. Once a supermajority consensus has been established, someone can reasonably say that the justices who extend the range of rights haven’t merely relied on a claim that’s exegetically plausible but that they have also identified something that’s become constitutive of national life. In later portions of the book, I note cases where the Court has reached conclusions that aren’t supported by a supermajority consensus. I also note other cases where the argument for such a consensus is plausible but by no means certain. Indeed, because the freedom of expression decisions considered in the remainder of this chapter come under this latter heading, I examine them not to argue that they satisfy all features of the extended Madisonian framework but instead to consider the questions that must be raised when courts supplement the text’s enumeration of rights (and so cut off the possibility of further collective self-rule). Only in the next chapter, when I turn to Bolling and other decisions

16

See Coker v. Georgia, 433 U.S. 584 (1977) (death penalty invalidated for rape of an adult woman following citation that a supermajority of states do not follow this practice) and Kennedy v. Louisiana, 554 U.S. 407 (2008) (rape of a child invalidated following similar showing). 17 See Atkins v. Virginia, 536 U.S. 304 (2002) (death penalty invalidated for the mentally retarded following citation demonstrating that a supermajority of states do not follow this practice). 18 Id. at 348 (Scalia, J., dissenting), quoting Thompson v. Oklahoma, 487 U.S. at 823 (Scalia, J., dissenting).


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concerning race-based legislation, do I consider cases that unmistakably satisfy every component of the extended framework. A Scalia Thought Experiment A passage from a 1997 speech by Justice Scalia provides a helpful starting point for thinking about the logic of rights supplementation. Commenting on the First Amendment, Scalia notes that it doesn’t “list the full range of communicative expression” protected by the Constitution. Continuing, Scalia remarks: Handwritten letters, for instance, are neither speech nor press. Yet surely there is no doubt that they cannot be censored. In this constitutional context, speech and press, the two most common forms of communication, stand as a sort of synecdoche for the whole. This is not strict construction, but it is reasonable construction.19

In this passage, Scalia treats the First Amendment as a platform for extending the range of constitutionally protected rights. The speech and press guarantees, he remarks, “stand as a sort of synecdoche for the whole.” Scalia thus ascends from textual particulars (speech and press) to an unmentioned whole (communicative expression), thereby extending the Constitution’s reach. He then descends from the whole he’s posited by concluding that an unmentioned particular (letter writing by hand) is covered by the unmentioned whole, thereby filling in a gap between oral and printed communication. Each step taken in this provocative argument on behalf of interpretive supplementation merits careful consideration. The first question to ask is the most general: why assume, as Scalia does, that the text is suggestive of further constitutional rights? “[N]ew rights cannot be suddenly ‘discovered’ years later in a document,” Scalia remarks in a different context, “unless everyone affected by the document had somehow overlooked an applicable provision that was there all along.”20 Because it can’t be said that the speech and press clauses have ever been overlooked, it must be that Scalia believes that “everyone affected by” the First Amendment has

19 20

Antonin Scalia, A Matter of Interpretation 37–38 (1997). Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts 80–81 (2012).


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overlooked the possibility that something specific (handwritten letters) and a more general category (communicative expression) were “there all along.” But what reason is there to believe that people failed to notice this? Indeed, why can’t it be said that Scalia’s move from the said to the unsaid isn’t a case of discovering what was there all along but instead is a case of “judicial invention” of a new right, to use a term of abuse Scalia has employed in a different setting?21 Questions such as these can be deployed to undermine any exercise in interpretive supplementation. They can be used, in other words, to defend a not in the text approach to constitutional interpretation, an approach Scalia himself has employed when talking about privacy rights.22 It’s significant, then, that Scalia doesn’t pose such questions here but instead relies on the conclusory adverb surely (as in “surely there is no doubt that they [handwritten letters] cannot be censored”) to initiate his move from the said to the unsaid. Scalia’s surely speaks to an intuition, also entertained by founders such as Hartley and Page, that the text suggests further rights of constitutional standing. It doesn’t conclusively resolve the question of whether to move beyond the text. It does, however, situate Scalia in a long-standing tradition of interpretive practice, a tradition that calls on the judiciary to exercise restraint when supplementing the enumeration of rights but that rejects not in the text as an argument against this. Nothing more definite is possible when answering the whether question. It’s sufficient to justify his decision to move beyond the text by saying that his exercise in supplementation is compatible with the long-standing assumption that the text doesn’t contain a complete inventory of rights. But why rely on the concept of a synecdoche—to turn to the next question pertinent to Scalia’s remarks—to justify the move from the said to the unsaid? Even if it’s granted, in other words, that the text suggests further rights, is it appropriate to use synecdoche-based interpretation to answer the question of how to move beyond the text? This kind of

21

Lawrence v. Texas, 539 U.S. 551, 587 (2003) (Scalia, J., dissenting). See, e.g., the not in the text argument he advances in NASA v. Nelson, 562 U.S. 134, 162 (2011) concerning a claim to a constitutionally protected interest in informational privacy. 22


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interpretation was routinely employed by patristic23 and rabbinic24 commentators on the Bible. Scalia makes no effort to explain why it should also be used when considering the Constitution. He doesn’t even explain what type of synecdoche he’s proposing. Only if we consider the context of his remarks can we establish that Scalia’s appeal is to what Tzvetan Todorov calls a generalizing synecdoche (that is, a train of thought that treats the species X as representative of the genus Y )—and that he is not reasoning in terms of a particularizing synecdoche (a train of thought that treats the genus A as representative of the species B).25 Scalia says nothing about why his synecdoche (and thus the text) should have generalizing force. He simply assumes that this is so. The entire argument is disturbing. Why, in particular, should some portions of the text be understood in terms of figurative meaning while others are not? Should 35 years of age, the Article II age threshold for the presidency, be treated as a generalizing synecdoche for maturity? Should the congressional powers enumerated in Article I, Section 8 be viewed as a generalizing synecdoche for all possible federal powers? Should the reference to We the People in the Preamble be classified as a generalizing synecdoche for all humanity? Christian and Jewish commentators of late antiquity relied on the concept of the synecdoche to move from the specific to the general when searching for precepts about God’s mercy (“animals will be rewarded,” for instance, can be converted to “the humble will be rewarded,” with animals taken as representative of all those who are humble in spirit26). But while a staple of Biblical commentary, synecdoche-based interpretation is not a routine feature of constitutional discourse. There’s a sound reason why it’s been avoided, for serious dangers arise when figurative

23

For analysis of patristic reliance on synecdoche-based interpretation of the New Testament, see Leo V. Jacks, St. Basil and Greek Literature 189 and 212 (1922). 24 For analysis of rabbinic reliance on synecdoche-based interpretation of portions of the Hebrew Bible, see Joel Rosenberg, “Jeremiah and Ezekial,” in Robert Alter and Frank Kermode, eds., The Literary Guide to the Bible 185–89 (1987). 25 Tzvetan Todorov, “On Linguistic Symbolism,” 6 New Literary History 111, 119 (1974). 26 The example is Susan Handelman’s. See The Slayers of Moses: The Emergence of Rabbinic Interpretation in Modern Literary Theory 54 (1982).


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reasoning is introduced into discussion of a legal text. It’s arguable that the necessary and proper clause suggests further powers and that the Ninth Amendment suggests further rights, but the relatively modest term suggests can be limited to semantic associations—to affinities, as I’ve called them— and so doesn’t have to lead to the kind of figurative reasoning employed by those who appeal to a synecdoche. My analysis of Scalia’s remarks will thus be limited to semantic affinities. Because constitutional language is best assumed to be literal, I avoid the overtones that come with the term synecdoche. With the notion of a synecdoche having been set aside, we can return to the methodological questions that accompany Scalia’s decision to supplement specifically enumerated rights. Those questions have to do with the route to supplementation and its range. I noted in the prior chapter that justifications for rights-supplementation can be advanced on teleological and analogical grounds. Scalia’s extension of the text is understandable in terms of the latter option. Letter-writing is like speech, he can be understood to say. Moreover, speech, newspaper publication, and letter-writing are instances of the more general category communicative expression, which also includes gestural motions, musical performance, and visual representation. Because the activities just mentioned have an affinity with speech and press, someone might say, there is an implied First Amendment right to engage in them. One need not speak of an unenumerated right in this context, it could be added, for this term is appropriate only for unmentioned categories distantly related to those related in the text. The term implied right is apt here since this suggests a close affinity to something the text mentions. The argument just provided identifies a method for extending the text, but it offers no guidance as to how far to go. Three possible destinations merit consideration in this context. The first option listed below involves the least ambitious move beyond the text; the third is the most ambitious: 1. A cautious extension: constitutional protection for handwritten letters Scalia’s discussion begins with handwritten letters. It might be said that only this “gap-filling” move is legitimate. Because the text protects words orally communicated and words that are printed, someone


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might say, it also protects words written by hand. A particular appeal of this minimalist argument is that it’s limited to a practice—epistolary communication27—well-known to the founders. 2. A modest extension: constitutional protection for verbal communication Because words are essential to speech and press, it could be said, the proper analogy to draw is to all other types of verbal communication, not merely to letters but to verbal communication included in, say, posters or billboards. 3. An ambitious extension: constitutional protection for communicative expression As we have seen, Scalia moves to a more remote category—“the full range of communicative expression”—and doesn’t comment on either of the less ambitious options just noted. His ambitious extension offers the possibility of protection for any act undertaken to communicate an idea or emotion to others. It might even include hat-wearing. John Page, it will be recalled, noted that “a man has been obliged to pull off his hat when he appeared before the face of authority,” so hat-wearing in defiance of authority might well be classified as an act of communicative expression (and hat-wearing as a fashion statement might qualify as well). A Question of Legitimacy As we’ve seen, Scalia derides those who “discover” (the quotation marks are his) new rights in old texts. Even if we grant that his comments on the First Amendment don’t merit this kind of derision, the question arises as to why he settles on communicative expression rather than the two more modest options. It can readily be granted that all three options noted above are plausible; each, in other words, has an affinity with categories mentioned in the text. But plausibility is merely a necessary condition for interpretive supplementation under the extended Madisonian framework. According to that framework, a determination of legitimacy should be made within the boundaries of plausibility.

27

For a study that emphasizes the importance to eighteenth century novelists of epistolary communication, see Joe Bray, The Epistolary Novel: Representations of Consciousness (2003).


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Scalia provides no rationale for preferring his proposed extension of the text. It’s easy enough to account for his preference by turning to Supreme Court case law, for as we shall see in the next portion of this chapter, Court opinions, which Scalia joined in full, have relied on the concept of communicative expression.28 But the fact that the Court took this position isn’t sufficient to justify it. Indeed, Scalia has nothing to say about why option three should be adopted. If we turn to the extended Madisonian framework, we find that it too can’t provide a strong reason to prefer the third option over the others. Because no legislation has been adopted offering special protection for communicative expression, the most that can be said on behalf of the third option is that expressiveness appears to be part of the zeitgeist. There is a certain appeal to this kind of argument. That is, a claim of this kind relies on the intuition that expressive individualism is a key feature of modern life—and this intuition is reinforced by the further thought that expressive individualism has not substantially undermined the stability of everyday social interactions. But an appeal to the zeitgeist is manifestly less satisfactory than an appeal to legislative trends. Thus a relatively modest verdict is in order here: the third option appears sound given the temper of the times and the collective experience of modern national life, but there is no pattern of legislative practice that supports it.

An Implied First Amendment Right to Perform Music The casualness of Scalia’s move from speech to communicative expression in his 1997 speech finds a parallel in a move beyond the text in Ward v. Rock against Racism, a 1989 case whose majority opinion Scalia joined in full. At stake in Ward was a challenge to the constitutionality of a New York City ordinance regulating the sound produced by singers and 28

In addition to Ward—see supra note 11—Scalia joined in full the Court’s opinions in Texas v. Johnson, 491 U.S. 397 (1989) and United States v. Eichman, 496 U.S. 310 (1990), cases that offer protection for flag-burning as expressive conduct within the meaning of the First Amendment.


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instrumentalists using band shells in the city’s parks. Because the challenged ordinance was concerned with music, the Ward Court could have used a straightforward not in the text rationale. The text is concerned with speech, not music, the Court could have said, thus making it unnecessary to review a sound-ordinance at all. But this isn’t the position the Court took. Justice Kennedy’s opinion for the Court holds that there is a First Amendment right to perform music—and it then concludes that the New York City sound regulations at issue are compatible with the time, place, and manner restrictions essential to that provision. This latter conclusion is of no significance for us. The former matters a great deal, however, since it’s an unmistakable example of interpretive supplementation of an enumerated right. Kennedy’s entire commentary on an implicit First Amendment right to perform music is as follows: Music is one of the oldest forms of human expression. From Plato’s discourse in the Republic to the totalitarian state of our own times, rulers have known its capacity to appeal to the intellect and the emotions, and have censored musical compositions to serve the needs of the state. [Kennedy cites here a passage from book three of Plato’s Republic, a New York Times article on dictators’ fear of permitting music to be performed in public, another Times article on the Soviet Union’s refusal to allow performances of Igor Stravinsky’s music, and yet another Times article on censorship of music in the People’s Republic of China.] The Constitution prohibits any like attempts in our own legal order. Music, as a form of expression and communication, is protected under the First Amendment.29

This passage doesn’t address the issue of whether to supplement the text’s enumeration of rights. It simply relies on the premise of incomplete specification and the further premise that it’s proper to move from the said to the unsaid without reliance on Article V. The passage is, however, moderately informative about how to supplement the text, for Kennedy offers reasons as to why musical performance merits First Amendment protection. 29

491 U.S. 781, 791 (1989).


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Kennedy’s route to supplementation relies on familiar analogical reasoning. Because speech and press have been censored, there is good reason to think of musical performance in the same vein. An argument of this kind doesn’t treat the First Amendment as a synecdoche. Rather, it’s informed by the kind of attention to similarity that’s a hallmark of the common law method. This point is sufficient to establish the plausibility of Kennedy’s exercise in rights-supplementation. The step toward legitimacy is more problematic, however. One reason why it’s open to challenge has to do with the post-founding evidence Kennedy cites for concluding that music is a form of constitutionally protected expression. His reference to Plato’s Republic would have been familiar to the ratifiers. But of course, his references to modern rulers would not. To accept the soundness of Kennedy’s argument for moving beyond the text, in other words, one has to rely on a developmental approach to supplementation—on an approach that holds it permissible to extend the range of rights by considering post-ratification experience. The previous chapter noted how Madison accepted a developmental framework for justifying textual supplementation when signing the bank legislation of 1816. Here, we encounter a parallel example pertinent to rights. Needless to say, the arguments considered here are concerned with the relatively modest question of whether to recognize a constitutional right to perform music. But however modest the issue under consideration, the principle at stake still matters. A proponent of developmental constitutionalism will think of post-founding experience as relevant to a supplementation decision. In contrast, a proponent of the plan-asdraught version of originalism favored by Justice Scalia would deem it impermissible to appeal to twentieth century experience to determine the meaning of an eighteenth century provision. Indeed, because there was a well-known case in which music was censored in the United States during the nineteenth century (performances of Verdi’s La Traviata were banned in Brooklyn during the 1860s30), it would be troubling for someone relying on Scalia’s approach to originalism to claim that the ratifiers would have understood that it’s acceptable to derive a right to

30

See George Martin, Verdi in America: Oberto through Rigoletto 2 (2005).


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perform music from the First Amendment. It’s thus surprising that Scalia, an opera aficionado,31 didn’t write separately in Ward to comment on music censorship—and opera censorship in particular—in eighteenth and nineteenth century America. If the implied right at stake in Ward is sound only on developmental grounds, can it be defended through an appeal to the extended Madisonian framework? No conclusive answer to this is possible. In reversing course on the bank’s constitutionality, Madison was able to point to concrete evidence of national practice—able, in particular, to point to a pattern of legislative practice supportive of his decision. No such evidence is available concerning musical performance. The zeitgeist argument noted earlier is pertinent here. That is, someone might contend that however threatening a performance of La Traviata may have seemed to the social order in the mid-nineteenth century, no one can reasonably say that musical performance poses such a threat to day. But however appealing this argument may be, it rests on nothing more than an intuition about the spirit of the age—and so can’t be ranked as a bona fide claim about national practice. Kennedy’s Ward conclusion thus has to be relegated to a purgatory of constitutional legitimacy. It feels right, but it can’t be justified through reliance on the kind of factors Madison deemed important. The next chapter builds on these points by examining an exercise in developmental supplementation that can readily be justified by reference to altered national practice. In studying Bolling v. Sharpe, we encounter a case compatible with every feature of the extended Madisonian framework. The sobering points encountered here shouldn’t be forgotten, however, for we have encountered, in both the Scalia thought experiment and the Ward right, extensions of the text that are plausible (given the affinity between the said and the unsaid) but not necessarily legitimate given the course of national experience. Furthermore, we have seen that there are occasions when a move beyond the text may appear legitimate when assessed in terms of everyday experience (since it poses

31

See Joan Biskupic, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia 304 (2009).


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no threat to the social order and can rely on a semantic aďŹƒnity with categories mentioned in the Bill of Rights) even though it has no stronger credential than this as to constitutional legitimacy. We will return to each of these points when thinking about privacy rights, for in invoking the concept of privacy the Court sometimes resolves cases in ways that seem intuitively sound but that ďŹ nd no support in the kind of evidence Madison considered essential to legitimate supplementation of the text.


Chapter 3: Developmental Supplementation

The Fourteenth Amendment prohibits each state from denying equal protection of the laws to persons within its jurisdiction. The amendment says nothing, however, about a federal obligation to treat people equally. The framers of the amendment may have assumed that the federal government is also subject to this obligation. But even if they did entertain this assumption, they didn’t insert anything into the text to this effect. The text thus imposes an equality obligation on the states but not on the central government. This distinction has a bearing on the school desegregation decisions of 1954. In resolving Brown v. Board of Education, the Court relied on the Fourteenth Amendment equal protection clause to invalidate statemandated racial segregation.1 On the other hand, in Bolling v. Sharpe, a companion case, the Court had no similar provision to deploy in assessing the permissibility of federally mandated racial segregation in District of Columbia schools. Given the text’s silence, the Bolling Court had an obvious option. There’s nothing in the text that imposes an equal protection obligation on the federal government, the Court 1

Brown v. Board of Education, 347 U.S. 483 (1954).

© The Author(s) 2016 W.C. Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_4

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could have said. Chief Justice Warren’s Bolling opinion relies instead on interpretive supplementation. “In view of our decision [in Brown, announced the same day] that the Constitution prohibits the states from maintaining racially segregated schools,” Warren remarks, “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”2 Unthinkable? Warren’s adjective gives voice to the widely shared intuition, already encountered in the discussion of hat-wearing and in Scalia’s comments on communicative expression, that it’s permissible—perhaps even obligatory—to supplement the text’s enumeration of rights. To this extent, Bolling endorses a tradition of interpretive practice we’ve already examined. But Bolling also raises questions that have yet to be addressed. This is because Bolling unmistakably breaks with the past in supplementing the text’s enumeration of rights. It bypasses Article V—and it does so to establish a right to integrated schooling in the District of Columbia the framers of the Civil War amendments quite clearly did not accept. It’s for this reason that Bolling is pertinent to modern privacy rights. The right of same-sex couples to marry one another—to take an obvious example—isn’t merely a supplementary right, it’s a right that supplements the text developmentally, for just as there’s no doubt that the ratifiers of the Fourteenth Amendment didn’t think of racially integrated schooling as a right that could be claimed against the federal government, there’s also no doubt that the eighteenth and nineteenth century ratifiers of the text didn’t think of a right of samesex marriage as something that can be asserted against either the states or the federal government.3 Like Obergefell v. Hodges, the case that establishes the same-sex marriage right, Bolling reappraises the past— and each does so by extending the range of constitutionally protected freedom. It’s this twin combination (reappraisal of the past through

2

Bolling v. Sharpe, 347 U.S. 497, 500 (1954). At the time of the Constitution’s adoption, no state permitted same-sex marriage. Indeed, no state permitted this until Massachusetts did so in Goodridge v. Department of Health, 440 Mass. 309 (2003). It’s in this sense that Obergefell v. Hodges, 135 S.Ct. 2584 (2015), reappraises the past. It supplements the text in a way that almost certainly wouldn’t have been considered legitimate by those who ratified it.

3


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interpretive supplementation of the text) that’s distinctive about numerous rights pertinent to the exercise of personal autonomy. In examining the presuppositions essential to a justification of Bolling, we take one further step needed to think about supplementing the text on behalf of privacy rights. This further step requires consideration of a factor rarely mentioned in constitutional law yet essential to any account of doctrinal change: the emergence of a new constitutional norm in the absence of Article V deliberation. Most judicial rhetoric presupposes a permanent body of rights and powers. Interpreters talk about what the text requires or permits; they rarely note that some provisions of the Constitution have been authoritatively said to permit X at one time and to prohibit X at a later time (or vice versa). It’s possible of course to account for an interpretive reversal of this kind by saying that the earlier decision was incorrect. But this argument is problematic at best when the earlier decision concerning X has relied on original understandings of the text’s meaning, for then a claim about the correctness of the later decision about X necessarily suggests that the text’s ratifiers misunderstood its meaning.4 A more plausible account, one defended in this chapter, is that interpretive reversals produce era-appropriate readings of the text—that is, they reassess concepts mentioned in the text in light of premises consistent with its abstract statements of principle but inconsistent with concrete ratifier understandings of the proper application of those principles. Emergence issues are inescapably relevant to privacy cases. Members of the founding generation had little to say about government’s role in regulating private life. Moreover, to the extent that they considered

In Roper v. Simmons, for instance, Justice Kennedy states in his opinion for the Court that “[t]he Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed” (543 U.S. 551, 566 (2005)). His use of the present tense—forbid—implies that this was always the case. But as Justice Scalia noted in his opinion for the Court in Stanford v. Kentucky, which was overruled by Roper, “the common law [in force at the time the Eighth Amendment was adopted] set the rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted capital punishment to be imposed on anyone over the age of 7” (492 U.S. 361, 368 (1989)).

4


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questions that now come under the heading of privacy rights, they showed no interest in recognizing a liberty interest to engage in conduct of the kind that’s now constitutionally protected. Bolling is particularly instructive for our purposes, then. The topic it addresses has no connection to privacy, but its developmental extension of the text serves as a template for determining the legitimacy of later privacy cases. In particular, Bolling is compatible with all five features of the extended Madisonian framework of interpretive supplementation. It (i) relies on post-founding experience to give concrete meaning to the text’s abstract provisions, (ii) is consistent with a supermajority consensus that gradually emerged following ratification of the text, (iii) breaks developmentally with the past through reliance on such a consensus, (iv) extends the period of “liquidation” generations beyond the ratification era, and (v) can be defended, as against the countermajoritarian challenge, as an appropriate exercise in judicial power given its support in contemporary understandings of the text’s abstract commitments of principle. In using this template, I examine Bolling’s ramifications for the practice of developmental supplementation. I do so by considering first its intriguing, but ultimately unconvincing, effort to find a textual home for the right it announces, an effort that has a close parallel in the Court’s attempts to “house” privacy rights that protect personal autonomy in the Fifth and Fourteenth Amendment due process clauses. I then turn to the reappraisal premise discernible in the desegregation decisions. Indefinite textual language, I suggest, has made it possible for the Court to engage in an ongoing, gradual reassessment of invidious traditions in light of post-ratification experience that makes it reasonable to suppose those traditions are not essential to maintaining social order. In addressing the past under the extended Madisonian framework, justices can properly rely on a post-founding consensus concerning proper application of the text’s abstract categories, I argue. They thus can disregard original understandings as long as this doesn’t lead to distortion of the text’s language. On this reckoning, developmental constitutionalism makes possible a pattern of piecemeal reform of the nation’s institutions, one that offers a way to understand the profound transformation that’s occurred under the banner of privacy rights. There’s no reason to believe that the Constitution was adopted to facilitate the process of judicial reform


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discernible in cases such as Bolling and Obergefell. Nonetheless, the plan adopted at the outset is compatible with ongoing reassessment of the past in light of the broad abstractions on which it relies.

Interpretive Supplementation and the Problematic Quest for a Textual Home for Unmentioned Rights Warren’s Bolling opinion focuses on whether to move beyond the text, not on how to do so. The latter issue, Warren assumes, is answered in Brown. If the Fourteenth Amendment equal protection clause forbids public school segregation by the states, Bolling holds, then the Constitution imposes an exactly similar obligation on the federal government. Numerous postBolling opinions have extended this replication-premise to issues beyond race, in particular to equal treatment questions associated with gender and sexual orientation.5 Thus an entire line of cases, all dependent on Bolling, treats as straightforward the how question that’s so difficult to answer in many rights-supplementation cases. On the other hand, no straightforward answer is possible for the whether question as far as Bolling is concerned. Indeed, Bolling executes a momentous judicial bypass of Article V. Warren’s opinion for the Court addresses the whether question by emphasizing the affinities between due process of law, a term mentioned in the Fifth and Fourteenth Amendments, and equal protection of the laws, a term mentioned only in the latter provision. “The concepts of equal protection and due process,” Warren writes, both stemming from our American ideal of fairness, are not mutually exclusive. The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law,” and therefore, we do 5 See Windsor v. United States, 133 S.Ct. 2675 (2013), which invalidates a portion of the Defense of Marriage Act in light of the Bolling right and summarizes earlier cases that have applied the right to the federal government.


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not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.6

Because Warren is careful to emphasize that due process and equal protection aren’t invariably interchangeable, he can’t be charged with conflating the two concepts when moving from the said to the unsaid. He can nonetheless be charged with disregarding a core principle pertinent to the interpretation of any text, for if a constitutional provision (in this case the Fourteenth Amendment) protects a due process right as well as an equal protection right, it’s problematic indeed to invoke the former to justify a move to the latter. Indeed, on no reasonable analysis can it be said that the Fifth Amendment due process clause was understood to mandate equal legal treatment of members of different races. As Lino Graglia has put it, Bolling asks us “to believe that a constitutional provision adopted in 1791 as part of a Constitution that explicitly recognized and protected slavery was meant to prohibit school segregation.”7 Even if the Fifth Amendment can’t serve as a textual home for Bolling, might the Court have found one, with only a little more effort, by turning to the citizenship clause of the Fourteenth Amendment? That clause declares that “[a]ll 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.” The effect of this clause is to insure equal rights for all citizens, it could be said—and it might therefore be said to justify Bolling’s rejection of racial segregation at the federal level.8 Though intriguing, this effort to provide Bolling with a textual home is also unpersuasive, for it fails to come to terms with the distinction between citizens, the category essential to the clause just mentioned, and persons, the category employed in the equal protection clause (which 6

Bolling, 347 U.S. at 499. Lino Graglia, “Constitutional Law: A Ruse for Government by an Intellectual Elite,” 14 Georgia State University Law Review 767, 774 (1998). 8 For an argument along these lines, see Ryan Williams, “Originalism and the Other Desegregation Decision,” 99 Virginia Law Review 493 (2012). 7


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declares that no state may “deny to any person within its jurisdiction the equal protection of the laws”). That is, because Bolling is premised on the assumption that the federal equal protection obligation is exactly similar to the one imposed on states by the Fourteenth Amendment, it can’t be said to hinge on the citizenship clause since that clause covers only citizens, not persons. So if Bolling had been justified on the basis of the citizenship clause, it would not have required a desegregation remedy for dark-skinned legal aliens attending District of Columbia schools. It would have generated a different kind of two-tiered legal regime for public education: one for citizens, the other for non-citizens. Given the unsuitability of the citizenship clause as a textual home for the Bolling right, one is left with one of three options for thinking about the basis for the Court’s conclusion in the case: to hold that the right enjoys no constitutional legitimacy, to place it in the ramshackle home (the Fifth Amendment due process clause) the Court assigned it, or to give up on finding it a textual home but to contend that the right is nonetheless constitutionally legitimate. The third option is the soundest, I suggest—not merely for Bolling but for unenumerated privacy rights bearing on personal autonomy. The first hinges on a not in the text rationale, a rationale that’s never conclusive given the premise of incomplete textual specification. The second relies on an oxymoron: on a claim that procedure has a substantive component. The third, while unsatisfactory for those who insist on assigning rights and powers a textual nook, is nonetheless preferable to the other two. This is because it’s reasonable to think holistically about the text’s inventory of rights—to focus not on specific provisions but instead on the character of everything that’s enumerated. Sedgwick didn’t argue that the right to wear a hat can be derived from the First Amendment. Rather, he assumed that certain rights are sufficiently remote from those mentioned in the text that they can’t be derived from any specific provision but are constitutionally protected given the overall commitment to freedom discernible in the Constitution. If we draw on terminology Hamilton introduced in a different context, we can say that Bolling announces a resulting, not an implied, right. It’s appropriate, for instance, to speak of an implied First Amendment right to compose a handwritten letter given the close affinity between


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this right and that provision’s reference to speech and press. However, one should speak of a resulting right to equal treatment by the federal government. Resulting rights are homeless. No effort should be made to assign them a textual nook. Instead, it’s sufficient to grant that the text is a platform for the derivation of further, unmentioned rights when these are compatible with a supermajority consensus that either existed at the moment of ratification (wearing a hat, for instance) or that emerged over the course of the nation’s history (equal treatment of members of different races). In the chapters on privacy, I argue that modern cases such as Griswold v. Connecticut and Lawrence v. Texas announce resulting rights in the sense just mentioned here. To underscore the importance of this point, it might be helpful to turn to the one right regularly litigated in modern constitutional law—the right to engage in interstate travel— that has often not been assigned a textual home. This right might be classified as a privilege or immunity of national citizenship;9 alternatively, an interpreter might try to derive it from the interstate commerce clause.10 The modern Court, however, has tended to avoid the “nesting” impulse discernible in Bolling. Instead, it has forthrightly declared that “[w]e have no occasion to ascribe the source of this right [to engage in travel from state to state] to a particular constitutional provision.”11 Expanding on this, one might say that Bolling, Griswold, and Lawrence have no textual nests. Rather, they result from the overall mass of rights given the trajectory of national change since the text’s adoption. In contrast, the Katz right concerning informational privacy in phone calls is indeed an implied right. Just as a right to compose a letter has a close affinity with the activities mentioned in the First Amendment, the Katz right feeds off the Fourth Amendment’s concern with security in the conduct of everyday life. In introducing this distinction between implied and resulting rights, my aim is merely to clarify a terminologically problematic domain of

9

Saenz v. Roe, 526 U.S. 489, 502–3 (1999). Edwards v. California, 314 U.S. 160, 172–3 (1941). 11 Shapiro v. Thompson, 394 U.S. 618, 630 (1969). 10


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constitutional law. On the Court’s analysis, the Fifth and Fourteenth Amendments have substantive and procedural components. Substantive due process—a term widely employed in constitutional law despite its oxymoronic character—refers to those rights not mentioned in the text that nonetheless have been accorded constitutional standing (the right of interstate travel excepted, of course, though there is no reason in principle why it too couldn’t be placed under this awkward heading).12 Procedural due process, an exercise in redundancy but a necessary one given the concept of substantive due process, is used to refer to the steps the government must take to deprive someone of life, liberty, or property.13 The concept of substantive due process is now so deeply ingrained in modern doctrine there’s no point in trying to eliminate it. Like other commentators, I thus use it to refer to the exercises in interpretive supplementation undertaken in cases such as Griswold, Lawrence, and Obergefell. I do so reluctantly, though, given the terminological undertow that comes with the category. As far as unmentioned rights are concerned, the critical distinction is between those that are implied by a specific provision and those that result from the mass of rights mentioned elsewhere in the text. I return to this point in later chapters that discuss privacy rights.

Bolling’s Exercise in Developmental Supplementation The “housing” question having been addressed, we can now turn to a developmental issue: Bolling’s status as a case that doesn’t merely supplement the text but that does so in a way that breaks with the past. It’s this double character of the Bolling right that makes it particularly pertinent to our inquiry, for in Bolling, as in later privacy cases, the Court accorded

12

For discussion of the label and analysis of many pertinent cases to which it applies, see James Ely, “The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process,” 16 Constitutional Commentary 319 (1997). 13 For a statement of the modern Court’s approach to procedural due process, see County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998).


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constitutional standing to a norm that emerged gradually as they began to be thought compatible with abstract principles contained in the text. A framework of interpretive supplementation must account for normemergence as an alternative to Article V deliberation. In thinking about the emergence of new norms of racial equality in twentieth century America, we have a chance to consider the kind of trajectory of change that has brought privacy within the domain of constitutional law. Plan as Draught vs. Plan as Scheme: Assessing the Constitutionality of School Segregation, Miscegenation—and More An exchange between Justice Scalia and Theodore Olson, the lawyer for respondents in Hollingsworth v. Perry, a 2013 case concerned with California’s ban on same-sex marriage, provides a platform for considering the issues associated with developmental constitutionalism: Scalia: I’m curious. When, when did it become unconstitutional to exclude homosexual couples from marriage? 1791 [the year the Bill of Rights was adopted]? 1868 [the year the Fourteenth Amendment was adopted]? [W]hen, when did this become law? Olson: When—may I answer your question in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriage? [W]hen did it become unconstitutional to assign children to separate schools? Scalia: It’s an easy question, I think, for that one. At, at the time that the Equal Protection Clause was adopted. That’s absolutely true.14

In this exchange, Olson, by breaching the etiquette of oral argument, provokes Scalia into taking a stand directly counter to the framework of developmental constitutionalism. School segregation legislation became unconstitutional in 1868, the moment when the Fourteenth Amendment was ratified, Scalia asserts. Miscegenation legislation (that is, a statutory scheme that prohibits interracial marriage or punishes interracial extramarital sex more severely than its intraracial analogue) also became 14

Transcript of oral argument before the Supreme Court in Hollingsworth v. Perry, March 26, 2013, available at sblog.s3.amazonaws.com/wp-content/uploads/2013/03/perry.transcript.pdf 38 (lines 2–16).


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unconstitutional at the moment of ratification. Article V deliberation, in other words, immediately transformed the constitutional order. It may have taken the Court more than 75 years to announce that school segregation is unconstitutional. Nearly a century may have been needed to declare that miscegenation legislation is invalid. But the actual constitutional status of these practices was resolved “at the time the Equal Protection Clause was adopted.” In contrast, the status of same-sex marriage was not resolved as of 1868 (or at any other time) by means of deliberation about the text, Scalia can be understood to say, so the Court has no authority to invalidate legislation prohibiting it. In answering Olson, Scalia states in capsule form the premises essential to plan-as-draught originalism, premises that reject in principle the relevance of post-ratification narratives of change to interpretation of the text. If Scalia’s argument relied on a strong factual foundation, it would pose an interesting challenge to the developmental constitutionalism implicit in Olson’s rhetorical questions. But Scalia’s retort is factually weak. It’s questionable as far as school desegregation is concerned; it’s palpably inaccurate with respect to miscegenation legislation. In each instance, a norm emerged long after ratification and was adopted by the Court through reliance on a post-founding consensus at odds with understandings that accompanied the text’s adoption. This point must be established first before we turn to theoretical questions about the legitimacy of judicial incorporation of emergent norms into constitutional doctrine. Brown, Bolling, and the Original Understanding of the Fourteenth Amendment’s Application to School Segregation In 1868, when the Fourteenth Amendment was adopted, the District of Columbia’s schools were racially segregated, as were the schools of many northern as well as southern states. Relying on this point, scholars have tended to assume that section one of the amendment was meant to insure separatebut-equal, not racially integrated, public education for black children.15 A 1995 law review article by Michael McConnell challenged this scholarly consensus—and so provided a degree of support for Scalia’s premise about

Alexander Bickel took this position in his analysis of Brown. See his “The Original Understanding and the Segregation Decision,” 69 Harvard Law Review 1 (1955).

15


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school desegregation. McConnell’s starting point for inquiry is striking. “Such is the moral authority of Brown,” McConnell remarks, that if any particular theory does not produce the conclusion that Brown was correctly decided, the theory is seriously discredited. Thus, what was once seen as a weakness in the Supreme Court’s decision in Brown [i.e., that it failed to honor original understandings of the Fourteenth Amendment’s equality principle] is now a mighty weapon against the proposition that the Constitution should be interpreted as it was understood by the people who framed and ratified it.16

In this passage, McConnell offers a conditional justification for planas-draught originalism. If the Fourteenth Amendment’s ratifiers understood it to require school desegregation, McConnell argues, then his version of originalism can be classified as valid. The converse also must be considered, though. Given Brown’s moral authority, McConnell appears to suggest, a theory that cannot account for its legitimacy should be set aside. McConnell’s argument for Brown’s legitimacy relies on the usual components of plan-as-draught originalism. It concedes by implication that the text alone isn’t sufficient to determine the constitutionality of public school segregation, but it argues that the Constitution can nonetheless be taken as a blueprint (a draught) if interpreters attend to the meaning assigned its words at the time of their adoption. McConnell’s approach is unusual only because it focuses on framer commentary from 1874 congressional debates (the Fourteenth Amendment was ratified in 1868) to establish the text’s meaning. In particular, McConnell demonstrates that some framers stated during the course of debates about what would ultimately become the Civil Rights Act of 1875 that they understood the Fourteenth Amendment to require school desegregation.17 Intriguing as these comments are, they can’t, however, be considered as evidence of original understandings on a plan-as-draught Michael McConnell, “Originalism and the Desegregation Decisions,” 81 Virginia Law Review 947, 952–3 (1995). 17 Id. 1093–101. 16


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conception of interpretation. This is because they don’t establish that the Fourteenth Amendment was understood at the moment of adoption to require school desegregation, for on McConnell’s account its proponents explained the amendment’s significance for public education six years after ratification. A further difficulty with McConnell’s argument has to do with his failure to attend to ratifier understandings of the text. Most of the comments McConnell cites were made by the amendment’s framers. Though pertinent to the question of original understandings, these can’t be considered decisive. For purposes of plan-as-draught originalism, the understandings that matter are those of the ratifiers (the text’s commissioning body, as it were), and here the evidence runs strongly counter to the McConnell thesis. This is because, as noted earlier, many northern states operated racially segregated public school systems in 1868.18 Did the northern legislators who voted to ratify the Fourteenth Amendment understand it to require abolition of their own segregation legislation? This is possible of course. But even McConnell concedes that it’s unlikely, for he remarks that “school desegregation was deeply unpopular among whites, both in the North and South, and school segregation was very commonly practiced.”19 McLaughlin, Loving, and the Original Understanding of the Fourteenth Amendment’s Application to Miscegenation Legislation A defense of Brown or Bolling in terms of plan-as-draught version of originalism is factually weak, then. A defense along these lines of the mid-twentieth century cases that invalidated miscegenation statutes is even weaker; indeed, such a defense is wholly unsupported by documentary evidence from the mid-nineteenth century. This is because the amendment’s framers went out of their way to assure ratifiers that miscegenation legislation would not be subject to invalidation under

Michael Klarman, “Brown, Originalism, and Constitutional Theory: A Reply to Professor McConnell,” 81 Virginia Law Review 1881, 1886 (1995). 19 Michael McConnell, “The Originalist Justification for Brown: A Response to Professor Klarman,” 81 Virginia Law Review 1937, 1938–9 (1995). 18


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the amendment—and because the Court actually upheld such legislation against constitutional attack during the late nineteenth century. Once these two points are considered in conjunction with one another, the case for invalidating miscegenation statutes on the basis of original understandings of the amendment collapses. Congressional sponsors of the amendment took pains to assure the public that it wouldn’t lead to constitutional invalidation of miscegenation statutes. In 1866, for instance, Thomas Hendrick, a Democrat from Indiana, asked Lyman Trumbull, one of the amendment’s sponsors, during the course of senatorial debate whether his state’s criminal prohibitions on “amalgamation”—a code word for interracial sex—would survive constitutional scrutiny following the amendment’s adoption.20 Trumbull’s reply relied on an equal-application conception of the term equal protection, one that focuses on similar treatment of classes rather than similar treatment of individuals. “Does not the law make it just as much a crime for a white man to marry a black woman as for a black man to marry a white woman and vice versa?” Trumbull asked. I presume there is no discrimination in this respect and therefore your law [i.e., the miscegenation statute in effect in Indiana at the time] forbidding marriages between whites and blacks operates alike on both races. . . . If the negro is denied the right to marry a white person, the white person is equally denied the right to marry the negro. . . . Make the penalty the same on all classes of people for the same offense, and then no one can complain.21

No one can complain? On Trumbull’s analysis, the concept of equal protection isn’t offended when the penalty is the same for “all classes of people.” But of course a complaint can readily be imagined here, for an individual within a given class might complain that miscegenation statutes improperly limit sexual choice—that they penalize someone for having sexual contact with an individual from outside his or her class. An example of this latter version of equal protection—an

20 21

Congressional Globe, 39th Congress, 1st Session, pt. 1, at 318 (January 19, 1866). Id. 322.


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individualized, as distinguished from a group-based, version of the concept—can be found in the rights-claim advanced in Pace v. Alabama, an 1883 case. At stake in Pace was the constitutionality of an Alabama criminal statute that imposed a heavier penalty on interracial than on intraracial extramarital sex. Tony Pace, a black man, contended that the statute discriminated against him on the basis of race since his female lover was white. The Court disagreed. “The punishment for each offending person, whether white or black, is the same,” Justice Field stated in an opinion for a unanimous Court.22 Only a moment’s thought is needed to establish that the rule announced in Pace is consistent with the separate-but-equal rule announced in Plessy v. Ferguson—and that both cases are consistent with Trumbull’s approach to equal protection. That approach sought equal treatment for members of different races, but it permitted government to bring this about in a way that avoided “the commingling of the two races,” to draw on Plessy’s terminology.23 The new norm of individualized equality—a norm that accepted the possibility of extensive interracial contact—gradually gained support in the first half of the twentieth century. It was adopted by the Court when there was evidence of supermajority support for it. In 1954, when Brown and Bolling were decided the lineup in favor of integrated education was 31-17, thereby making the decisions acceptable in light of the extended Madisonian framework.24 By the 1960s, a roughly

22

Pace v. Alabama, 106 U.S. 583, 585 (1883). Plessy v. Ferguson, 163 U.S. 537, 546 (1896). The Plessy Court stated in dicta that “laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, yet they have been universally recognized as within the police power of the State” (Id. 545). It also indicated in dicta that it considered racial segregation in public education to be constitutionally acceptable. “[T]he establishment of separate schools for white and colored children,” it stated, “has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced . . . ” (Id., citations omitted). 24 Brown, 347 U.S. at 490. For the state lineup, see Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 311 (2003). 23


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similar pattern of supermajority repudiation of the past prevailed as far as miscegenation statutes are concerned,25 and the Court’s decisions implicitly relied on this background consideration. McLaughlin v. Florida, decided in 1964, unanimously overruled Pace v. Alabama, which had also been unanimously decided—as clear-cut an example of an interpretive reversal as one can find in American constitutional law.26 Three years later, Loving v. Virginia invalidated a criminal prohibition on interracial marriage.27 Loving thus directly repudiated ratifier understandings of the text. The conclusions reached in McLaughlin and Loving are consistent with the text’s language. They aren’t, however, consistent with ratifier understandings of the Fourteenth Amendment. Indeed, they legitimate a social order viewed with dread by that provision’s ratifiers, a world in which “amalgamation” has diluted racial purity. By the mid-twentieth century, the trajectory of national experience had established that a “commingling” of the races would not trigger social collapse, so in this sense Brown, Bolling, McLaughlin, and Loving come not only with credentials established by legislative change but attest as well to a system of interaction believed at one time to be a form of social suicide but understood a century later to be compatible with social stability. Judicial Reappraisal of the Past Because the McConnell narrative doesn’t credibly account for the legitimacy of Brown/Bolling and because no narrative has even been attempted that traces McLaughlin/Loving to original understandings, the question arises whether a partisan of planas-draught originalism should abandon it in favor of a developmental approach to the text or whether the partisan should instead reject the mid-twentieth century racial equality decisions. McConnell’s comments point to a sensible answer. Given the moral authority enjoyed by Brown and the other decisions just discussed, plan-as-draught originalism should be abandoned and the decisions endorsed. This approach

25

As of the mid-1960s, 19 of the 50 states prohibited interracial marriage. Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America 270 (2009). 26 McLaughlin v. Florida, 379 U.S. 184 (1964). 27 Loving v. Virginia, 388 U.S. 1 (1967).


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reconciles theory and practice. It treats the text as a scheme—or, to use another entry in Noah Webster’s definition of plan, it treats the text as the starting for an expedition and so accounts for reappraisal of the national past in light of collective experience not anticipated at the outset.28 In generalizing, we can say that developmental constitutionalism has made it possible for the Court to deploy the text’s abstract language to rethink traditions of invidious treatment that were once considered acceptable. The Court has rethought the law of gender relations, for instance—and in doing so, its members have lamented the prevalence of “gross, stereotyped distinctions between the sexes” that had been imprinted on American statutes.29 It has reassessed numerous features of the death penalty, eliminating it for juveniles and the mentally retarded, for example.30 The Court has even reappraised laws permitting the police to use deadly force against fleeing felons.31 In each of the instances just cited, it was possible to point to an already-formed supermajority consensus about a new social norm, a consensus that was then imported into constitutional doctrine. Court majorities thus haven’t imposed their own preferences on the law. Rather, majority opinions have identified what’s constitutive of American life. Although the text wasn’t adopted to facilitate piecemeal reform, this has become a hallmark of modern constitutional decision-making. Because developmental constitutionalism accounts so much better for current constitutional doctrine than does the plan-as-draught version of originalism, it’s essential to emphasize that it’s open to objection as well. In particular, someone might object to its account of interpretive reversals—that is, someone might say that it doesn’t satisfactory explain why it’s proper for the Court to say at time 1 that a given provision requires (or prohibits) X and to say at time 2 that the opposite conclusion follows 28

My thanks to Mike Cullina for noting the significance of Webster’s comment on plans for expeditions. 29 Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (Brennan, J., plurality opinion). 30 See Atkins v. Virginia, 536 U.S. 304 (2002) (mentally retarded), and Roper v. Simmons, 543 U.S. 551 (2005) (adolescents). 31 Tennessee v. Garner, 471 U.S. 1 (1985).


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from the same provision. Pace/McLaughlin is an example of an interpretive reversal. Bowers/Lawrence is a particularly prominent interpretive reversal in modern privacy case law. A straightforward way to justify any interpretive reversal is to say that the earlier decision was mistaken. In what sense, though, can a proponent of developmental constitutionalism contend that, say, Pace was mistaken when the Court that decided it relied on the understanding of equal protection entertained by the ratifiers only a decade and a half earlier? If Pace was mistaken on plan-as-draught grounds, it would seem that the framers of the Fourteenth Amendment misunderstood the meaning of the very words they had adopted. It’s possible of course for an author to fail to grasp the ramifications of the language he employs. This hypothesis can’t, however, reasonably be entertained with respect to general language such as equal protection of the laws. Indeed, to entertain it in thinking about any of the abstract provisions contained in the text is to condescend to the past by failing to allow for the care taken by the framing generation in preparing the text for adoption. Does this mean, then, McLaughlin should be rejected? Needless to say, a proponent of developmental constitutionalism would not accept this claim. (As we’ve just seen, a proponent of plan-as-draught originalism would of course reject McLaughlin for its failure to honor original understandings, but an argument along these lines discredits this kind of originalism altogether, to use the term McConnell employs when introducing his discussion of Brown.) But if McLaughlin is sound, how can Pace be sound as well? Developmental constitutionalism’s answer to this—an answer that seeks not only to come to terms with the before/after problem at the heart of interpretive reversals but also with the dynamics of historical change—is that each case reaches a conclusion that’s proper for its era. Pace and McLaughlin both offer plausible readings of the text. Neither one is incompatible with the Fourteenth Amendment’s language. The moral horizons on which they rely are profoundly different, however, for Pace speaks to the separate-but-equal norm that was widely accepted in the immediate aftermath of the Civil War and McLaughlin to an equality norm skeptical of racial classifications. Readings proper for their time, in other words, sometimes


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cease to be proper for later times, a point that’s missed when interpreters insinuate that they have announced a permanently valid conclusion about the proper application of the text—but a point that can’t be ignored given the frequency of interpretive reversals in modern constitutional law. There are three reasons why this era-specific account of constitutional interpretation is critical to the study of privacy rights. The first has to with the possibility of developmental supplementation. The Lawrence extension of the range of rights wouldn’t have been proper in the late nineteenth century or even the earlier twentieth century. These rights are legitimate only for the modern era. The eighteenth and nineteenth century ratifiers appear to have been willing to extend the text, but only in favor of rights they considered compatible with social order (hatwearing and sleeping in late, for instance), not rights to engage in conduct considered grossly licentious. The likelihood that the ratifiers would have had reservations about the Lawrence right is not an impediment to developmental supplementation, however, given the supermajority consensus that now exists concerning Lawrence’s conclusion. Moreover, once this consensus is considered in conjunction with the Lawrence right’s compatibility with the text’s commitment to individual freedom, one can justify the Article V bypass on which Lawrence rests. The Constitution is a multi-generation project. Decisions can be legitimated in light of a narrative of national change (provided of course they’re compatible with the terms contained in the text). A planas-draught conception of constitutionalism can’t accommodate this point whereas a plan-as-scheme version of it has no difficulty accepting a genealogy of rights-expansion. The second reason why it’s essential to think about privacy rights in terms of era-specific interpretation has to do with the distinction between moral reasoning and constitutional analysis. In assessing the morality of government regulations concerning racial classifications, same-sex relations, the juvenile death penalty, and a host of other issues, someone who accepts modern valuations is likely to lament past traditions. This moral stance has no necessary bearing on constitutional interpretation, though, for developmental reasoning focuses on practices constitutive of the nation (and compatible with the


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underlying commitments expressed in the text). In talking about constitutional interpretation, then, a proponent of developmentalism grants that it was constitutionally proper to impose a criminal punishment on Tony Pace—and constitutionally proper as well to punish people in earlier centuries when they were convicted of crimes involving same-sex sodomy. Exactly when a vestigial practice ceases to be constitutionally proper is a question that will be confronted in the chapter that deals with Lawrence’s interpretive reversal of Bowers v. Hardwick. What should be noted here is that the notion of eraspecific interpretive propriety makes it possible to account for the authoritative status of readings of the text informed by mental and moral horizons that have now ceased to have a hold on the national imagination. Judges didn’t dishonor the text during the years of the early republic by imposing the death penalty on juveniles or by punishing people who had same-sex relations. These practices are now unconstitutional but weren’t then, a point that remains valid despite the fact that pertinent provisions of the text haven’t been modified. The third feature of era-specific interpretation pertinent to privacy rights has to do with the experiential foundation of developmental constitutionalism. As noted earlier, it was widely assumed in the mid-nineteenth century that racial “amalgamation” would undermine America’s moral fiber. Similarly, it was taken for granted that same-sex sodomy had to be punished because of its morally corrupting effect. These misconceptions had to be challenged in practice before a court could responsibly reappraise the doctrine that had been announced to support them. Developmental constitutionalism offers a way to think about this process of reappraisal of the past through gradual experimentation. It doesn’t champion the abstract proposition that the range of rights should be extended to cover all activity not harmful to others. Rather, it takes the course of national experience as a necessary prerequisite to a decision to extend the range of rights. It’s in this sense that developmental constitutionalism is compatible with a framework attentive to “construction[s] put on the Constitution by the nation itself,” to draw once again on Madison’s arresting phrase.


Part II A Genealogy of Constitutional Privacy Rights


Chapter 4: From Property to Privacy: The Eighteenth Century Background

The word privacy appears only once in The Federalist. Although eighteenth century authors sometimes used it to refer to the seclusion essential to personal life,1 Publius employs it for a different purpose: to criticize secret deal-making by politicians. “If we compare the publicity which must necessarily attend the mode of appointment by the President,” Alexander Hamilton remarks in The Federalist 69, with the privacy in the mode of appointment by the governor of New York, cloistered in a secret apartment with at most four, and frequently with only two persons, . . . we cannot hesitate to pronounce that the power of the chief magistrate of this State, in the disposition of offices, must, in practice, be greatly superior to that of the Chief Magistrate of the Union.2

In this passage, privacy is synonymous with secrecy. It stands in contrast with transparency—with the openness that, Hamilton argues, the See, e.g., Samuel Johnson’s remark about “[t]hose who surround themselves in their domestic privacies.” The Idler No. 51, Saturday, April 7, 1759 140 (Cooke’s ed. nd). 2 The Federalist 69 (Alexander Hamilton), in The Federalist Papers 421 (Clinton Rossiter, ed., 1961). 1

© The Author(s) 2016 W.C. Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_5

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Constitution will require for the appointment of high officials. Needless to say, the privacy to which Hamilton refers has something in common with that of intimate relationships, for Hamilton speaks of a secret apartment and says that a small group is cloistered together there. But while these terms might be applied to family life, Hamilton uses them to refer to the operation of a cabal. Hamilton’s linkage of privacy to political secrecy may initially seem far-fetched. Today, privacy is typically employed to talk about personal matters. If considered from the standpoint of republican political theory, however, Hamilton’s usage makes eminent sense. Republicanism champions public-spiritedness; it seeks to promote the common good.3 It doesn’t necessarily scorn privacy and private life. But privacy isn’t a core republican value. Indeed, given its association with secrecy, an advocate of republican theory could readily invoke privacy, as Hamilton did, to emphasize an absence of concern with promoting the public interest. Hamilton’s Federalist 69 comment, when considered in light of the republican premises widely accepted at the time of the founding, thus captures well the reservations felt about privacy in the late eighteenth century. These reservations didn’t amount to hostility. Rather, the Constitution’s silence about privacy is best understood in terms of the framers’ commitment to republicanism as the organizing idea for discussion of the terms of political community. The framers’ republicanism had its roots in the ancient world. In selecting a pen name for The Federalist, Hamilton, Jay, and Madison settled on that of Publius Valerius Publicola, a hero of the early Roman republic celebrated in Livy’s History of Rome.4 By the late eighteenth century, the civic republicanism championed by Roman commentators and revived by Machiavelli and others during the Renaissance was being superseded by a rights-based, liberal version of the theory propounded by many commentators on both sides of the Atlantic. The founders’ liberal republicanism placed less emphasis on civic virtue than did that of Gordon Wood remarks that “[t]he sacrifice of individual interests to the greater good of the whole formed the essence of republicanism . . . ” (The Creation of the American Republic, 1776– 1787 53 (1969)). 4 See Douglass Adair, “Fame and the Founding Fathers,” in Trevor Colbourn, ed., Fame and the Founding Fathers 3 (1974). 3


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the ancients.5 Even liberal republicans, however, thought of devotion to the common welfare as the focal point of political life—and so were skeptical of celebrations of personal life. This is not to say that the founding generation showed no concern for the private side of the public/private divide. Rather, the key point to bear in mind is that property, not privacy, rights were deemed essential to the protection of personal life. A concern with property is manifest in the constitutional text. The Fifth Amendment, for instance, contains two clauses that protect property. One forbids the taking of private property for public use; the other prohibits deprivations of life, liberty, or property without due process of law. Neither clause is framed in absolute terms. Property may indeed be taken, but only according to procedures that constrain the state. It’s possible to discern in these references to property a commitment to the privacy of personal association, for property rights indirectly protect many kinds of seclusion and informational privacy while also protecting the exercise of autonomy in personal life. To press hard on this front, however, is to impose the presuppositions of a later era on an earlier one. Property rights insure each citizen’s independence from other citizens. Freedom from dependence on others, it can readily be granted, promotes self-realization. But the possibility of self-realization is a quintessentially modern concern, one that is merely intimated in eighteenth century political thought. During the course of this chapter and those that immediately follow, I examine the emergence of privacy norms following the Constitution’s adoption. My particular aim in this chapter is to retrieve the mental and moral horizon of the framing generation. Given the framers’ commitment to property rights, I suggest, one can easily identify a pattern of conceptual development, one in which property’s exclusionary practices gave rise to other exclusionary practices concerned with the conduct of intimate life, with the latter eventually recognized as valid even in settings where property rights are not at stake. It’s essential, though, to recognize that this pattern wasn’t anticipated at the outset. Indeed, privacy’s marginality in eighteenth century constitutional thought is discernible not merely in

5 For analysis of republicanism in early modern thought, see J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (1975).


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deliberations over the Bill of Rights but also in decisions reached at the state level, for no state constitution adopted in the late eighteenth century mentioned privacy in its list of rights. We thus can speak of a genealogy of constitutional privacy rights. Privacy’s roots in property-based exclusions on human conduct are relatively clear, and privacy claims began gradually to be made independently of the trespass rules essential to property rights. But this narrative is apparent only in retrospect; to the framers, privacy was not a matter worthy of constitutional protection. In examining founding-era thought, the challenge is to respect the past: to understand a mentality that had no special regard for privacy as a legal value but that nonetheless established principles that made it possible for privacy to grow out of commitments, both cultural and legal, made at the outset. This chapter responds to the challenge in two ways. First, it identifies republicanism’s presuppositions about the proper organization of political life—and so examines the past on its own terms. But second, it proposes a genealogy of privacy rights, one that traces the gradual rise of a category neglected at the outset. The chapter’s first section is an exercise in intellectual retrieval: it examines the republican premises that informed the eighteenth century founding and so pays no special heed to privacy rights. The second section considers a 1792 James Madison essay on property rights. That Madison was willing to reason in terms of an enlarged conception of property—one that includes freedom of speech and religious conscience, for example—underscores the extent to which eighteenth century liberal republicans were open to an expansive approach to personal freedom. That Madison didn’t include privacy in his enlarged version of property makes it clear, though, that privacy’s emergence was a latent possibility, not an actually anticipated trend, given the intellectual climate of the times.

The Republican Context of American Constitutionalism “The word republic means the public good,” Thomas Paine asserts in his Dissertation on Government, “in contradistinction to the despotic form, which makes the good of the sovereign, or of one man, the only


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object of government.”6 Given Paine’s definition, a dramatic contrast can be drawn between republican and monarchical government. In the former, liberty is collectively maintained. In the latter, liberty is granted at the sufferance of a single person. A king may perhaps promote his subjects’ well-being; he’s under no obligation to do so, however. Because republicanism’s commitment is to promotion of the public good, it’s unsurprising that some of its late eighteenth century proponents rejected entirely the notion of a legitimate private sphere. “Every man in a republic is public property,” Benjamin Rush asserted in 1787. “His time, his talents—his youth—his manhood—his old age—nay more, life all belong to his country.”7 Reasoning in the same vein, Samuel Adams remarked that a “citizen owes everything to the Commonwealth.”8 Even John Adams took a stand that bore a close resemblance to the one adopted by his cousin Samuel and by Rush. A “democratical despotism is a contradiction in terms,” Adams stated in Novanglus, his 1775 account of opposition to British rule in Massachusetts, for “[l]iberty can no more exist without virtue and independence than the body can live and move without a soul.”9 These fierce pronouncements about devotion to the commonweal should be read in context, for Rush and the Adamses led rich, complicated personal lives that often required them to pursue aims with no discernible connection to the roles they publicly played.10 Indeed, the relationship between Abigail and John Adams has fascinated later generations.11 This doesn’t mean of course that either John or Abigail used

6

Thomas Paine, 1 Dissertations on Government, the Affairs of the Bank, and Paper Money 9 (1817). Benjamin Rush, “Address to the People of the United States,” in Harry Gerhman Good, ed., Benjamin Rush and His Service to American Education 198, 205 (1918 [1787]). 8 Samuel Adams, “Letter to Caleb Davis,” in Harry Cushing, ed., 4 Writings of Samuel Adams 252, 255 (1904 [April 3, 1781]). 9 John Adams, “Novanglus V,” in Charles Francis Adams, ed., 4 Writings of John Adams 57, 79 (1851 [1774]). 10 For Rush, see Alyn Brodsky, Benjamin Rush: Patriot and Physician (2013); for Samuel Adams, see Ira Stoll, Samuel Adams: A Life (2008). 11 For a joint biography, see Joseph Ellis, First Family: Abigail and John Adams (1999). 7


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the term privacy in talking about their shared life. References to privacy lacked the positive valence they now have, so it’s essential not to assume that people like the Adamses would have welcomed application of the term to matters for which the label now seems appropriate. It’s only by coming to terms with this point that we can begin to understand why privacy was a constitutional afterthought. The novelist Henry Fielding, I point out in the next chapter, captured the positive value upper class women of the day were beginning to accord privacy and private life. This positive valuation didn’t translate into a constitutional principle, however. Indeed, privacy was considered a feminine concern, one that didn’t fit comfortably into a mental framework that emphasized the importance of sacrifice for the common good.12 In its strongest form, republicanism called on men (women were rarely mentioned as active participants in civic life) to renounce private interests altogether. Levi Hart, an enthusiastic supporter of the revolution put the point this way in a 1775 pamphlet: “[E]ach individual [in a republic] gives up all interest that is not consistent with the general good, . . . and every individual is to seek and find his happiness in the welfare of the whole.”13 Republicanism, on this reckoning, treats civic virtue as the factor essential to a polity’s stability. Machiavelli analyzed civic virtue along these lines in the course of reviving republican theory.14 Those who followed him—in particular, seventeenth and eighteenth century English writers in the Whig country-party tradition—also emphasized the importance of devotion to the commonweal.15 Steeped as they were in the ancients’ veneration of the polis, these exponents of civic virtue would have agreed with Hannah Arendt’s comment that, a “man who lived only a

12

For analysis of the assumption of classical and early modern political theorists that the private sphere is the appropriate one for women, see Susan Moller Okin, Women in Western Political Thought 281 (1979). 13 Levi Hart, Liberty Described and Recommended (1775), as quoted in Barry Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought 27 (1994). 14 Niccolo Machiavelli, Discourses on the First Decade of Titus Livius [c. 1517] 1.10-15 (Ninian Thomson, trans., 1883). 15 See, e.g., Caroline Robbins, The Eighteenth Century Commonwealthman (1959).


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private life . . . was not fully human.”16 Aristotle’s reference to the zoon politikon in other words, continued to resonate deeply in early modern discussions of republicanism.17 Even in the eighteenth century, the promotion of civic virtue continued to be an abiding concern. Montesquieu, for instance, states that “[v]irtue in a republic is a most simple thing: it is a love of the republic: it is a feeling and not a result of knowledge; the lowest man in the state, like the first, can have this feeling.”18 But members of the founding generation, while still committed to the republican principle that government institutions should be designed to promote the public interest, often expressed skepticism about the possibility of achieving political stability through reliance on the self-denying principles associated with civic virtue. They reasoned instead in terms of a milder version of republicanism, a liberal republicanism (to use modern terminology) that relies on institutional incentives rather than self-denial to insure political stability. Madison’s comments in The Federalist 10 are particularly important in this regard. In granting that factional strife might undermine political stability, Madison claims that the structure of the new federal government offers “a republican remedy for the diseases most incident to republican government.”19 Madison’s republicanism thus differs in important respects from that of Benjamin Rush and the Adamses. Anyone who espouses republican ideas is anti-monarchical; this is true by definition. But the degree of emphasis placed on civic virtue can vary substantially. To the extent that proponents of republicanism departed from the civic virtue model championed in the Renaissance, they were open to rights reasoning as well—that is, they were open to the possibility of legal guarantees that

16

Hannah Arendt, The Human Condition 35 (1959). For Aristotle’s comment on the zoon politikon, see his Politics 1253a; for discussion of its influence on early modern civic republicanism, see Pocock, The Machiavellian Moment, supra note 5, at 550 (citing Arendt’s analysis of ancient political theory). 18 Charles de Secondat, Baron de Montesquieu, The Spirit of the Laws [1748] V,2 (Anne Cohler et al., trans. 1989). 19 James Madison, The Federalist 10 in supra note 2, at 84. For Hamilton, see The Federalist 9 in id. 17


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provide protection against majority domination. It’s in this respect that Madison can be classified as a liberal, as distinguished from a civic, republican. These two categories—liberal and civic republicanism— cannot be found in eighteenth century discourse. They’re heuristics employed by modern scholars to make sense of a gradual transition that unfolded in anti-monarchical conceptions of liberty.20 Because the categories just noted are the product of modern scholarly efforts to account for a change that wasn’t the subject of commentary at the time, it’s essential to proceed cautiously when talking about the transition that occurred. Nonetheless, the distinction just noted must be taken seriously, for otherwise one couldn’t make sense of the importance accorded individual rights by those who ratified the Constitution. Perhaps the best way to weave rights into the discussion of republicanism is to note how the text’s specifically enumerated rights can contribute to the stability of political institutions. Protection of property rights is, arguably, the most important component of liberal republicanism. In a pamphlet that defended the proposals made by the Philadelphia Convention, Noah Webster argued that each property holder’s devotion to his fee-simple holdings in real estate would overcome shortcomings in devotion to the commonweal. “Virtue, patriotism, or love of country,” Webster wrote, never was and never will, till mens’ nature are changed, be a fixed, permanent principle and support of government. But in an agricultural country, a general possession of land in fee simple may be rendered perpetual, and the inequalities introduced by commerce are too fluctuating to endanger government. An equality of property, with a necessity of alienation, constantly operating to destroy combinations of powerful families, is the very soul of a republic.21

20

For analysis of these heuristics, see Joyce Appleby, Liberalism and Republicanism in the Historical Imagination (1992). 21 [Noah Webster], “An Examination into the Leading Principles of the Federal Constitution Proposed by the Late Convention Held at Philadelphia”, in Paul Leicester Ford, ed., Pamphlets on the Constitution of the United States 29, 59 (1888 [1788]).


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Webster published his pamphlet prior to adoption of the Bill of Rights. That document protects individual liberty, but it does so by singling out rights that sustain public institutions. Many of its protections further the public exercise of republican liberty: the free speech, press, and assembly clauses are understandable in light of this concern, as is the Second Amendment militia clause, and the Fifth and Sixth Amendment jury clauses. Even rights that address private life—the First Amendment free exercise clause, for instance—were thought to offer indirect support for republican institutions, for as Joseph Story put it “piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice.”22 On this analysis, the political sociology that informs the Bill of Rights is straightforward: the stability of a polity, the framers assumed, is best maintained by Godfearing men who hold property in fee-simple.23 For advocates of republicanism, in other words, private life may not be intrinsically valuable. Nonetheless, it’s instrumentally valuable since citizens who organize their personal affairs virtuously are more likely to contribute to the public welfare than those who are short of personal virtue. In employing a contemporary perspective, someone might rearrange the Bill of Rights to emphasize its protection of a private sphere of conduct. The First Amendment non-establishment clause would figure prominently in this scrambled version of rights, as would its free exercise and free speech clauses. The Second Amendment could then be classified as a bulwark for armed self-defense. The Third and Fourth Amendments would appear in this list given their solicitude for residential privacy. And the Fifth Amendment’s reference to private property could be included in this list as well. Though plausible as an exercise in rethinking the Bill of Rights, this scrambled version of the text (which bears some resemblance to the penumbras-of-privacy analysis Justice Douglas employs in Griswold v. 22

Joseph Story, 3 Commentaries on the Constitution of the United States 698–9 (1833). Akhil Amar argues that a republican conception of liberty informs the Bill of Rights: “[I]n the 1780s, liberty,” he maintains, “was still centrally understood as public liberty of democratic selfgovernment—majoritarian liberty rather than liberty against popular majorities” (The Bill of Rights: Creation and Reconstruction 159 (1998)).

23


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Connecticut24) isn’t faithful to the republican perspective entertained by the founders. Republican citizens, the framers expected (or at least hoped), would assemble at their county seats to discuss public affairs, serve on grand and petit juries, and hold guns not merely because they wanted to hunt for game but also because they were prepared to contribute to the common defence. On this account, liberal republicanism offers only a different route to political stability than its civic counterpart.

Madison’s Expansive Conception of Property As noted, the Fifth Amendment protects private property against public takings (unless just compensation is provided). Although it’s intriguing that the text relies on this juxtaposition of public and private, a modern reader must approach the provision’s dichotomy cautiously. Today, the public/private distinction is applied in a wide variety of settings. In contrast, at the time of the text’s adoption, it was relatively circumscribed. It could be applied to government initiatives that affect individuals (in which case, civic activity is defined as a component of the public sphere while economic relations are treated as a component of the private sphere). It could also be applied to physical space not occupied by the government, as when commentators distinguished between behavior in public and private places.25 The eighteenth century public/private distinction doesn’t extend far beyond these elementary binaries, however. In particular, it doesn’t hold out the prospect of robust protection for autonomous decisionmaking undertaken through reliance on secular values. There is, however, a different way to think about protection of what today would be called the private sphere, for one can set the term privacy to one side and consider social life through an enlarged 24

Griswold v. Connecticut, 381 U.S. 479 (1965), discussed infra in Chapter 9. Noah Webster’s entries for the adjective public are compatible with the points just made. His first entry is: “Pertaining to a nation, state, or community. . . . ” His second: “Common to many, current or circulated among people of all classes; general, as public report, public scandal.” His third: “Open, notorious, exposed . . . ” (Webstersdictionary1828.com/public).

25


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conception of property. Madison, in particular, drew on an expansive version of property to suggest the possibility of a substantial domain of individual freedom. In its “particular application,” Madison writes in an essay he published a year after ratification of the Bill of Rights, property refers to “that dominion which one man claims and exercises over external things of the world, in exclusion of every other individual.” Madison is quoting here William Blackstone’s definition of property.26 Madison then adds that in “its larger and juster meaning,” the term embraces everything to which a man may attach a value and have a right, and which leaves everyone to like advantage. In the former sense, a man’s land, or merchandise, or money is called his property. In the latter sense, a man has a property in his opinions and the free communication of them. He has a property of particular value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties, and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may equally be said to have a property in his rights.27

In this last sentence, Madison draws directly on Locke, for the Second Treatise uses property to refer not merely to tangible items but also to each person’s “life, liberty, and estate.”28 But Madison draws on sources other than the Second Treatise. His “larger and juster meaning” of property is indebted to Blackstone’s remark that “[t]here is nothing which so generally strikes the imagination, and engages the affection of mankind as the right of property.”29 And of course, Madison’s expansive conception of property includes not only rights enumerated in the Constitution (speech and religious freedom rights, for instance) but also some not enumerated (“free use of faculties,” for instance, and “free choice of the objects on which to employ them”). As an exercise 26

2 William Blackstone, Commentaries on the Laws of England 2 (facsimile ed. 1979 [1765–69]). James Madison, “Property,” The National Gazette, March 29, 1792, in 6 The Writings of James Madison 101–2 (Gaillard Hunt, ed., 1906). 27


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in synthesis, then, Madison’s 1792 comments capture the liberal strain of republicanism that informed the founding era. If our goal is to understand the specific understandings the framers brought to the Bill of Rights (and that appear to have been at work in Sedgwick’s comment on hat-wearing), Madison’s expansive conception of property serves a plausible platform for doing so. Does this mean that Madison’s enlarged version of property includes privacy rights? If we address this question at a sufficiently high level of generality, it’s reasonable to say yes, for Madison probably would have included the privacy benefits generated by the Third and Fourth Amendments in his inventory of expanded property rights. It’s essential to emphasize, though, that Madison didn’t refer to privacy when he had a chance to move beyond property in its “particular application.” Even more important, it’s essential not to impose the mental framework of a later era on Madison’s comments. If one were to ask, for instance, whether Madison would have said that a wife has a property right (enlarged sense) against an intrusion into her boudoir by a husband who has a right in fee-simple in their shared home (property in the narrow sense), the answer would have to be that this is a historically misconceived question—that it presupposes a female entitlement to personal space that was only just becoming rooted in eighteenth century social life and that therefore hadn’t been considered in a common law, much less a constitutional, context. If one were to ask whether Madison would have said that two men, having property rights (enlarged sense) in their bodies, were entitled to engage in consensual sodomy in a home one of them owned in fee-simple (property in the narrow sense), the answer would have to be that this question is wholly anachronistic—that no one even imagined such a claim to constitutional protection at the time. This said, it’s clear that Madison’s analysis holds out the prospect of a gradual extension of social norms from property to privacy. It does so because privacy, like property, operates by means of exclusionary mechanisms. As noted, Blackstone states that the term property

28 29

John Locke, Second Treatise on Government, Sect. 67 (1690). 1 Blackstone, supra note 26, at 2.


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refers to “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.” With his attention fixed on property, Blackstone disregarded the parallel with privacy. Needless to say, because privacy claims can often be asserted by proxy through property rights, it’s essential to realize that eighteenth century commentators who expressed respect for rights of real property also showed respect for privacy interests. Privacy claims don’t invariably coincide with those made on behalf of property, of course: this is the significance of the question just posed about a married woman’s interest in excluding her husband from her boudoir. But to note this is merely to suggest that privacy rights can be asserted in the absence of property rights; it isn’t to reject the role exclusion has played in promoting privacy rights. On this important point, the logic of privacy and property coincides. In building on this, we can discern the path by which privacy’s exclusionary conventions came to matter on their own. We can, in other words, identify a genealogy of constitutional privacy rights in which property’s exclusionary conventions began to be considered inadequate for protecting interests in seclusion and informational control. Because privacy rights often rely on exclusionary practices, we can characterize the concern about privacy that emerged in the nineteenth century and that was given substantial independent weight in twentieth century judicial opinions as a further stage in the development of constitutional liberalism, one in which individualism came to be prized for its expressive as well as its instrumental value. As with so many features of evolving traditions, this was a genuinely novel development with roots in the past. It’s possible now to construct a narrative that makes sense of the affinities between property and privacy—and that establishes the plausibility of a genealogy of privacy rights. But genealogical narratives are retrospective. That Madison didn’t mention privacy in his inventory of enlarged property rights underscores how unexpected the transition was, for Madison was among the most astute observers of his day. The development of constitutional protection for privacy rights, we can thus say, was an unplanned consequence of a loosely-textured eighteenth century plan.


Chapter 5: The Emergence of Privacy Norms in Nineteenth Century America

Although the line of descent is clear, it’s best to classify privacy as the step-, and not the full, child of property. This is because privacy conventions emerged from property rights. That is, during the eighteenth and nineteenth centuries privacy claims were enforced only by social understandings about proper behavior. In contrast, property claims were backed by the force of law. Here, as before, it’s essential to add the caveat that many privacy conventions actually were enforced through property rights. The law of trespass protected residential privacy; tort rules bearing on assault and battery shielded individuals against unwanted physical intrusions; criminal prohibitions on theft offered security against examination of the informational traces of personal life. But laws concerned with property extended beyond the domain of privacy. Furthermore, property law protection didn’t necessarily cover matters that had come to be understood as private matters. It’s for this reason that one must focus on conventions rather than rights when talking about the rise of privacy. As we will see in later chapters, the mid-twentieth century Court drew on the conventions of everyday life to identify the content of constitutional rights. In examining privacy conventions, we thus consider what the Court came to treat as a source © The Author(s) 2016 W.C. Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_6

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of constitutional law. We consider extratextual norms, in other words— norms that, having become entrenched in social life, were eventually incorporated into binding doctrine. In particular, two kinds of conventions matter here: one having to do with private facts, the other with privacy signals. Taken together, these categories define the embryonic system of privacy conventions already discernible in Anglo-American society at the time the Constitution was written. Needless to say, privacy conventions weren’t deemed critical components of individual freedom either by common law judges or by the Constitution’s ratifiers. They were features of the home and hearth, not of political life. They thus could be honored in the course of everyday life without provoking concern about their compatibility with republican principles of government. Only if privacy had been viewed as a key component of the rights that can be asserted against legal authority would its awkward connection with republicanism have been noted, but by the time (i.e., the mid-twentieth century) privacy actually came to be understood as essential to personal freedom its tension with the communitarian core of republicanism was overlooked since the collectivist version of liberty that informed the founding played a less substantial role than it once had in interpreting the text. This chapter is thus concerned not with legal commentary but with remarks, found in novels and etiquette books, that define proper behavior in everyday life. Renaissance and early modern authors of etiquette manuals often issued law-like orders to their readers. For example, one of Erasmus’s many books on the subject commands: “When you undress, when you get up, be mindful of modesty, and take care not to expose to the eyes of others anything that morality and nature require to be concealed.”1 Similarly, novelists had their characters issue peremptory commands concerning proper behavior. In neither case is it correct to say that the person employing an imperative tone of voice poses as a legislator of privacy norms. On the contrary, the speakers pose as reporters—one could even say oracles—of the rules they seek to enforce.

1

Erasmsus, De Civilitate morum puerilium, Chapter 13, as quoted in Norbert Elias, 1 The Civilizing Process: A History of Manners 161 (Edmund Jephcott trans. 1969).


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They appeal to already-existing standards of conduct and insist on adherence to these by the wayward people they’re addressing. It’s by grasping the distinction between rule-promulgation and reports on rules that we can begin to understand the status of privacy conventions (then and now). Although the norms we’re about to consider were deemed authoritative, they weren’t attributed to a legislative or judicial source. Moreover, the norms at stake were enforced by censure, not by formal sanctions. We can thus speak of an unlegislated social order—a structurally coherent body of rules with no specific promulgator whose enforcement hinges in part on fear of censure, in part on expectations of reciprocal benefit. To use Robert Ellickson’s term, this is a case of informal order.2 Informal-order settings are those in which a coherent body of rules can be discerned in the behavior of numerous individuals, with the coherence not attributable to planning by any one person or a group of persons. In looking forward to the discussion of constitutional privacy rights, we can say that these rights are distinctive because a coherent body of unplanned rules was incorporated into a plan that initially didn’t make allowance for them.

The Structure of Privacy Conventions I: Rules for Objects Deemed Intrinsically Private In the modern world, privacy is understood primarily in terms of claims that can be made against others—claims about the restraint outsiders must exercise vis a vis insiders and thus claims that can be formulated in terms of the “right to be let alone,” to draw on Brandeis’s phrase. But even today, privacy is also understood in terms of a reverse obligation: it’s understood not merely in terms of an outsider obligation of restraint toward insiders but also in terms of an insider obligation to honor minimal expectations of propriety when venturing into public places. These minimal expectations include an obligation not to expose one’s genitals to unwilling viewers, a further obligation not to urinate or 2

Robert Ellickson, The Household: Informal Order Around the Hearth (2008).


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defecate in public, and yet another to refrain from engaging in sex acts in public. This list can be expanded. Indeed, it’s arguable that the list of unacceptable acts of self-exposure is longer today than it was 200 years ago. Even the short list just noted was too long for the Middle Ages, however. Clothing was indeed a matter of everyday convention in the Middle Ages (in The Monk’s Tale, for instance, Chaucer states that someone wore a mantle “over his hipes . . . for no man shold seen his pryutee . . . ”3). On the other hand, urinating and defecating in public remained social options,4 and sex acts could properly be undertaken in the presence of those well-acquainted with a couple (as, for instance, was the custom of having witnesses present for the first night of marriage5). From the standpoint of historical development, then, the most important privacy convention worth noting has to do with the concept of private facts—that is, with a shame threshold that defined the body as an intrinsically private object.6 In charting the transformation of conventions pertaining to private facts, Norbert Elias speaks of a civilizing process that occurred between the fifteenth and eighteenth centuries in Europe. The shame threshold was raised substantially during this time, Elias contends, thus making it virtually unacceptable by the end of the eighteenth century for anyone to relieve him- or herself in the presence of others and also problematic for a couple to have sex in the presence of others absent severe space

3

Geoffrey Chaucer, Monk’s Tale B3905 (c. 1390). For a genre painting from the seventeenth century that depicts a man defecating while other members of his village—men, women, and children—were butchering a pig, see Isack van Ostade, Peasants Outside a Farmhouse Butchering Pork (1641), available at www.nortonsimon. org/collections/browse. 5 For discussion of observation by medieval parents of the children’s sexual acts as newlyweds, see Linda Mitchell, Family Life in the Middle Ages 129 (2007). 6 For Elias’s comments on the shame threshold, see supra, note 1, at 134–45. For an influential account of the significance of private facts in modern tort law, see William Prosser, “Privacy,” 48 California Law Review 383, 389 (1960), discussing “[p]ublic disclosure of embarrassing private facts about the plaintiff.” 4


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limitations.7 Members of the upper classes took the lead in altering privacy conventions, something that should occasion no surprise given their greater access to chamber pots and bedrooms with doors. This said, though, there was a curious inversion at the top of the social ladder, for royalty was more lax about bodily privacy. This latter point, a special feature of monarchical culture with no particular relevance to America’s republican society, should be briefly discussed. After that, we should turn to the more general movement toward rethinking the domain of private facts that Elias places under the heading of the civilizing process. It was because of the very public nature of kingship that members of Europe’s royal families exempted from themselves from the privacy conventions at work in early modern Europe. The levee, a ceremony performed by high-ranking aristocrats as well as royalty, offered those at the top of the social pyramid a ritualistic way to affirm their superiority through limited exposure of their bodies. “In courtly society shame on exposing certain parts is, in keeping with the structure of this society, still largely restricted within estate or hierarchical limits,” Elias remarks. “Exposure in the presence of inferiors, for example by the king in the presence of a minister, is placed under no very strict prohibition, any more than the exposure of a man before the socially weaker and lowerranking woman was in an earlier phase.”8 This kind of convention did not have a strong hold on seventeenth or eighteenth century America. Given the republican character of American life, officials adhered to the norms of bodily modesty adopted gradually by the European upper classes from the fifteenth century onward. Elias’s characterization of the effect of the civilizing process in Europe on sexual practices is thus particularly relevant to the United States. Shame about the body was the standard attitude of the English colonists who came to America. This isn’t to say that public nudity was unknown in public places. A Boston newspaper reported in 1757, for instance, that “[g]reat complaint was made of many Persons Washing themselves in Publick . . . to

Elias quotes etiquette manuals from the fifteenth to the eighteenth century to chart the rising shame threshold. Id. 8 Norbert Elias, 2 The Civilizing Process: Power and Civility 295 (Edmund Jephcott, trans. 1969). 7


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the Great Reproach of Modesty and good Manners.”9 But the very fact that people complained about nude bathing in the Charles River speaks to a change in conventions, a change only gradually reflected in everyday practice. Given this change, we can say with confidence that a norm had come to be accepted in late eighteenth century America disfavoring public nudity and excretion. The body was indeed viewed as something private. People were expected to exercise modesty—and outsiders were expected to regulate their conduct so as not to encounter nakedness except in circumstances when they were unmistakably permitted to do so.10 Was the notion of a private fact limited to the body as far as colonial America was concerned? Comments by New England authorities suggest the possibility of a broader scope for the category. Arguing against disclosure of investigations into the characteristics of candidates for church membership, for instance, the Reverend Robert Fiske of Boston stated in 1644 that this would undermine “the good name of the party” and added the following: “the things that be private [should] be kept private.”11 Reasoning in a similar vein, the authors of a 1660 Massachusetts regulation required victims of theft to submit reports, but they qualified this requirement with the following: “except the Fact be private, or committed by some member of his own family.”12 Each of these comments indicates that colonists reasoned in terms of a relatively broad version of private facts, one that took bodily privacy as paradigmatic but that radiated out to other matters as well. On this reckoning, the notion of the intrinsically private occupies a middle ground between convention and natural obligation. From the standpoint of the colonists, the body’s status as a private object was not viewed as private by virtue of social convention but was deemed naturally private. In light of Elias’s research, of course, this notion of a 9

As quoted in David Flaherty, Privacy in Colonial New England 82 (1972). Flaherty concludes that “[b]y the seventeenth century, in the English-speaking world, privacy had become an integral part of the value system that included freedom, material comfort, achievement, success, and the work ethic . . . ” (Id. 242). 11 As quoted in id. 145. 12 As quoted in id. 210–11. 10


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natural obligation to respect bodily privacy has to be deemed problematic, for it’s clear that three or four centuries earlier different conventions applied to many bodily functions. It’s best, then, to speak of a socially generated conviction about naturalness, a conviction that emerged sufficiently slowly that those entertaining it could ignore the evolutionary character of the norms by which they lived.

The Structure of Privacy Conventions II: Insider Signals to Outsiders The other privacy conventions that emerged in early modern Europe (and that were adopted in colonial America) are understandable not in terms of what was viewed as intrinsically private but instead in terms of signals used to indicate that outsiders should exercise restraint concerning an object or activity. Needless to say, an overlap is possible here. In closing the door to an outhouse on entering it, someone signaled an interest in privacy, with the result that what was considered intrinsically private was also shielded by means of a signal understood to convey an interest in privacy. When something wasn’t considered intrinsically private, though, signals could be used to shield it from public access. If, for example, a lady wore gloves at all times while indoors, the gloves could be taken as a signal conveying an interest in privacy. They would have functioned as a shield for something (a lady’s hands) not deemed intrinsically private but for which restraint was nonetheless required. On this analysis, the system of privacy conventions that emerged in the early modern period had two components. Restraint was required of insiders (don’t expose your private parts) as well as outsiders (show respect for what’s considered intrinsically private and also show respect for what people signal they want to keep private). This latter type of privacy can be said to rely on shields—on barriers people employ to limit access to objects and activities not deemed intrinsically private. Shield-privacy operates by means of barriers that are both physical and symbolic. A closed door and a sealed envelope serve as physical impediments against intrusion. These barriers can be


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penetrated, though: it’s relatively easy, after all, to open an unlocked door or break open a sealed envelope. The real significance of these barriers, then, is not to be found in their status as measures that frustrate physical access but in what they communicate to outsiders—in the signals they send, by virtue of social conventions, about an interest in excluding others. These conventions are effective only if outsiders accept their excluded status vis-à-vis insiders. They operate, in other words, on the basis of a general understanding (which has never been legislated but which has become entrenched over time) that respect for individual dignity through the use of signals indicating an interest in exclusion is sufficiently important that outsiders must exercise restraint on encountering such signals. Because privacy conventions involve concealment, it’s hardly surprising that at one time secrecy was treated as a synonym for privacy. Samuel Johnson, for instance, makes secrecy his first entry for privacy.13 Four years after publishing his dictionary, however, Johnson used privacy in a different, more positive way, referring in one of his Idler essays to “[t]hose who surround them in their domestic privacies.”14 The difference between Johnson’s dictionary definition and his essayistic usage is revealing. Secrecy suggests practices that at best are morally neutral—practices that aren’t thought to generate an obligation of outsider restraint. A reference to domestic privacies, on the other hand, suggests something socially worthwhile. It too relies on exclusion, but it carries the further connotation that what’s being excluded will not be deleterious to social life. Johnson’s contemporaries also accorded privacy a positive value when talking about domestic life. For example, Henry Fielding has one of his characters in Tom Jones rely on the term privacy to emphasize the exclusionary character of the confidences women exchange with one another. In the passage below, Fielding has Mrs. Western, a maiden aunt (the Mrs. is honorific), reproach her brother, Squire Western, for bursting in on her

His entries are: “1. State of being secret; secrecy; 2. Retirement, retreat.” 2 Samuel Johnson, Dictionary of the English Language 416 (2nd ed. 1755). 14 Samuel Johnson, The Idler No. 51, Saturday, April 7, 1759 140 (Cooke’s ed., nd). 13


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in her own drawing-room as she discusses matrimonial issues with her niece, Sophia Western, the squire’s daughter. Mrs. Western and her brother both want Sophia to marry Mr. Blifil, a bachelor from a nearby estate. In this instance, though, Mrs. Western’s insistence on privacy conventions trumps her concern about dynastic advancement: Mrs. Western was reading a lecture on prudence and matrimonial politics to her niece, when her brother and Mr. Blifil broke in with less ceremony than the laws of visiting require. Sophia no sooner saw Blifil, than she turned pale, and almost lost the use of all her faculties; but her aunt on the contrary waxed red, and having all her faculties at her command, began to exert her tongue on the squire. “Brother,” said she, “I am astonished at your behaviour, will you never learn any regard for decorum? Will you still look upon every apartment as your own, or as belonging to one of your country tenants? Do you think yourself at liberty to invade the privacies of women of condition, without the least decency or notice?”—“Why, what a pox is the matter now!” quoth the squire, “one would think I had caught you at—” “None of your brutality, sir, I beseech you,” answered she. “You have surprised my poor niece so, that she can hardly support herself.—Go, my dear, retire, and endeavor to recruit your spirits; for I see you have occasion.” At which words, Sophia, who never received a more welcome command, hastily withdrew.15

The conventions of privacy signaling inform this entire passage, for while it offers an account of one of Squire Western’s many efforts to bring Blifil and his daughter together, its specific concern is the privacies of women of condition. In particular, four features of privacy signaling warrant consideration here. The first has to do with a privacy claim that can be made without regard to property rights. In “br[eaking] in with less ceremony than the laws of visiting require,” Western trespassed on his sister’s property. Trespass, however, isn’t the transgression Mrs. Western emphasizes. Her brother was guilty of something more serious: he had disregarded “the laws of visiting” as they protect “women of

15

Henry Fielding, The History of Tom Jones, A Foundling Book 16, Chapter 8 (1749).


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condition.” Mrs. Western asserts an interest in privacy, then, despite the fact that she could have spoken of a property interest. Second, the conventions at stake are understandable in terms of outsider obligations to insiders. Needless to say, Fielding doesn’t employ the terms insider and outsider. In using them, one thus imposes contemporary categories on eighteenth century etiquette. But the terminology is appropriate in this context, for it emphasizes the fluidity of social roles when privacy is at stake. From the standpoint of the larger world, a brother and sister aren’t outsiders to one another. In this scene, though, Mrs. Western insists on her insider status and so rebukes her brother for failing to honor a key convention. The “laws” at stake impose an obligation of restraint on outsiders once insiders take the modest precaution of retiring to a drawing room. In bursting in on his sister, Squire Western disregards this obligation. Mrs. Western doesn’t claim to have established “the laws of visiting.” Rather, she invokes them against her brother, who responds to her indignation with a combination of rage and shame. The third factor to note here has to do with the function of shieldprivacy. Sophia and Mrs. Western are discussing “prudence” and “matrimonial politics,” subjects of intimate life. Someone outside the drawing room in which they were seated was in no position to know what they’re talking about, but a closed door, a standard privacy signal, was already understood to convey an interest in keeping others at a distance (and so to accept outsider ignorance). Had Mrs. Western taken into account her brother’s ignorance of what was transpiring in the drawing room, she could have said: “Brother, do you think yourself at liberty to invade the privacies of women of condition and so to upset what might be intimate discussions?” But had she done so, she would have attributed a weaker authority to privacy conventions than they were already thought to possess. That is, these conventions imposed on an outsider an obligation of restraint despite the fact that the outsider didn’t know what an insider was doing behind a shield. Moreover, given privacy conventions, the nature of the shield employed—we’ve used as our examples a closed door and a sealed envelope—was sufficient to indicate that restraint was in order because what was concealed might enhance individual dignity. It’s in this respect that privacy had come to differ from secrecy. Each depends on exclusion, but an outsider could tell in the ex ante that the


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exclusionary measures underway might have something to do with personal development. The positive term privacy was thus appropriate when Mrs. Western upbraided her brother. Had Mrs. Western instead referred to secrecy, she would have diminished the moral value of the signal she’d sent by withdrawing to her parlor. The last factor of importance here is related to the gender of the key protagonists. Needless to say, there’s a rural/urban divide discernible in Mrs. Western’s exchange with her brother. But the salient division has to do with gender: with Mrs. Western’s authoritative invocation of privacy conventions and her brother’s apparent ignorance of them. Sexual innuendo even enters the discussion, but only to underscore the gender gap that informs the entire conversation: “one would think I had caught you at,” the Squire says, to which his sister replies “None of your brutality, sir, I beseech you. . . . ” Once this comment is considered, we can say that their testy exchange, while reliant in part on a city/country division, hinges on a woman’s claim to superior knowledge of the privacy conventions of the day. Men weren’t necessarily indifferent to these emergent conventions, but women were often the conventions’ enforcers. Tom Jones is concerned with upper class behavior in Great Britain, so it might be objected that extended analysis of one of its passages has little relevance to eighteenth century America. It can readily be granted that no single American source of the time is as pertinent to privacy conventions as the one in Tom Jones just examined. There are, however, numerous comments that indicate a growing American acceptance of privacy conventions. A particularly revealing one has to do with the establishment of postal legislation. Writing to Gouverneur Morris in March 1778, John Jay expressed concern about the privacy of sealed envelopes. “To the disgrace of Human Nature, it has become a common Practice to betray the Confidence we repose in each other, either by opening Letters, or not sending them to the Persons to whom they are directed,” Jay states. “I have seen so many instances of such Behaviour that I am determined to use more Caution hereafter.”16

16

John Jay to Gouverneur Morris, March 11, 1778, as quoted in Flaherty, supra note 7, at 123–4.


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Jay’s remark relies on the same kind of indignation Mrs. Western expresses about disregard for privacy conventions. In this instance, though, Jay’s comment is significant not merely because it confirms that Americans were also concerned about privacy norms but also because it was a harbinger of legal change to come. In 1782, Congress passed the National Postal Act, which (among other things) prohibited postmasters and other employees of the newly created organization from opening letters absent a warrant issued by the President of the Congress.17 It’s because letters can’t be classified as the property of the addresser or the addressee while in transit through the mail that legislation was adopted to protect the conventional understanding concerning the privacy of their contents. Jay’s 1778 comments thus prefigured statutory codification of the conventions of communicative privacy. No other legislative initiative to protect privacy interests was undertaken in late eighteenth century America. The 1782 legislation thus stands out as an early, though solitary, indication of the importance already accorded shield-privacy.

Privacy Conventions in Nineteenth Century America Nineteenth century etiquette books codified norms concerning private facts and privacy signals. Robert de Valcourt, author of the Illustrated Manners Book, a manual that went through numerous editions during the century,18 formalized strictures of the kind Mrs. Western directed at her brother by speaking of a “right of privacy” applicable not only in social but also family settings. Valcourt never attempted to disaggregate his privacy right (he was writing an etiquette manual, after all), but it’s 17

See id. 127. The citations here are to the 1855 edition of Valcourt’s Illustrated Manners Book, which was reissued in 1865 and then appeared in 1866 under a new title, The Illustrated Manners Book: A Manual of Good Behavior and Polite Accomplishments. For an account of the different editions of Valcourt’s book, see Elizabeth Aldrich, From the Ballroom to Hell: Grace and Folly in Nineteenth Century Dance 203 (1991). 18


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reasonable on examining it a century and a half later to say that he used the term on some occasions to refer to seclusion, on others to refer to informational control, and on others to refer to decisional authority within personal life. In examining these different facets of privacy, it’s essential to bear in mind the long-term nature of the trends that brought them to the fore, for while consciousness of the right to privacy crystallized in the nineteenth century (with the result that Valcourt treats it as a consideration pertinent to all facets of everyday life), the trends that made this possible originated in an earlier time and persisted long afterwards. The Growing Importance of Internal Seclusion Nineteenth century etiquette manuals take for granted the possibility that space within a home can, and will, be arranged in such a way as to promote internal seclusion. In this sense, they presuppose something that had gradually become a feature of domestic life: the expansion of internal living space. “Privacy demands more rooms,” W.G. Hoskins, a historian of early modern England remarks, so we get in the Elizabethan yeoman’s house the kitchen, the buttery, the best parlour, two or three separate bedrooms, the servants’ chamber, besides the truncated medieval hall now shorn of many of its functions; and to achieve all this in a house of moderate size we have two floors instead of one.19

The single most important innovation in internal seclusion that came after the Elizabethan era is attributable to a technological change: the adoption of indoor plumbing in upper class homes. Flush toilets were first installed in English country houses in the late seventeenth century. The Duke and Duchess of Devonshire, for instance, commissioned one for Chatsworth, their palatial residence in Derbyshire.20 In America, reliance on bathroom fixtures—not only toilets but also baths and washbasins—didn’t become common until the nineteenth century. Boston’s Tremont Hotel, constructed in 1829, featured bathtubs made

19 20

W.G. Hoskins, “The Rebuilding of Rural England,” Past and Present 44, 50 (November 1953). Mark Girouard, Life in the English Country House 254 (1978).


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of copper or tin, with a side-arm gas furnace to keep the water warm.21 Even the wealthy only gradually made use of indoor plumbing. In recollecting his childhood, for instance, Henry Adams recalled that his grandfather, John Quincy Adams, installed a bathroom in his Boston home during the 1840s, but Adams noted that the family’s country house in Quincy had no such amenity prior to the Civil War.22 It would be hard to exaggerate the importance of indoor plumbing’s contribution to the growing prestige of privacy in the nineteenth century world. Prior to the advent of flush toilets, people depended on chamber pots for their excretions. Members of the lower classes emptied chamber pots on their own. Members of the upper classes depended on servants to do so; to use a servant for this purpose, though, meant that the nature of an excretion produced was potentially a matter of common knowledge throughout a household.23 Technological change thus made it possible for people not only to seclude themselves when urinating and defecating but also to preserve informational control over what they produced. Moreover, with indoor plumbing bathing could also be undertaken in seclusion. Although many people continued to rely on servants even after bathtubs arrived, what had previously been a necessity became an option of everyday life. The result was a profound psychological change, a change attributable to alterations in the material conditions of life but registered in a sense of independence from others. Accompanying this trend was one in which interior space began to be arranged so as to make it possible to move about a house while minimizing contact with others. Architectural innovations promoting internal seclusion had been underway for centuries. Corridors, for instance, are found in fifteenth century English homes. Back staircases were included in seventeenth century mansions.24 This said, though, the etiquette that demanded respect for internal seclusion was refined during the nineteenth century.

See “The History of Plumbing in America,” available at www.theplumber.com. Henry Adams, The History of Henry Adams 10 (1918). 23 See Dave Praeger, Poop Culture: How America Is Shaped by Its Grossest Product 32–5 (2007). 24 See Raffaella Sarti and Alan Cameron, Europe and Material Culture, 1500–1800 129–30 (2002). 21 22


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“Always knock at the door of a private room before entering, and never pry into private letters or other property that may be in your way,” James Kernan states in Perfect Etiquette, Or, How to Behave in Society: A Complete Manual for Ladies and Gentlemen, published in 1877. “To do so is neither respectful or polite.”25 Because Kernan states a norm of intra-family privacy, there is no way to determine how often it was respected. It’s telling, nonetheless, that Mrs. Western’s rebuke of her brother relies on the very point Kernan makes in emphasizing the importance of internal seclusion. Needless to say, the vast majority of American families lived in quarters that afforded little or no opportunity for interior privacy. Indoor plumbing was unknown in most rural homes. Moreover, the living quarters inhabited by the urban and rural poor relied on a modest division of space—and, in any event, even when children had bedrooms of their own it was common for them to share beds.26 But important as these qualifications are, they don’t undercut the more general point made here about the rising prestige of privacy, for nineteenth century practice establishes beyond doubt that increases in wealth were accompanied by investment in ever-greater internal seclusion, not only with respect to care of the body but also with respect to solitude within the home. Cultivation of the Interior Self A parallel trend, unrelated in any direct way to alterations in the material conditions of life but complementing it through its respect for a self defined independently of others, can be found in American intellectual life. The civic republicanism advocated by many members of the founding generation made no allowance for the development of individual identity; this, after all, is the significance of Benjamin Rush’s claim that each person “is the property of the republic.” Even the less rigid liberal republicanism espoused by other members of the founding generation focused primarily on rights exercised in public places (speech, press, and assembly, for instance) and attended to rights of private life (freedom of religious conscience, for instance, and the right to hold private property) because of the contribution exercise of these rights makes to political stability.

25 26

James Kernan, Perfect Etiquette, Or How to Behave in Society 61 (1877). See Jack Larkin, The Reshaping of Everyday Life, 1790–1840 123 (1988).


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Only with the advent of the movement known as transcendentalism did a substantial number of American commentors propose that every person— not merely the wealthy, not merely the artistic elite—should treat the cultivation of a unique identity as an end in itself. Walt Whitman focused on this in his poetry,27 Henry David Thoreau did so in his essays, particularly in Walden.28 For our purposes, Ralph Waldo Emerson, the preeminent sage of nineteenth century America,29 is particularly important. Emerson shouldn’t be read as a representative figure of American social thought. His criticism of conformity placed a greater emphasis on individualism than one finds in nineteenth century commentary by ministers and newspaper editorialists. Moreover, the stridency with which Emerson celebrated a self in adversarial combat with society was not typical of the times. Emerson’s thought accentuates intellectual trends, in other words; it doesn’t represent them. His ideas are nonetheless critical to understanding privacy’s growing prestige, for they gave voice to an interest in personal expression that became increasingly important in the nineteenth century. At the core of Emerson’s thought is a conception of social life as a force that stifles individual authenticity. “Society everywhere is in conspiracy against the manhood of every one of its members,” Emerson asserts in Self-Reliance, an 1841 essay. Society is a joint stock company in which the members agree for the better securing of his bread to each shareholder, to surrender the liberty and culture of the eater. The virtue in most request is conformity. Self-reliance is its aversion. It loves not realities and creators, but names and customs.30

For discussion of Whitman’s cultivation of his private self, see David Lehman, “The Visionary Whitman,” in David Haven Blake and Michael Lobertson, eds., Walt Whitman: Where the Future Becomes Present 8, 9 (2008). 28 For discussion of Thoreau’s analysis of the private self, see Jane Bennett, “Thoreau’s Techniques of Self,” in Jack Turner, ed., A Political Companion to Henry David Thoreau 294, 308 (2009). 29 For analysis of Emerson’s role as a sage, see George Landow, Elegant Jeremiahs: The Sage from Carlyle to Mailer 30–3 (1986). 30 Ralph Waldo Emerson, Self-Reliance [1841] in Essays and Poems by Ralph Waldo Emerson 116 (Peter Norberg, ed., 2004). 27


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Here, the acquisitive impulses associated with the Lockean justification for property rights are denounced in favor of a creativity that, on Emerson’s reckoning, is latent in each individual. “Liberty and culture” are “surrendered” in favor of the property fetishes of society-as-a-jointstock-company. “Whoso would be a man must be a nonconformist,” Emerson writes. “No law can be sacred to me but that of nature. . . . I shun father and mother, and wife and brother, when genius calls.”31 There’s an obvious element of bluster in this exhortation to forgo social and family ties. Emerson himself was devoted to his family; he didn’t cast others aside to follow the call of genius.32 Nonetheless, it’s clear that in passages like these Emerson presupposes a tradeoff between expressive individualism and social conformity. His rhetoric, as distinguished from his actual conduct, seems solipsistic, even nihilistic. It’s as extreme in its way as Benjamin Rush’s claim that every man is the property of the republic. There’s an important sense, then, in which Emerson promoted a climate of opinion hospitable to privacy even on those occasions when he failed to use terms such as privacy and private life. But there were occasions when Emerson actually did use these terms. In The American Scholar, for instance, his 1837 Phi Beta Kappa oration at Harvard, Emerson remarks that “[t]he private life of one man shall be a more illustrious monarchy, more formidable to its enemy, more sweet and serene in its influence to its friend, than any kingdom in history.”33 Private life, on this analysis, offers an alternative to the quest for glory characteristic of monarchical rule. Republicanism has superseded monarchy, and within republicanism private life has begun to take precedence over public engagement. Emerson’s version of republicanism holds out the prospect of a quest for authenticity, a quest that can be undertaken by everyone, not only by the high and mighty.

31

Id. For an account of Emerson’s marriage to his wife Lidian, see Ellen Tucker Emerson, The Life of Lidian Jackson Emerson (Delores Bird Carpenter, ed., 1980). 33 Emerson, “The American Scholar” [1837], in Essays and Poems, supra note 30, at 63. 32


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Privacy itself figures in Emerson’s comments on authenticity. “Whatever games are played with us, we must play no games with ourselves, but deal in privacy with honesty and truth,” he writes in Illusions, an 1857 essay. “Speak as you think, be what you are.”34 It would be hard to find in any nineteenth century American essay a more direct linkage of privacy and authenticity. In establishing this connection, Emerson doesn’t break with the past: as we’ve seen, The American Scholar posits a republican basis for expressive individualism. Rather, he rethinks it as he encourages each member of the republic to develop an authentic self by loosening the bonds of communal life. The Right of Privacy (Etiquette Version) If we return to Robert de Valcourt’s Illustrated Book of Manners, we find a passage on the right of privacy that relies on comments that integrate a concern with seclusion, informational control, and the possibility of autonomy. As noted earlier, Valcourt doesn’t employ this taxonomy. He speaks of a general—i.e., undifferentiated—right of privacy, but the right he discusses unmistakably has components of the triadic division now used to talk about privacy. “One of the rights most commonly trespassed upon,” Valcourt asserts, is the right of privacy, or of the control of one’s own person or affairs. There are places in this country where there exists scarcely the slightest recognition of this right. A man or woman bolts into your house without knocking. No room is sacred unless you lock the door, and an exclusion would be an insult. Parents intrude upon their children, and children upon their parents. The husband thinks he has a right to enter his wife’s room, and the wife would feel injured or excluded, by night or day, from her husband’s.35

The tone here is no different from Mrs. Western’s. The premises are also similar; in particular, the premise that family members owe obligations of restraint to one another is as clear here as it was in

34 35

Emerson, “Illusions” [1857], in id. 412. Valcourt, Illustrated Manners Book, supra note 18, at 85.


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Mrs. Western’s exchange with her brother. The vocabulary is different, however, for Valcourt speaks of a right of privacy (a moral, not a legal, right, needless to say) whereas Mrs. Western doesn’t employ the language of rights. On Valcourt’s reckoning, privacy conventions mimic those of the law in that they impose obligations on each person, although the obligations are enforceable only by means of censure. Thus, even though a husband may have a property right “to enter his wife’s room,” he has no moral right to do so and so is obligated (moral version of the term) to refrain from doing so. A similar point applies to the other transgressions Valcourt discusses: they have no legal weight but they’re nonetheless binding in light of the informal order he’s discussing. Privacy, on this analysis, operates through exclusionary principles of the kind employed in property law, but privacy obligations are so complex that the rules associated with property don’t begin to capture them adequately. It might reasonably be contended that Valcourt doesn’t report operative privacy conventions but instead seeks to impose novel ones. In particular, because it seems unlikely that parents of the day were prepared to grant their children the leeway Valcourt advocates, his comments on this subject almost certainly don’t reflect actual practice. But even if this criticism is sound, Valcourt can’t be charged with having fabricated an informal household order. On the contrary, although Valcourt may have accorded greater force to privacy conventions than actually existed, it’s clear he was describing a coherent system of social relations, one enforced not by legislation but by unstated understandings about proper behavior. The function of privacy in commonly shared space, Valcourt suggests, is to promote the possibility of personal independence. “Each person in a dwelling should, if possible,” he writes, have a room sacred from intrusion as the house is to the family. No child, grown to the age of discretion, should be outraged by intrusion. No relation, however intimate, can justify it. So the trunks, boxes, packets, papers, and letters of every individual, locked or unlocked, sealed or unsealed, are sacred. . . . Books in an open case or cards on a center-table


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are presumed to be open for examination. Be careful where you go, what you read, and what you handle, particularly in private apartments.36

The right to privacy, on this reckoning, offers protection for the artifacts of personhood—for “trunks, boxes, packets, papers, and letters”—any object, in other words, that appears to be a repository of private facts or for which an exclusionary signal has been sent. (If no signal has been sent— if objects or cards are left “on the center-table”—no obligation of restraint exists.) The privileged status of the objects just mentioned is understandable in terms of their function in facilitating personal life, so Valcourt isn’t insisting on outsider restraint because this is something good in itself; rather, he’s insisting on this because of the contribution this kind of restraint makes to the development of an independent self. Valcourt’s comments on courtship emphasize the way in which seclusion and informational control contribute to independent decision-making. “Under the old system,” Valcourt remarks, “everything about courtship was open, public, and formal. No privacy was allowed.” Today, people recognize that this was “[f]alse to nature,” he adds. The old system undermined “all romance, all the delights of genuine passion, all freedom of the heart.”37 Here, as before, it’s important to note that Valcourt seems to have had his thumb on the scale of nineteenth century mores, for many parents of the day were anxious to influence the romantic decisions of their children. But even if we assume that Valcourt legislates in favor of greater protection for late-adolescent relationships than many parents were prepared to grant, there can be no doubt that he captures an important dimension of privacy by linking it to romance. Seclusion and informational control are essential to the independent decision-making people make about how to present themselves to the public. By the late nineteenth century, in other words, commentators had already begun to speak of a right of privacy that protects adolescents within intimate life.

36 37

Id. 86. Id. 305.


Chapter 6: The Nineteenth Century Court Reads the Eighteenth Century Text

If considered in light of standard doctrinal sources, privacy is the deus ex machina of constitutional law. There was no reference to it in eighteenth century ratification debates. No Supreme Court decision interpreting the Constitution mentions the term during the first 90 years of the republic’s existence. But when privacy finally appeared on the constitutional stage, the effect was dramatic, for the Court declared in Boyd v. United States, decided in 1886, that the Fourth and Fifth Amendments protect “the sanctity of a man’s home and the privacies of life.”1 Because privacy had no Article V pedigree and also no bona fides that could be derived from judicial precedent, it may seem strange that the Boyd Court turned to it so long after the Constitution’s adoption. If we look beyond the usual sources of law, though, and so consider the factors mentioned in the previous chapter, we can see how privacy came to be seen as a complement to the property rights mentioned in the text. In this chapter, we consider the first steps taken by the Court toward incorporating privacy norms into constitutional law.

1

116 U.S. 616, 630 (1886).

© The Author(s) 2016 W.C. Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_7

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This chapter charts the transition in three stages. Its first section reviews pre-Boyd commentary on privacy in the Supreme Court. In doing so, it establishes that, despite occasional references to the term for purposes of statutory construction and common law analysis, Boyd was the first case that considered privacy as a constitutional value. The second section turns to Boyd itself. The third considers its significance for later developments in constitutional law. The Boyd reference to privacy is a cautious one, I point out during the course of the chapter’s later sections. It doesn’t sever privacy from property rights; instead, it merely emphasizes how property protects privacy. Even this modest foothold is immensely significant, though, for Boyd is the common ancestor of the many twentieth century cases that treat privacy as an independent value in constitutional law. It was through Boyd, in other words, and not through Article V deliberation, that privacy gained entrée into constitutional doctrine. Needless to say, privacy’s durability as a constitutional value is attributable to developmental factors outside the domain of constitutional deliberation. No single opinion or even set of decisions could have insured its place in modern law had members of the Court not been convinced about the compatibility of privacy conventions with already-existing rights. This said, though, Boyd matters because a nineteenth century Court discerned a commitment to privacy in an eighteenth century text that contains no reference to the term.

Pre-Boyd Case Law Prior to Boyd, privacy was a marginal concern in Supreme Court case law. There are two ways of demonstrating this point. One is to consider cases where the term privacy might have been used—but wasn’t. The other is to examine the rare occasions in which privacy appears in nineteenth century volumes of United States Reports, the official source of Supreme Court opinions. (Appendix A inventories these references from 1790 to 1965.) Each approach is worth pursuing, for each underscores in a different way Boyd’s singular importance in bringing privacy to the fore in constitutional law.


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Think first about a case decided prior to Boyd where the Court might have referred to privacy. At stake in Ex Parte Jackson, decided in 1877, was the constitutionality of warrantless inspection of sealed envelopes entrusted to the United States mail. To a modern lawyer, this question seems to invite Fourth Amendment analysis. However, the Jackson Court resolved the case without mentioning that provision (or any other portion of the Bill of Rights); not surprisingly, it also considered the case without mentioning privacy. Rather, the Court relied on the Article I clause that vests the government with the power to “establish Post Offices and post Roads.” This power, the Court held, does not authorize federal officials to open mail at their discretion. “[L]etters and sealed packages . . . are as fully guarded from examination and inspection, except as to their outward form and weight,” Justice Field’s opinion for a unanimous Court states, “as if they were retained by the parties forwarding them in their own domiciles.”2 The exclusionary principle—respect the signal conveyed by a sealed envelope—on which this statement relies is obvious. Moreover, it’s clear that property rights can’t justify Jackson’s rule, for once a letter is in transit neither its sender nor its intended recipient can claim a possessory interest in it. But rather than cite the Fourth Amendment by way of textual justification, Field’s opinion states that there is no federal power to inspect sealed envelopes. Jackson is thus an intriguing example of the dog that didn’t bark. It’s always problematic, however, when inquiring into the past to point to a premise not entertained at an earlier time but viewed as urgent by commentators at a later one, for in doing so a commentator implies that the past comes up short by comparison with the present. Because this is a sound point, one can say only that Jackson relies on a nineteenth century way to think about individual rights, one that focuses on the absence of federal power rather than entitlements affirmatively stated in the text. In moving beyond the problematic category of past omissions, we should turn to actual references to privacy in reports of nineteenth century cases. The first nine entries in Appendix A cover all cases that mention privacy decided in the first century of United States Reports, 2

Ex Parte Jackson, 96 U.S. 727, 733 (1877).


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volume one of which appeared in 1790. Boyd is the eighth case on the list, the fifth in which a justice employed the term privacy, and the first in which the term was used to interpret the Constitution. A critic might argue that this is yet another exercise in dog-that-didn’t bark reasoning, for Appendix A, it might be said, merely establishes that nineteenth century legal culture had little regard for privacy. This objection can be parried, however, by noting that even though privacy wasn’t mentioned in a constitutional case prior to Boyd, the lawyers appearing before the Court and the justices themselves employed the term in revealing ways in pre-Boyd cases concerned with statutes and the common law. Of the three references to privacy by counsel appearing before the Court in nineteenth century cases, two rely on usage that had already become archaic in everyday speech and that was about to become archaic in legal discourse. The legal usage issue has to do with the relationship between privity and privacy. In stating that “[t]here was no privacy” between the two mortgages under consideration in Caldwell v. Taggart3 and in asserting in Hill v. Tucker that there was “no privacy” between two administrators of an estate,4 the lawyers in each case used privacy to refer to privity (i.e., to a relationship between parties established by means of a contract).5 The term privity continues to be employed in this way in contract law.6 What’s disappeared is reliance on privacy as a synonym for privity in legal discourse. The Appendix A cases from the second half of the nineteenth century confirm this point. Beginning with Goesele v. Bimmler, an 1853 case concerned with allegations of testamentary fraud, the Court’s reference

3

Caldwell v. Taggart, 29 U.S. (4 Pet.) 190, 194 (1830). Hill v. Tucker, 54 U.S. (13 How.) 458, 460 (1851). 5 Blackstone uses privity in this sense. In discussing property law, for instance, he remarks on the “privity of estate between the surrenderor and the surrendee” (2 William Blackstone, Commentaries on the Laws of England 326 (facsimile ed., 1979 [1766])). 6 One modern commentator, for instance, insists on privity of contract as a precondition for a suit for breach of contract. See A.G. Guest, Anson’s Law of Contract 86 (21st ed. 1959). Others, however, speak skeptically of the concept. B.A.K. Rider remarks, for example, that “[i]n the vast majority of stock exchange transactions, the notion of privity between buyer and seller is a legal fiction” (Insider Trading 3 (1986)). 4


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to privacy (“the safety of Bimeler depended on his frequent changes of residence, living in the utmost privacy”7) relies on the usage that had come to dominate everyday speech—that is, it relies on the premise that someone may legitimately exclude others for the sake of his or her wellbeing. Justice Blatchford’s reference in Cannon v. United States, a case decided a year before Boyd, to the privacy of marital relationships (“nor . . . does the statute pry into the intimacy of the marriage relation,” for it operates “without operation to what may occur in the privacy of those relations”8) is particularly revealing in this respect, for the case was concerned with the ramifications of federal anti-polygamy legislation. Moreover, Justice Matthews’s reference in The Straithairly, decided two years after Boyd, to the privacy of passengers on a ship (“[t]here is quite as much need that a steerage passenger shall have the ‘space’ and privacy” as any other passenger9) also relies on everyday usage—in this case, on the possibility of securing seclusion by excluding others. By the late nineteenth century, then, legal discourse about privacy was aligned with everyday usage. The technical term privity remained vital for the law of contracts, but privacy no longer functioned as a legal synonym for it.

Boyd Because Boyd is part of a cluster of late nineteenth century cases in which justices invoke the word privacy, the Court’s opinion in the case can readily be understood in terms of the context of its time. In this respect, Boyd stands for the unsurprising proposition that judges tend to incorporate key concepts of the day into their interpretation of texts adopted at an earlier time. Boyd, in other words, imposes a nineteenth century concern on an eighteenth century text, emphasizing (as the framers had not) the privacy ramifications of the term searches and seizures. We can best appreciate the tension between these two points—on the one hand, a post-founding context hospitable to discussion of privacy 7

Goesele v. Bimeler, 55 U.S. (14 How.) 589, 603 (1853). Cannon v. United States, 116 U.S. 55, 72 (1886). 9 The Straithairly, 124 U.S. 558, 577 (1888). 8


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and on the other, the framers’ earlier lack of interest in the term—by positing that Justice Bradley, author of the Boyd opinion, thought of himself not as the sponsor of a new right but rather as a guide to the past. Bradley’s Boyd remarks translate founding-era debates about searches and seizures into language congenial to a nineteenth century audience. By suggesting that the Fourth and Fifth Amendments protect the privacies of life, Bradley proposed a gloss on the text designed to enhance its appeal. Bradley’s aim wasn’t to transform the law. Nonetheless, Boyd’s long-term effect was to change doctrine. Boyd is an unintentionally transformative opinion, in other words. It is a catalyst for change despite its author’s preservationist intentions. At issue in Boyd was a civil forfeiture action brought against E.A. Boyd & Sons by the federal government for defrauding it of customs duties. The Boyds had contracted to provide plate glass for a federal office building. The contract authorized them to replenish their inventory on a duty-free basis the amount of glass they had withdrawn for the sake of the building project. The government’s complaint alleged that the Boyds had imported more plate glass than they had used. To prove this, the government requested that a trial court issue, pursuant to 1874 enabling legislation, a subpoena commanding production of an invoice concerning an earlier shipment of plate glass. Once confronted with the government’s motion, the Boyds had to consider two unpleasant options. They could comply with the subpoena (and so allow inspection of the invoice) or they could admit the validity of the government’s claims concerning its contents. The Boyds settled on the former option. They complied (and so in due course were found guilty of customs fraud), but they also challenged the constitutionality of the subpoena under the Fourth and Fifth Amendments, thus setting the stage for the Supreme Court’s resolution of the case.10 Given these facts, Boyd doesn’t seem particularly hospitable to a privacy claim. Certainly it seems less so than Jackson. That Bradley was nonetheless able to persuade a majority his brethren to treat privacy as relevant to the case testifies to the concept’s enhanced prestige in the late

10

Boyd, 116 U.S. at 617–21.


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nineteenth century. Bradley’s Boyd comments move from property to privacy by means of an effort to retrieve the original meaning of the term unreasonable searches and seizures. To understand the meaning the framers attributed to this phrase, Bradley writes, “it is only necessary to recall the contemporary or then recent history of the controversies on the subject [of search warrants], both in this country and in England.”11 As far as the founders were concerned, Bradley asserts, those controversies were definitively resolved in Lord Camden’s opinion in Entick v. Carrington, a 1765 case, so Bradley offers an extended analysis of Entick to account for the Fourth Amendment’s meaning. Entick arose out of a trespass action brought against crown agents for executing general warrants to search the home of a printer suspected of helping John Wilkes publish pamphlets critical of the government. In holding the warrants invalid, Camden relied on a Lockean theory of property rights. “The great end for which men entered society,” Camden states, “was to preserve property.”12 Blackstone’s Commentaries, it will be recalled, assert that “[t]here is nothing which so generally strikes the imagination, and engages the affections of mankind as the right of property . . . ,”13 so it’s clear that Camden’s premise about property’s role as an anchor for protecting personal liberty was widely shared at the time. In relying on this premise, Camden turns to the legal remedy— trespass—employed to protect property rights. “By the laws of England,” Camden writes, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot on my ground without my license, but is liable to an action though the damage be nothing. . . . If he admits the fact, he is bound to show, by way of justification, that some positive law has justified or excused him. The justification is submitted to the judges, who are to look into the books, and see if a justification can be

11

Id. 624–5. Entick v. Carrington, 19 Howell’s State Trials 1029, 1043 (1766). For Locke’s use of the concept of property, see his Second Treatise, supra Chapter 4, note 28 and accompanying text. 13 For Blackstone on property, see his Commentaries, supra Chapter 5, note 26 and accompanying text. 12


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maintained by the text of the statute law, or the principle of the common law. If such an excuse can be found or produced, the silence of the books is an authority against the defendant.14

This passage is concerned only with the narrow version of property Madison considers at the beginning of his essay on the subject. Camden’s subsequent remarks are compatible, however, with a broader conception of property—with one that allows for hierarchical rankings of different types of property. Camden introduces this qualitative approach to property rights while discussing the seizure of Entick’s papers. About these, he says: Papers are the owner’s goods and chattels; they are his dearest property; and are so far from enduring a seizure, they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of trespass, yet where private papers are removed and carried away the secret nature of those goods will be an aggravation of the trespass and demand more considerable damages in this respect.15

To a modern reader, it might seem as if the concept of privacy pervades this passage. If personal papers are their owner’s dearest property, a later reader would say, this is because they’re private.16 Dearest property is a mongrel concept, such a reader would contend. It’s a cross-breed that blends the lack of sentiment appropriate to marketable commodities (property) with the emotional considerations attached to objects of personal intimacy (dearest). Camden, this reader would say, should have had the courage to leap outside the property framework altogether by recognizing that he was in fact talking about privacy. But Camden didn’t make this conceptual leap. Even Bradley only half-heartedly makes it, for although Bradley adds a privacy gloss to

14

Entick at 1044, cited in Boyd at 627. Id. 627–8. 16 “‘Privacy’ appeared nowhere in Camden’s two-hour speech,” William Cuddihy remarks, “but he properly articulated the modern conception of privacy as the modern right to be let alone.” The Fourth Amendment: Origins and Original Meaning, 602–1791 453 (2009). 15


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Entick he doesn’t quarrel with the property-based framework essential to the eighteenth century common law. “The principles laid down in this opinion [i.e., Entick] affect the very essence of constitutional liberty and security,” Bradley writes. They reach farther than the concrete case before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life.17

Bradley’s remark about going beyond the concrete case before the court is of course just as relevant to the Boyd facts as it is to Camden’s approach to Entick, for on the face of it Boyd has nothing to do with the sanctity of a man’s home and the privacies of life. The many twentieth century opinions that respectfully cite Boyd had to deal with this peculiarity of the case since Bradley’s remarks presuppose the possibility of privacy protection for corporations as well as people, something that makes little sense given the fact that people seek privacy for themselves to conduct their personal lives whereas businesses use exclusionary strategies merely to obtain a competitive advantage over other businesses. We will return to this point later.18 What should be noted here is that in discerning privacy’s significance in Camden’s remarks, Bradley ventures beyond the immediate issue in dispute to introduce a category not considered seriously either by the framers or by Camden himself. Because the category is genuinely novel, it could serve as a platform for the elaboration of rights unrelated to property, thereby opening a wide range of interpretive possibilities in constitutional law. There’s no reason to suppose, though, that Bradley wanted to provide a platform that would depart from the property-based perspective that informs Entick. Bradley thought of privacy as the crown jewel within property rights, not as a category meriting protection on its own. Bradley’s analysis of the Boyd facts establishes that his prime concern

17 18

Boyd at 630. See Chapter 11 infra, notes 48–9 and accompanying text.


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was the vindication of property rights. The Boyds were charged with customs fraud, but none of the papers they had to produce could have been classified as contraband. Whenever something is contraband, Bradley reasons, it’s liable to seizure under the Fourth Amendment. In contrast, lawfully held papers are immune from seizure. “The two things differ toto coelo,” Bradley asserts. In the one case, the government is entitled to the property; in the other it is not. The seizure of stolen goods is authorized by common law. . . . [In contrast], by the proceeding now under consideration, the [trial] court attempts to extort from the party his private books and papers and make him liable for a penalty or to forfeit his property.19

On this analysis, an invocation of property rights is sufficient to resolve Boyd—thus making the privacies of life comment nothing more than intriguing dictum. Books and papers that are licitly held—mere evidence, to use the category that later came to be employed in this context—are wholly immune from seizure under the Constitution, Bradley concludes. That a diary or letters to a lover might be classified as key components of “the privacies of life” is simply not relevant to this property-based framework. What matters instead is that they are lawfully held property and so exempt from government seizure for the same reason that an invoice prepared by a corporation is exempt from this. On this analysis, property rights are all that matter as far as Boyd concerned, though the case’s enduring significance is to be found in its reference to privacy.

The Transformative Power of an Invocation of Tradition Bradley’s Boyd opinion is understandable in terms of a paradox, then. Its aim was to retrieve founding-era conceptions of the Fourth Amendment. But because it accounted for the past through reliance on a category the 19

Boyd at 623–4.


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framers hadn’t employed, it intimated the possibility of supplementing the enumeration of rights. It’s clear that Bradley wasn’t an advocate of rights-enlargement. Because he wished to translate the eighteenth century’s conceptual framework into language that would appeal to a nineteenth century audience, he can’t be said to have endorsed the expansive notions of privacy that later justices—Brandeis and Douglas, in particular—attributed to his Boyd remarks. Bradley unintentionally brought about a transformation in constitutional law, in other words. Had he grasped the possible consequences of his gloss, he might well have omitted it. Indeed, even if we think of Bradley in the role he appears to have assigned himself—as an intermediary between past and present—we have to ask whether he faithfully captured the presuppositions of an earlier generation when he spoke of the “privacies of life.” The answer to this question depends on one’s conception of fidelity in translation. In one respect, Bradley was indeed a faithful translator, for Camden’s reference to dearest property, it could be said, calls for the kind of leap he made to the novel category of privacy. In another respect, though, Bradley’s translation is open to challenge, for use of the term privacies of life is unfaithful to republicanism’s concern with public liberty. The framing generation might have deemed it appropriate for women to champion the privacies of life (something Mrs. Western does in reproaching her brother in Tom Jones), but they almost certainly would have been troubled by the license Bradley’s term appeared to hold out for men, whose participation in public life was considered essential to the stability of republican institutions. Once this point is grasped, it becomes possible to see how an invocation of the past can be a catalyst—in some instances, an unintended catalyst—for innovation by later generations. Bradley didn’t think of Boyd as a revolutionary opinion. But even though he didn’t intend to modify the constitutional order, Bradley’s gloss on the text served as a platform for later efforts to reason in terms of rights with no necessary connection to property. It’s in this way that change can occur within a tradition of commentary on a text. The presence of a novel category in an authoritative interpretation makes it possible for other, also authoritative, commentators to expand on original understandings of the text’s


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proper application. The exercises in developmental supplementation that generated privacy rights, it’s essential to add, depended on more than Justice Bradley’s Boyd comments, for in the final analysis privacy’s importance in modern doctrine has hinged on its compatibility with the general principles of rights-based reasoning characteristic of liberal politics. Nonetheless, Bradley’s privacy reference can’t be ignored since it inaugurates judicial consideration of what had previously been a process of extralegal change in American life.


Chapter 7: From Thoughts and Beliefs to Emotions and Sensations: Brandeis on the Right to Be Let Alone

Though an afterthought at the time of the founding, privacy became an integral part of doctrine by virtue of Justice Bradley’s Boyd opinion. The occasional nineteenth century references to privacy in United States Reports gave way, by the early twentieth century, to multiple comments on the Constitution’s solicitude for privacy, each comment dependent in one way or another on Boyd’s gloss on the text.1 Even in the early twentieth century, however, privacy remained a derivative concept in constitutional law. Only when there is an intrusion (i.e., a trespass) on tangible property, the Court consistently held, can someone assert a Fourth Amendment claim bearing on privacy.2 But with Boyd having suggested that the Fourth and Fifth Amendments protect the “privacies of life,”3 early twentieth century justices sought to sever Bradley’s comment from its moorings in property law. Privacy merits

1

See cases numbers 11, 14, 15, 17, 25, and 28 in Appendix A, all cases decided after Boyd and prior to Olmstead, in which Boyd is favorably cited. 2 Olmstead v. United States, 277 U.S. 438 (1928), discussed infra, at notes 42–55 and accompanying text. 3 Boyd v. United States, 116 U.S. 616, 630 (1886).

© The Author(s) 2016 W.C. Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_8

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protection in its own right, they claimed. It should be recognized as a key component of individual freedom, as something even more precious than ownership rights in things. An argument of this kind reassesses founding-era priorities. Whereas Madison and his peers identified property as the organizing idea for the domain of personal life,4 members of the early and midtwentieth century Court—initially a dissenting minority, but eventually a majority—treated privacy as central to the analysis of individual rights.5 This chapter and the next examine the steps essential to the property/ privacy revaluation of the early twentieth century. The starting point for inquiry is Justice Brandeis’s comment, contained in his dissent in Olmstead v. United States, a 1928 case, that the Constitution protects “the right to be let alone.”6 Brandeis’s specific concern in Olmstead was the constitutionality of warrantless wiretapping of phone conversations, so his remarks matter in part because they hold out the prospect of constitutional protection against the surveillance state. But they matter for two further reasons as well. One of these has to do with the property/privacy connection, for in claiming that phone conversations are protected against warrantless surveillance, Brandeis argued in favor of a constitutional shield for communicative privacy even when property rights are not at stake. The second reason was more general, for Brandeis used his Olmstead dissent to propose a particularly ambitious exercise in interpretive supplementation, one that assigns privacy pride of place within the realm of individual rights. He did so by interpreting the Constitution in light of a phrase contained in the Declaration of Independence. “The makers of our Constitution,” Brandeis writes, undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and

4 For Madison’s treatment of property as the organizing concept for the realm of personal rights, see supra Chapter 4, notes 26–7 and accompanying text. 5 See infra notes 6–7 and 54–5 and accompanying text for Brandeis’s capacious conception of privacy. See infra notes 29–31 and accompanying text for mid-twentieth century dissents that treat privacy as a core value. 6 Olmstead, 277 U.S. at 438 (Brandeis, J., dissenting).


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satisfactions of life are [sic] to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.7

The Constitution protects a right to be let alone? The framers treated privacy as a key category for legal analysis? On no reasonable reckoning can these claims be said to offer an accurate account of the founding. Indeed, because Brandeis so blatantly rearranges the past—reading the Constitution in light of the Declaration of Independence, for instance, and attributing to the text a right it clearly doesn’t mention—his audience must have recognized he was offering a creative reinterpretation of the nation’s origins. What his audience may not have recognized, however, is that Brandeis supplemented the text through his commentary on components of the right to be let alone. That right, Brandeis asserts, “protect[s] Americans in their beliefs, their thoughts, their emotions and their sensations.” The first two items on this list are anchored in the text: beliefs in the First Amendment’s free-exercise clause and thoughts in that provision’s speech and press clauses. In contrast, the next two items (emotions and sensations) have no textual anchor. They of course have an affinity with thoughts and beliefs, for all four items on Brandeis’s list can be taken as aspects of “man’s spiritual nature, . . . his feelings, and intellect.” But emotions and sensations are affects. They can’t be placed under the heading of intellect. Indeed, it’s because Brandeis’s supplementary items rely more heavily on sentiment than reflection that we can say he introduces novel themes into his analysis of individual rights, for supplementation that includes protection for emotions and sensations goes considerably beyond the sober categories the text explicitly protects. 7

Id.


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Brandeis’s right to be let alone isn’t merely an afterthought, then, it’s an afterthought proposed by means of retrojection. That is, it is an idea whose legitimacy is established through projection of an interpreter’s values onto a sacred past. Retrojection has been a common feature of many traditions. As Gershom Scholem remarks in commenting on rabbinic interpretation of the Torah, “the achievement of every generation, its contribution to tradition, was projected back into the eternal present of the revelation at Sinai.”8 It seems reasonable to suppose, given the literalism of contemporary constitutional discourse, that no current justice would dare to undertake the kind of retrojection Brandeis proposed in his Olmstead dissent. Rather, a modern defense of Brandeis’s Olmstead argument would focus on the following claims: (i) that privacy and private life must be protected in a liberal polity, for otherwise the state would be able to determine the terms by which individuals conduct their personal affairs, (ii) that it’s reasonable to supplement the text by moving from beliefs and thoughts to emotions and sensations since these latter categories capture key elements of private life, and (iii) that it’s also reasonable to supplement the text by offering protection for informational privacy (without regard for property rights) since this is essential to the uninhibited expression of emotions and sensations. An argument along these lines dispenses with Brandeis’s rhetorical trope about the framers. It substitutes candor for retrojection, thereby offering a justification for constitutional privacy protection that acknowledges the gap between past and present while insisting on the legitimacy of the property/privacy revaluation given the enhanced importance of individualism in the modern era. This is the justification for privacy rights that informs the remainder of the book. In the chapter that follows, I emphasize the disingenuousness of Brandeis’s appeal to “the makers of our Constitution.” I do not, however, dispense with the account of legal evolution Brandeis employed in an article on the common law that he published 38 years prior to his Olmstead dissent. On the contrary, I suggest that Brandeis’s developmental account of the common law is pertinent to constitutional

Gershom Scholem, “Revelation and Tradition as Religious Categories in Judaism,” in Scholem, The Messianic Idea in Judaism and Other Essays on Jewish Spirituality 289 (1971).

8


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law as well—that is, I suggest that Brandeis’s Olmstead dissent substitutes a creation myth about the framers’ commitment to privacy for what should have been a candid account of evolutionary constitutionalism. The final portions of the chapter consider the ramifications of the right to be let alone once it is analyzed in developmental terms. They examine the right’s scope, its bearing on free speech/free press claims, and also its bearing on wiretapping of the kind undertaken in Olmstead.

The Brandeis Right in Common Law Garb In the second edition of his Treatise on the Law of Torts, published in 1888, Thomas Cooley stated that “[t]he right to one’s person may be said to be a right of complete immunity: to be let alone.”9 Two years later, Brandeis and Samuel Warren, prompted by the latter’s indignation over journalistic intrusions into his private life,10 drew on Cooley’s phrase (with appropriate acknowledgement of its source) in a Harvard Law Review article that introduced the provocative term the right to be let alone.11 Appearing only four years after Bradley had spoken in Boyd of the Constitution’s protection for “the privacies of life” and two years after Cooley had referred to a “right of complete immunity” in one’s person, the Warren/Brandeis article, entitled “The Right of Privacy,” signaled that privacy, previously a category of marginal importance as far as lawyers were concerned, had come into its own in American law. The article (for simplicity’s sake we can call it the Brandeis article, joint authorship notwithstanding) was an immediate success,12 not so much because Brandeis’s specific conception of privacy was accepted by judges 9

Thomas Cooley, Cooley on Torts 29 (2nd ed. 1888). See Amy Gajda, “What if Samuel D. Warren Hadn’t Married a Senator’s Daughter?: Uncovering the Press Coverage That Led to ‘The Right to Privacy,’” 2008 Michigan State Law Review 35. 11 Samuel Warren and Louis Brandeis, “The Right to Privacy,” 4 Harvard Law Review 193 (1890) (hereinafter The Brandeis article). 12 For discussion of the article, including an examination of its reception, see Melvin Urofsky, Louis D. Brandeis: A Life 98–9 (2012). 10


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and scholars but because his audience approved of his evolutionary account of the common law. Brandeis relies on a narrative of doctrinal change—on “the beautiful capacity for growth which characterizes the common law”— to support his legal evolution thesis. In “very early times,” he writes, “the law gave a remedy only for physical interference with life and property, for trespass vi et armis.” During this early period, “liberty meant only freedom from actual restraint; and the right of property secured to the individual his lands and his cattle.” In due course, the range of protection was enlarged. “[T]here came a recognition of man’s spiritual nature, of his feelings and intellect.” As “the scope of legal rights broadened . . . [t]he right to life has come to mean the right to enjoy life—the right to be let alone. . . . ” Because of this enlarged perspective, “the term ‘property’ has grown to comprise every form of possession—intangible as well as tangible.”13 Implicit in these remarks is an argument that legal doctrine evolves through the subdivision of categories—in particular, that it grows when one category breaks free from another and assumes independent standing on its own. Brandeis might of course have taken a different approach. Had he adopted the line of reasoning Madison employed in his 1792 essay on property, Brandeis might have treated property as the master concept of the common law, proposed privacy as a specially valuable component of property, and then identified specific types of intimate property that merit heightened legal recognition—for instance, diaries and medical records (a person’s dearest property, Brandeis might have said in following Lord Camden’s lead14). An argument of this kind would have preserved the conceptual core of common law thought while allowing for distinctions within that core. Brandeis opted instead for independent categories: for privacy as a concept that should be distinguished from property, with the latter understandable in terms of rights that further material acquisition and the former in terms of those that further self-realization. Brandeis’s commitment to this distinction is traceable to his admiration of

13

The Brandeis article, supra note 11, at 193–4. For discussion of Camden’s comments on “dearest property,” see Chapter 6 supra, note 15 and accompanying text. 14


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Emerson,15 whose ideas, he once remarked, “are alone enough to make a man immortal.”16 In championing Emerson’s distinction between the material and the spiritual, Brandeis was relying on a theme that had become a staple of nineteenth century American social thought.17 Brandeis, in other words, attributed to the common law a potent individualism that challenged the property-based framework of thought that had dominated eighteenth century reflections on rights. In particular, Brandeis drew on the Emersonian distinction between the material and spiritual to promote privacy’s standing in the legal doctrine of his day. Common law judges rarely employed the term privacy, he conceded. But while they continued to use property-based categories, it had become clear that in many instances they were not concerned with protecting matters that have a market price but instead with protecting the well-springs of individual identity. Legal doctrines concerning intellectual and artistic property, he claimed, “are but instances of a general right to privacy, which properly understood, affords a remedy for the evils under consideration.”18 Brandeis’s properly understood underscores the interpretive premise essential to his evolutionary argument. Common law judges had relied for years on an unarticulated category—privacy—in writing opinions. The time had come for “the fiction of property” to be set aside. In doing so, judges should openly acknowledge the role privacy has come to play in the common law.19 Brandeis, in other words, claimed he wasn’t inventing a new category. Rather, he argued that the common law itself, through its “beautiful capacity for growth,” had produced a conceptual innovation, one he had discovered by analyzing prior cases. The right to be let alone, on this account, is an example of unplanned change. It can’t be traced to a specific judge. Rather, it emerged through the common law’s process of silent 15

For discussion of Brandeis’s admiration of Emerson, see Urofsky, Louis Brandeis, supra note 12, at 34. 16 Brandeis letter of 1876, as quoted in Stefano Scoglio, Transforming Privacy: A Transpersonal Philosophy of Rights 190 (1998). 17 For discussion of this, see Jeffrey Sklansky, The Soul’s Economy: Society and Selfhood in American Thought, 1820–1920 (2002). 18 The Brandeis article, supra note 11, at 198. 19 Id. 204.


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innovation, a process that unfolds through reflection on collective experience. The favorable response accorded Brandeis’s article can be explained in terms of the interest in evolutionary reasoning entertained by latenineteenth century scholars and judges.20 Nine years before Brandeis published his article on privacy, Oliver Wendell Holmes stated in the opening paragraph of The Common Law that “[t]he life of the law has not been logic: it has been experience,” for “[t]he law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”21 To nineteenth century readers, the Brandeis article instantiated Holmes’s claim. It demonstrated why the scope of rights has properly expanded to accommodate the greater complexity of everyday life, in particular the newfound emphasis on emotion and sentiment.

The Brandeis Right in Constitutional Garb To what extent does Brandeis’s constitutional right resemble its common law counterpart? In many respects, they are identical. In Olmstead, Brandeis introduces the right to be let alone by emphasizing the importance of man’s “spiritual nature, of his feelings and sentiments.”22 Because this is a phrase that appears in the 1890 article, it’s reasonable to say that Olmstead merely dresses up the common law right in constitutional garb. Moreover, because the article on the common law speaks of the importance of protecting thoughts, emotions, and sensations23 and the Olmstead dissent retains this list (while adding beliefs to it), someone can reasonably say that here, too, Brandeis’s version of the constitutional right follows his version of the common law right. But although the content of the two rights is to all 20 Henry Maine provided a framework that focuses on the evolution of legal and moral ideas in tracing the transition from status to contract in Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas (1861). For analysis of Maine's influence, see Raymond Cocks, Sir Henry Maine: A Study in Victorian Jurisprudence (1988). 21 Oliver Wendell Holmes, Jr., The Common Law 1 (1881). 22 The Brandeis article, supra note 11, at 193. 23 Id. 195.


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intents and purposes identical, the origins assigned to each differ fundamentally. The constitutional right was established by the founders, Brandeis argues. In contrast, Brandeis’s common law right has no clear moment of adoption. It emerged over time; indeed, it was only imperfectly recognized in the years preceding publication of the 1890 article.24 The strategic consideration that prompted Brandeis to provide different accounts of each right’s origin can readily be identified. The common law, while understood during the seventeenth century to have existed from “time out of mind,”25 was by the late nineteenth analyzed in evolutionary terms.26 It was taken to be an example of unplanned growth. The Constitution, in contrast, was a plan (Madison calls it a “plan of government” in The Federalist 3927), so Brandeis set aside the inconvenient fact that the framers paid no heed to privacy or to personal expression (to emotions and sentiments, for instance) when deliberating about rights. Instead, he creatively reinterpreted the founding era in light of a post-founding framework concerning human dignity. This account banishes evolutionary change from constitutional law. It attributes to the founders the values of a post-founding generation. Brandeis’s Olmstead remarks are hardly unusual in this respect. Justice Douglas’s opinion for the Court in the 1965 case of Griswold v. Connecticut—an opinion that relies critically on Brandeis’s conception of a comprehensive privacy right—also speaks of a right that predates those in the Bill of Rights.28 Other early and mid-twentieth century opinions rely on retrojection—Justices Frankfurter,29 Rutledge,30 and Murphy,31 did so, for

24

Id. 216. For discussion of the discovery of the developmental character of the common law, see J.G.A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century, Chapters 2 and 3 (1957). 26 See supra notes 21–2 and accompanying text. 27 For discussion of Madison’s use of this term in The Federalist 39, see supra Chapter 1, note 6 and accompanying text. 28 For discussion of Douglas’s exercise in retrojective supplementation, see Chapter 9 infra, notes 20–1 and accompanying text. 29 See case number 61 in Appendix A. 30 See case number 46 in Appendix A. 31 See case number 55 in Appendix A. 25


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instance—to accord privacy a prominent role in constitutional law. It’s essential, then, to come to terms with the questionable means employed at the beginning of the twentieth century to make privacy a central concern of constitutional law. Those methods can best be considered by distinguishing between retrojection and reappraisal—by thinking, in other words, about options open to authoritative interpreters of a shared text for coming to terms with the relationship between past and present. In relying on retrojection, an interpreter flattens history. Afterthoughts become forethoughts, thus making it appear that those who created a cherished text anticipated the developments of a later age.32 Retrojection is particularly tempting in American constitutional law given the prestige enjoyed by the founding generation. As noted earlier, it’s arguable that Brandeis’s audience understood that he was assigning his own ideas to what he called “the makers of our Constitution,” for the similarity between his characterization of the common law right to be let alone and his characterization of the constitutional right is striking indeed. But whatever his audience may have grasped, it’s clear that Brandeis’s Olmstead exercise in retrojection relied on an impermissible route to doctrinal change. There is a historicity to each provision of the Constitution. To modify constitutional law by means of retrojection is to deny that historicity. In doing so, an interpreter confines doctrine to an eternal present, thereby sidestepping the phenomenon of evaluative change discernible in altered readings of an enduring text. This is not to say that the text’s open-ended provisions are immune to interpretive reappraisal. On the contrary, as was noted in the opening chapters, the framers appear to have been open to the legitimacy of extending rights through interpretive supplementation of the clauses contained in amendments one to eight (thus the significance of Sedgwick’s comment on the right to wear a hat). Moreover, the propriety of reappraising founding-era presuppositions without reliance on Article V was also accepted from the outset (thus the significance of Madison’s 32

For discussion of retrojection as a component of Biblical history, see Marc Brettler, “Interpretation: Jewish Interpretation in the Premodern Era,” in Michael Coogan, ed., The New Oxford Annotated Bible: New Revised Standard Version with the Apocrypha 481 Essays (Augmented 3rd ed. 2007).


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willingness to rethink his own position on the Bank of the United States). It’s essential, though, for post-founding interpreters to reappraise earlier premises with at least the same degree of candor Madison brought to this when thinking about the Bank charter33—and it’s in this respect that Brandeis’s Olmstead remarks are disappointing. Indeed, they’re disappointing not merely when considered in light of Madison’s candor but also when considered in light of contemporary judicial commentary on privacy rights, for while Brandeis and Douglas blurred past and present in their comments on privacy rights contemporary justices have acknowledged the gap between them. Justice Kennedy’s opinion for the Court in Lawrence v. Texas, for instance, states that had the framers “known the components of liberty in its manifold possibilities, they might have been more specific” about the range of constitutionally protected rights.34 Kennedy’s might have emphasizes, as Brandeis’s Olmstead remarks do not, the fact that the framing generation did not consider many possible activities involving “emotion and sensation” (Lawrence was specifically concerned with same-sex sodomy) to be constitutionally legitimate. His might have, in other words, speaks to the possibility of developmental supplementation—of adding rights through reflection on the “manifold possibilities” of social change that can emerge from a plan of government committed to the furtherance of individual freedom. It’s because contemporary justices rely on the text’s open-textured provisions to reappraise the past that one can speak of a genealogy of constitutional privacy rights. As I use the term, a constitutional genealogy traces a line of doctrinal descent that has no clear origin in Article V deliberation. The afterthoughts discussed in the book’s opening section— the power to charter a national bank, for instance, and the right to be free of discrimination by the federal government—have to be analyzed on genealogical terms, for there was no one moment when “We the People” agreed to them as norms to be used in assessing the government’s exercise of power. Brandeis’s Olmstead dissent is a key stage in the genealogy of privacy rights. It builds on Bradley’s Boyd remark concerning the “privacies

33 34

For discussion of this, supra Chapter 1, note 35 and accompanying text. Lawrence v. Texas, 539 U.S. 558, 578–9 (2003).


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of life.” But it goes substantially beyond Bradley’s comments by extending the text’s inventory of protected categories. In doing so, it champions expressive over possessive individualism, thereby holding out the prospect of enlarging the scope of protected freedom. Moreover, in adding that the function of the Fourth Amendment is to protect the right to be let alone, Brandeis engages in developmental supplementation of that provision as well, for the wiretapping operation conducted in Olmstead made no incursion on real estate controlled by the defendants—and could be held illegal only by concluding that the Constitution protects communicative privacy even in the absence of an interference with tangible property. Each of these claims—the first, an extension of the text to protect a comprehensive right concerning the conduct of private life, the second an extension to protect against government intrusions on communicative privacy—is plausible. Whether each is legitimate is another matter. Although the mid-nineteenth century transcendentalists showed greater respect for personal fulfillment than did members of the founding generation, there is little evidence of legislative support for claims involving personal autonomy as of the early twentieth century. Same-sex sodomy remained a taboo.35 Margaret Sanger’s birth control clinics encountered legal challenges when providing contraceptive services even to married women.36 Pre-marital sex continued to be the subject of disciplinary action in colleges of the day.37 Even Brandeis’s insistence on constitutional protection against non-trespassory wiretapping found little support in legislation.38 Brandeis’s Olmstead exercises in supplementation relied, then, on notional extensions of the text that had yet to be affirmed by patterns

35

As the Court noted in Bowers v. Hardwick, consensual same-sex relations were criminally prohibited in all 50 states as late as 1960. 478 U.S. 186, 193 n. 7 (1986). 36 For an account of the 1914 New York prosecution of Margaret Sanger for providing birth control advance, see Ellen Chesler, Woman of Valor: Margaret Sanger and the Birth Control Movement in America 99–100 (2007). 37 For discussion of college rules governing sexual activity in the immediate aftermath of World War II, see Beth Bailey, Sex in the Heartland Chapter 2 (1999). 38 For a survey of the patchwork of regulation of electronic surveillance in the era preceding Olmstead, see Samuel Dash, The Eavesdroppers, Chapter 3 (1959).


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of national practice (as these are evidenced in legislation and judicial decision-making). When assessed in terms of the Madisonian criterion for determining the legitimacy of developmental supplementation noted earlier—“a construction put on the Constitution by the nation, which having made it, had the supreme right to declare its meaning”39—the Brandeis extension of the text has to be declared less than satisfactory. His Olmstead dissent anticipates what the nation might become. It doesn’t, however, speak for what the nation had become. On this reckoning, the Brandeis right occupied an ill-defined status in American constitutional law as of the early twentieth century. It generalized on trends already underway in national life, but it didn’t speak for widespread national practice. Developmental constitutionalism makes allowance for this kind of middle ground: it makes allowance, in other words, for emergent possibilities that are compatible with the text but that haven’t the credentials to warrant inclusion in doctrine. Racially segregated schooling gradually lost its hold on American life;40 similarly, the death penalty for adolescents also became a vestige of the past41—so a proponent of developmental constitutionalism would point out that applications of the text not entertained by its ratifiers (but which are now firm components of doctrine) were at one time emergent possibilities. The constitutional version of the Brandeis right, merely an analogical possibility earlier in the nation’s history, had become a meaningful candidate for inclusion in constitutional law by the time Olmstead was decided, though it can’t be said to have satisfied the criteria of legitimacy under the extended Madisonian framework. As the importance of personal fulfillment continued to grow in twentieth century America, the Brandeis right would serve as a rallying cry for a new conception of

39

For discussion of Madison’s use of this criterion, see supra Chapter 1, note 35 and accompanying text. 40 For an account of the state legislative trend toward racially integrated schooling, see Michael Klarman, From Jim Crow to Civil Rights 311 (2005). 41 Compare Stanford v. Kentucky, 492 U.S. 361 (1989) with Roper v. Simmons, 543 U.S. 551, 560–1 (2005), noting decline in the number of states that had changed their laws in the sixteen years separating the two opinions.


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liberty that would complement, not supplant, the inventory of rights adopted at the outset.

The Scope of Brandeis’s Constitutional Right In stepping back, we can say that in Olmstead Brandeis proposes a core right and a supporting one. The right to be let alone—the core right—protects personal autonomy (“beliefs, thoughts, emotions, sensations”). An ancillary right concerning information pertaining to the exercise of autonomy promotes uninhibited decision-making by prohibiting arbitrary government surveillance of intimate activities (“[t]o protect that [comprehensive] right, every unjustifiable intrusion upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment”). The term privacy does double duty in this sentence. It refers to conduct—to the activities that come under the umbrella term private life. But it also refers to the barriers (sometimes physical, sometimes merely symbolic) that shield this conduct from scrutiny by outsiders. Brandeis’s Olmstead comments on the right to be let alone don’t go beyond these programmatic points. They set a direction for judicial articulation of constitutional privacy rights, but they leave a great deal to later interpreters. In particular, three issues are left unresolved by the Olmstead remarks. One has to do with the reason why his right to be let alone is formulated in such a way as to protect privacy but not property rights. A second has to do with the bearing of the right to be let alone on freedom of the press. And a third has to do with the connection between autonomy and communicative privacy. This section addresses all three issues. It concentrates, though, on the final one given its particular importance for later developments in constitutional privacy protection. Privacy over Property In Olmstead, Brandeis doesn’t merely engage in interpretive supplementation, he engages in evaluative supplementation, for he characterizes his right in terms that unmistakably indicate it merits greater judicial solicitude than rights that promote opportunities for material gain (“the most comprehensive of rights and the right most valued by civilized men”). This exercise in evaluative supplementation almost certainly wasn’t anticipated at the outset. Moreover, given its


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possible application to activities that deviate from accepted norms, it probably wouldn’t have been accepted by the original ratifiers. But even if it’s granted that Brandeis moves properly from the said to unsaid as far as privacy is concerned, one still must ask why an exercise in supplementation isn’t also appropriate for property rights. This question takes on a special urgency because Brandeis proposed his Olmstead version of the right to be let alone in the early twentieth century, an era when the Court was ambitiously supplementing the range of economic liberty through the Lochner line of cases.42 Brandeis’s Olmstead dissent thus stands for the following proposition: don’t supplement the text on behalf of economic rights (even though these rights preoccupied the founding generation), but do supplement it on behalf of privacy (even though this issue attracted little attention at the time of the founding). Later chapters address this transvaluation of the constitutional past. It’s sufficient to note here that Brandeis doesn’t explain why the bare phrase the right to be let alone should not be applied to market transactions as well as private life. Indeed, a thorough-going libertarian approach to interpretive supplementation would apply the right in both settings. I return to this issue in the next chapter, where I consider the rationale for the modern approach to supplementation, which follows Brandeis’s Olmstead lead in that it grants preference to rights of personal liberty rather than economic freedom. Shielding Private Life from an Intrusive Press Although Brandeis is the author most commonly identified with the 1890 article championing a common law right of privacy, it was Samuel Warren, Brandeis’s law partner at the time, who proposed writing the article.43 Scholars have been unable to determine what prompted Warren’s indignation about press coverage of private life. A plausible, but by no means conclusive, answer is that Warren was provoked by press accounts of the wedding ceremony in which he married the daughter of a United States Senator.44 Whatever the catalyst for the article may have been,

42

Chapter 8 infra discusses Lochner v. New York, 198 U.S. 45 (1905) and the cases decided in light of it. 43 See Gajda, supra note 10, at 41. 44 Id. 56–7.


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it’s clear that its proposal to limit journalistic coverage of personal affairs had the potential to collide with constitutional guarantees of freedom of the press. The Brandeis article appeared to anticipate a collision—and to propose a criterion for warding it off. The article doesn’t advocate a blanket prohibition on the publication of private facts. Rather, it distinguishes between “matters of real interest to the community”45 and those “things all men alike are entitled to keep from popular curiosity, whether in public life or not.”46 It’s by no means clear whether this distinction is workable in practice— or at least it’s not clear whether it’s workable given a robust version of the free press clause. After all, it might be said that virtually everything is newsworthy in one way or another, in which case the principle of shielding private facts from press scrutiny disappears into a constitutional cloud of dust. On the other hand, it might be argued that certain matters—personal facts such as health records or sexual habits—are off limits from the press absent highly unusual circumstances. Brandeis made no effort in Olmstead to resolve this tension. For our purposes, it’s enough to note that there may be a common law privacy interest that overrides the constitutional rights of journalists to publish truthful information about a person’s intimate life.47 This is only indirectly a point about privacy rights, it should be emphasized. Rather, it’s a point about the constitutional limits of freedom of the press.48 At stake here, in other words, is a common law privacy principle that may circumscribe freedom of expression in favor of privacy.

45

The Brandeis article, supra note 11, at 196. Id. 216. 47 Compare Neil Richards and Daniel Solove, “Privacy’s Other Path: Recovering the Law of Confidentiality,” 96 Georgetown Law Journal 123, 126 (2007) (arguing that there is little that’s exempt from First Amendment protection for the press) with Jonathan Mintz, “The Remains of Privacy’s Disclosure Tort: An Exploration of the Private Domain,” 55 Maryland Law Review 425, 455 (1996) (arguing that a modest degree of privacy for “private facts”—for sexual activity and health and financial records, for instance—is exempt from First Amendment free press protection). 48 Justice Brennan’s remarks in case number 145 in Appendix A are consistent with this point. 46


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Shielding Private Life from Government Surveillance In Olmstead, Brandeis limited himself to programmatic comments about the right to be let alone because his core concern was protecting private life from intrusion by the government, not from intrusion by the press. At issue in the case was a constitutional novelty: a surveillance operation in which government agents, acting without a warrant, wiretapped conversations but didn’t trespass on property controlled by the people they were monitoring. Wiretapping had been deployed for more than half a century prior to Olmstead,49 but the Court had never dealt with it before. Two options presented themselves, each traceable to different facets of Boyd. On the one hand, it was open to the Court to hold that wiretapping, even nontrespassory wiretapping, interferes with “the privacies of life”—and so to hold that the operation was illegal because it was conducted without a warrant. On the other hand, the Court could have concluded, while drawing on a different facet of Boyd, that someone can assert a valid Fourth Amendment claim only if his property rights have been violated. The first option would have brought electronic surveillance within the realm of constitutional oversight, though only at the cost of disregarding original understandings about the importance of property rights. The second would have honored original understandings, though at the cost of exempting a major technological innovation from judicial review. Chief Justice Taft’s opinion for the Olmstead Court opted for original understandings—indeed, for original understandings in their most concrete possible form. “The Fourth Amendment is to be construed in light of what was deemed an unreasonable search and seizure when it was adopted,” Taft stated.50 Because Camden’s Entick opinion treated trespass as a prerequisite to government liability in search and seizure, Taft argued, modern interpreters also must treat this as a precondition for asserting a Fourth Amendment right. The contents of the wiretaps were thus admissible to prove the Olmstead defendants’ guilt, he thus held.

49

For an account of early wiretapping operations, see Dash, The Eavesdroppers, supra note 38, at 23–7. 50 Olmstead, 277 U.S. at 464, citing Carroll v. United States, 267 U.S. 132, 149 (1925).


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Taft follows plan-as-draught originalism here. The draught isn’t as detailed as it might be, a defender of Taft’s position might concede: the text is more a sketch than it is a blueprint for the conduct of government. But while the text doesn’t mention trespass, a Taft defender might contend, the fact that it mentions only material objects (persons, houses, papers, and effects) indicates that physical incursion on a tangible object subject to a possessory claim—a trespass, in other words—was assumed by the ratifiers to be a prerequisite to Fourth Amendment liability.51 But why should this assumption guide later interpreters, a critic of plan-as-draught originalism might ask? That is, why should presuppositions not reduced to writing determine how to apply the text to a technology the ratifiers were in no position to anticipate? These are questions that can be posed on behalf of the alternative type of originalism outlined in earlier chapters—an originalism that treats the text as a scheme rather than a draught. Plan-as-scheme originalism is faithful to the dictionary meaning of the text’s words at the moment of their ratification, but it allows for supplementation in ways that are compatible with dictionary meanings though incompatible with ratifier expectations of the text’s application. As noted in the first chapter, Madison approached the text as a scheme, not as a draught. He insisted on adherence to the original meaning of the text’s words. He did not, however, insist on adherence to understandings the ratifiers may have entertained in agreeing to adoption of those words. As a consequence, it was noted earlier, Madison was open not merely to supplementation of the text’s enumerations but to their developmental supplementation—to extensions of the text that run counter to ratifier expectations about the likely application of textual language but that are nonetheless consistent with the language itself.52 Once we set aside Brandeis’s rhetoric about rights established by “the makers of our Constitution,” we can see that his Olmstead remarks can be translated into a plan-as-scheme framework that supplements the text developmentally. If we say that the legitimacy of his argument for

51 52

Olmstead, 277 U.S. at 464. For discussion of this, supra Chapter 1, note 35 and accompanying text.


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protecting phone calls against warrantless surveillance hinges on the legitimacy of his claim about a general right to be let alone, we would have to say, as argued earlier, that this claim is weak when examined in light of the extended Madisonian framework, for there was no supermajority consensus in the early twentieth century that favored Brandeis’s ambitious extension of the text. But a more modest defense of Brandeis’s position is possible here. That is, one can sever Brandeis’s argument about communicative privacy from his argument about the right to be let alone and contend that the privacy of phone conversations should have been treated as a matter of constitutional right as of early twentieth century America even though his ambitious extension on behalf of the right to be let alone remained a notional possibility at the time. The argument for communicative privacy hinges on an analogy between letters and phone calls, an analogy Brandeis developed at length in his Olmstead dissent while assigning the Fourth Amendment a key role in protecting the right to be let alone. The Court had already held, Brandeis noted (in citing Ex Parte Jackson, the 1877 case discussed in the previous chapter53), that sealed envelopes entrusted to the mail are constitutionally protected. The same degree of protection is in order for phone calls, he argued. “The mail is a public service furnished by the Government,” Brandeis wrote “The telephone is a public service furnished by its authority. There is, in essence, no difference between the sealed letter and the private telephone message.”54 Taft challenged this analogy, noting that the text expressly calls for establishment of a postal service but says nothing about telephones.55 But this is not a convincing distinction given on the one hand Taft’s premise that the text protects privacy only as an incident to property and, on the other hand, the repudiation of property-based reasoning implicit in Jackson. A sealed letter entrusted to the mail is not, after all, the sender’s property. If the letter is nonetheless constitutionally protected (as Jackson holds), the justification for this necessarily hinges on

53

See supra Chapter 6, note 2 and accompanying text. Olmstead, 277 U.S. at 475 (Brandeis, J., dissenting). 55 Olmstead, 277 U.S. at 465. 54


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respect for privacy that’s independent of respect for property rights. It’s arguable that Jackson should be rejected (in reasoning by analogy, someone is always free to say that the initial premise—the premise that starts with if X is valid—should be repudiated). But if Jackson is deemed controlling, then Brandeis advanced a compelling argument in suggesting that respect for communicative privacy (without any connection to property rights) was already a constitutional value. Needless to say, communicative privacy is only a subcategory of informational privacy—and informational privacy, on Brandeis’s Olmstead reckoning, is important because it promotes something even more important, i.e., the exercise of autonomy in personal life. The Brandeis analogy between sealed letters and phone calls thus doesn’t establish that informational privacy—a category that includes data-acquisition, retention, and dissemination—is constitutionally protected. It does, however, provide a compelling, though limited, argument for recognizing communicative privacy rights even when property rights are not at stake. In this respect, the analogy, while not accepted by the Olmstead majority, can be characterized as a critical step (beyond Boyd) in the genealogy of constitutional privacy rights. The Brandeis dissent not only offers a communication-specific account of constitutionally protected privacy, it also connects this to a broader concept—the right to be let alone—that can be subdivided into different subcategories and operationalized through supplementation of the text. Later chapters explain how mid-twentieth century decisions translated the Brandeis dissent into specific rights. What we have seen already is how the Brandeis dissent, once shorn of its retrojectionist claims, liberates constitutional privacy protection from its origins in property protection. This was the step that was necessary to all later interpretations of privacy rights. Before turning to those interpretations, we should consider next a possible application of the Brandeis right that he consistently resisted— its application to economic as well as expressive rights. In 1928, when Olmstead was decided, this argument might not have been accepted, but only because the Court’s Lochner line of cases had supplemented the text on behalf of economic but not privacy rights. To understand how this relationship has been reversed—how privacy rights have become the


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dominant form of supplementation while property rights have come to play a supporting role in constitutional law—we should turn to early twentieth century decisions that repudiated Lochner and so set the stage for the course of change that has been undertaken in light of Brandeis’s conception of the right to be let alone.


Chapter 8: An Exercise in Supplementation That Failed: The Rise and Fall of Freedom of Contract

The text says nothing about a right of freedom of contract. But it says nothing about a right of interstate travel, a right to perform music, or an equal protection right that can be asserted against the federal government. As we’ve seen, not in the text hasn’t barred the Court from recognizing any of the rights just mentioned.1 Not in the text also hasn’t stood in the way of judicial recognition of a right of contractual freedom. No Court opinion has explained why such a right should be recognized, but apart from comments that rely on vague, but powerful, intuitions about the nature of constitutional rights (as when Chief Justice Warren stated in Bolling that it would be “unthinkable” not to recognize an equal protection right against the federal government), the Court has rarely addressed any of the questions associated with interpretive supplementation. In this case, a justification seems readily available. Article I prohibits impairment of contracts that have already been

1

For discussion of the Court’s conclusions on the right of interstate travel, supra Chapter 1, note 32 and accompanying text. For the right to perform music, supra Chapter 2, notes 29–30 and accompanying text. For the equal protection right against the federal government, supra Chapter 3, notes 1–2 and accompanying text.

© The Author(s) 2016 W.C. Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_9

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made. Because it does, someone might contend, there is also a constitutional right to enter into contracts yet to be made. Resolution of this relatively easy question sets the stage for a more difficult one—how far the right of contractual freedom extends. During the early twentieth century, the Court reasoned in terms of a robust, farreaching right to enter into contracts, one that limits substantially the government’s regulatory power over employer/employee relations. Justice Peckham’s opinion for the Court in Allgeyer v. Louisiana, an 1897 case, suggests the possibility of a comprehensive system of rights that protect freedom of contract. The Fourteenth Amendment due process clause, Peckham remarked, embrace[s] the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.2

During the early twentieth century, the Court extended Allgeyer’s contractual freedom interpretation of the Constitution. Lochner v. New York, decided in 1905, invalidated a statute that capped a baker’s workweek at 60 hours.3 Lochner was later applied to yellow-dog contracts—that is, to contracts offered to workers on condition that they not join a union. Adair v. United States, a 1908 case, invalidated federal legislation that made it a crime for an employer to dismiss someone for belonging to a union.4 Seven years later, Coppage v. Kansas, invalidated a similar state statute.5 And two years after that, the Court insured that Adair and Coppage offer meaningful protection for employers’ rights of contractual freedom by holding that a trial judge may grant an injunction to prevent

2

Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897). Lochner v. New York, 198 U.S. 45 (1905). 4 Adair v. United States, 208 U.S. 161 (1908). 5 Coppage v. Kansas, 236 U.S. 1 (1915). 3


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unions from trying to organize workers who have already signed yellowdog contracts.6 Because few judges of the early republic reasoned in terms of this robust version of contractual freedom, it’s arguable that the Lochner line of cases departs from eighteenth century understandings of the text. But as against this, it might be said of the Lochner justices that they thought of their exercise in supplementation not as an innovation but instead as an affirmation of the free labor ideology that informed the critique of slavery and the Reconstruction Amendments. On this reckoning, Lochner-type supplementation was proper because it spoke for a national consensus reflected in ratification of the Thirteenth and Fourteenth Amendments concerning the scope of economic liberty. Although freedom of contract may have been substantially limited during the first decades of the republic’s existence, a Lochner defender might argue, the Civil War’s outcome, as reflected in the Reconstruction amendments, established a commitment to far-reaching contractual freedom, one that the Court properly implemented in making sense of the free labor ideology associated with the abolition of slavery. There is much to be said for this defense of Lochner-type supplementation. Given the actual course of national change, however, Lochner’s extension of the text can’t be pronounced legitimate under the extended Madisonian framework, for Lochner and the cases decided in its wake produced a legislative backlash throughout the early twentieth century that indicated the right of freedom of contract wasn’t understood to extend to a repudiation of unionization. Indeed, during the late nineteenth and early twentieth centuries legislation was often passed at the state and federal levels limiting freedom of contract—legislation that, among other things, set minimum wages for certain workers and maximum hours for certain occupations.7 Although the Court invalidated (on freedom of contract grounds) many of the statutes that established these regulations, it

6

Hitchman Coal and Coke Company v. Mitchell, 245 U.S. 229 (1917). For an examination of late nineteenth and early twentieth century legislative trends concerning both the minimum wage and maximum working hours, see Marion Cotter Cahill, Shorter Hours: A Study of the Movement Since the Civil War (1932). 7


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ultimately chose to retreat from Lochner’s robust version of economic liberty. No modern case has repudiated the general principle of contractual freedom, but with Lochner’s eclipse the Court has ceded broad authority to legislatures to supervise market relationships. The judiciary’s retreat from a robust version of freedom of contract has confirmed a key tenet of developmental supplementation: it has demonstrated that plausible exercises in textual supplementation are constitutionally illegitimate when they don’t command supermajority support. In studying Lochner-type supplementation, we thus have a chance to examine the developmental converse of the Court’s privacy decisions. A case such as Lawrence v. Texas8 is similar to Lochner in that it also relies on the Fifth and Fourteenth Amendment due process clauses to supplement the text’s enumeration of rights. Lawrence, however, is rooted in a national consensus that can be demonstrated by reference to state legislative trends. Lochner, in contrast, is rooted in what the nation might have become—rooted, in other words, in a free labor ideology deployed to criticize slavery and later deployed by the Court to limit labor union organizing but ultimately repudiated by the public when taken to this extreme. It’s by considering the Court’s extension of an initially plausible idea concerning the dignity of free labor that we can come to terms with the discipline developmental constitutionalism imposes on judges as they supplement the text. The lesson of Lochner-type supplementation is not that judges may not extend the range of rights. Rather, it is that they properly do so only by considering the arc of national experience.

Regulation on Behalf of the Common Good: The Republican Heritage To understand the constitutional issues posed by interpretive supplementation bearing on both economic and expressive individualism, it’s essential to think first about the division of labor between the states and federal government that prevailed at the time of the republic’s founding. 8

Lawrence v. Texas, 539 U.S. 551 (2003).


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The Bill of Rights, it was widely assumed at the time it was ratified, would limit federal, not state, power. The text doesn’t address this issue directly. It was resolved, however, in Chief Justice Marshall’s opinion for a unanimous Court in the 1833 case of Barron v. Mayor and City of Baltimore,9 which holds that the Bill of Rights applies only to the federal government. States, in other words, were understood to have the power to regulate most aspects of personal life and market relationships in the absence of federal oversight. State courts insisted that this power was substantial. “All society is founded upon the principle that each individual shall submit to the will of the whole,” a New Hampshire court asserted in 1817,10 a remark with ramifications for the conduct of personal life and also for market relations. As far as personal life is concerned, states and localities claimed authority over virtually all facets of everyday life. They enforced conventional morality through sodomy prohibitions, of course, but they also insisted on adherence to other versions of the moral code of the day—by punishing travel on the Sabbath,11 for instance, and punishing blasphemy.12 States also adopted far-reaching regulatory schemes concerning market relationships (by establishing rules for the preparation and sale of food, for instance, and rules concerning the maintenance of workplaces13). By the mid-nineteenth century, ante-bellum judges had formulated the doctrine of the police power to justify the government’s exercise of regulatory authority. This power, Chief Justice Taney remarked, amounts to “nothing more or less than the power of government inherent in every

9

Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833). Mayo v. Wilson et al., 1 N.H. 53, 57 (1817). 11 Id. The occasion for the Mayo Court’s decision was a 1799 New Hampshire statute that authorized “selectmen and tythingmen, within their respective precincts, forcibly to stop and detain any person or persons traveling unnecessarily on the Lord’s day. . . . ” 12 For a review of blasphemy prosecution during the early republic, see Leonard Williams Levy, Blasphemy: Verbal Offense Against the Sacred, from Moses to Salman Rushdie, Chap. 18 (1995). 13 According to William Novak, there was “a deluge of state and economic legislation regulating economic and social life” during the early decades of the new republic. “Common Regulation: Local Origins of State Power,” 45 Hastings Law Journal 1061, 1076 (1994). 10


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sovereignty to the extent of its dominions.”14 In applying police power doctrine to property rights, Lemuel Shaw, Chief Justice of the Massachusetts Supreme Judicial Court, stated in Commonwealth v. Alger, an 1851 case, that “[a]ll property in this commonwealth . . . is derived directly or indirectly from government and held subject to those regulations, which are necessary to the common good and general welfare.”15 Shaw’s comment about the priority of the common good over private interest relies on a republican premise entertained by many members of the founding generation. His remark should not, however, be interpreted as a sign of indifference to individual rights. In Alger, Shaw states that the legislature possesses the authority to “ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances . . . not repugnant to the constitution, as they shall judge to be for the good and welfare of the Commonwealth.”16 The not repugnant to the constitution in this passage underscores the delicate balance Shaw and his judicial colleagues sought to strike. The well-regulated republic was understood to be one in which government can properly interfere substantially in private affairs (with this term understood to refer to both personal and commercial relationships) on behalf of the public interest. Republican principles supported this exercise in interest-balancing. Shaw’s comment is best understood, then, as an expression of the kind of liberal republicanism Madison had espoused two generations earlier. This framework grants legislatures substantial leeway to work out the exact balance to be struck when adopting regulatory schemes. Adoption of the Reconstruction amendments, in particular the Fourteenth Amendment, affected this balance in two ways. One had to with the Constitution’s scope, for all three Reconstruction amendments announce federal rights that can be asserted against the states. The other change brought about by the new amendments is subtler in nature. It has to do with recalibration of the police power—not with repudiation of the notion of government authority to pursue the common good but with a heightened concern about protecting individual rights against government

14

The License Cases, 46 U.S. (5 How.) 504, 583 (1847) (Taney, C.J., plurality opinion). Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85 (1851). 16 Id. 15


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incursion. Many factors contributed to the judiciary’s willingness to rethink the scope of the police power. Of particular importance was the free labor ideology at the core of northern opposition to slavery. All men have “an inalienable right of self-ownership,” participants in the 1847 Macedon Convention declared in the course of adopting an anti-slavery platform and thus a right to “the products of their own industry [and to] dispose of those products by barter and sale.”17 A comment such as this one doesn’t evince an uncompromising rejection of the police power. It does, however, open the way to arguments in favor of market-freedom in the sale of labor, a theme that runs throughout the Lochner line of cases.

Lochner’s Recalibration of the Scope of the Police Power Justice Field took an initial step toward recalibration of the police power in his dissenting opinion in The Slaughter-House Cases of 1873. At issue in the case was the constitutionality of a New Orleans ordinance that granted a monopoly to certain butchers and that therefore restrained others from engaging in this trade. “The equality of right . . . in the lawful pursuits of life . . . is the distinguishing privilege of citizens of the United States,” Field asserted. “To them, all pursuits, all professions, all avocations are open without other restrictions than such as are imposed equally on others. . . . The Fourteenth Amendment . . . makes it essential . . . that this equality of right be respected.”18 The economic individualism attributed here to the Fourteenth Amendment is far from boundless. Nonetheless, there is a stridency to Field’s analysis of individual freedom that’s absent from Shaw’s Alger comments on the importance of government regulation. On Field’s reckoning, the police power must accommodate the legitimate demands of free labor—and these demands are entitled to substantial weight given the value of liberty of contract. The Liberty Party, “Address of the Macdon Convention,” in C. Bradley Thompson, ed., Antislavery Political Writings, 1833–1860: A Reader 119 (2004 [1847]). 18 The Slaughterhouse Cases, 83 U.S. 109–11 (Field, J., dissenting). 17


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Although Field took this position in dissent, Allgeyer, and, in particular, Lochner adopted it as authoritative doctrine. They limited the scope of government power for economic, not expressive, individualism. The Lochner line of cases had a modest effect on interpretive supplementation bearing on personal life.19 Lochner’s larger significance is instead to be found in the limited role it assigns the police power when freedom of contract is at stake. Numerous cases can be cited to support this point. For our purposes, it’s sufficient to examine Adkins v. Children’s Hospital, decided in 1921, since the approach to the police power taken by the Adkins majority illustrates the extent to which members of the Court were prepared to discount claims about the legitimate scope of government regulatory authority in championing freedom of contract. At stake in Adkins was a challenge to the constitutionality of a federal minimum wage statute for women and children working in the District of Columbia. (Adkins, unlike Lochner, is thus concerned with federal, not state, police power, but this distinction doesn’t figure in the Court’s resolution of the case, for the Adkins Court assumes that the Fifth Amendment due process clause authorizes interpretive supplementation in a way that’s identical to that which is authorized by the Fourteenth Amendment due process clause.) Two parties challenged the statute: a corporation that ran a hospital and a 21-year old woman who claimed she’d lost her job because of the statute’s adoption.20 Writing for the Court, Justice Sutherland upheld their challenge, adopting a far-ranging version of constitutionally protected contractual freedom. “[F]reedom of contract is . . . the general rule,” Sutherland stated, “and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances.”21 Quoting Coppage, Sutherland remarked that “The right [of freedom of contract] is as essential to the laborer as to the capitalist,

19

See, e.g., Meyer v. Nebraska, 262 U.S. 390 (1921) and Pierce v. Society of Sisters, 268 U.S. 510 (1925). 20 Adkins v. Children’s Hospital, 261 U.S. 525, 542–3 (1921). 21 Id. 546.


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to the poor as to the rich, for the vast majority of persons have no other honest way to acquire property, save by working for property.”22 The contrasts drawn here—laborer vs. capitalist, rich vs. poor—loom large because they presuppose conflict between competing interest groups. Constitutional law must insure that none of these groups can seize state power, Sutherland and his Adkins colleagues believed. To accept the legitimacy of minimum wage legislation (or maximum hours legislation, as in Lochner) is to compromise government neutrality. On this reckoning, a right of contractual freedom, far from being incompatible with government’s authority under the police power, is essential to it, for in protecting this right, courts also insure government neutrality. To reason in this way is to claim that constitutional norms not mentioned in the text offer robust protection for free-market ordering. It is not, however, to claim that these norms prohibit all government intervention in the free market. In particular, Sutherland noted four exceptions to the presumption in favor of contractual freedom. It’s worth considering each of his exceptions, for his comments demonstrate that, even at the height of its commitment to economic individualism, the Court was prepared to grant considerable leeway to the government in regulating market relationships. The four Adkins exceptions are these: 1. “Those dealing with statutes fixing rates and charges impressed with the public interest” Common carriers such as railroads enjoy statutorily conferred monopoly privileges. They thus can’t legitimately claim to belong to the private sector, Lochner-era cases held, and so can’t invoke freedom-of-contract rights. 2. “Statutes relating to contracts for the performance of public works” When the government sets the terms for public works, the Court held, it also may limit the contractual freedom of those who perform it. 3. “Statutes proscribing the character, methods and time for payment of wages” This exception covers payment of wages, but not the number of hours someone may work or the minimum wage for labor. 22

Id. 541, quoting Coppage, 236 U.S. at 14.


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4. “Statutes fixing hours of labor in special circumstances” This open-ended exception covers maximum hours statutes for dangerous occupations (the Court accepted the legitimacy of maximum hours legislation for miners, for instance) and for certain classes of workers (women, for example).23 Because the freedom of contract presumption actually was rebutted with respect to maximum hours legislation for women, a skeptic might ask, why shouldn’t it also be rebutted with respect to a minimum wage for women (the issue at stake in Adkins)? Sutherland answers this, in part, by noting that ratification of the Nineteenth Amendment changed women’s constitutional status. Although the Court at one time treated women as wards of the state (and so as special objects of concern in the exercise of the police power),24 it no longer had reason to do so, Sutherland asserts, now that women could vote.25 It’s arguable that this is a nakedly ad hoc rationale, for one might contend that, to the contrary, the Nineteenth Amendment made it possible for women to deploy the police power to protect themselves in the workplace. But Sutherland proposed a further rationale that swallows up his “feminist” one by asserting the imperative of neutrality in the exercise of the police power. “The [statute at stake in Adkins] takes account of only one party to the contract,” Sutherland writes. It ignores the necessities of the employer by compelling him to pay not less than a certain sum . . . Within the limits of the minimum sum, he is precluded, under penalty of fine and imprisonment, from adjusting compensation for the merits of his employees. It compels him to pay at least the fixed sum in any event, because the employee needs it, but requires no service of equivalent value from the employee. It therefore undertakes to resolve only half the problem.26

23

Id. 546–8. See Muller v. Oregon, 208 U.S. 412 (1908). 25 Adkins, 261 U.S. at 553. 26 Id. 557. 24


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Recalibrating the Lochner Recalibration On this analysis, government must stay its hand: it must refrain from intervening on behalf of either side in the employer/employee relationship. But what if the public interest were to be calculated differently? What if one were to focus on the disparity in bargaining power between employer and employee and so contend that legislation may be adopted, in exercising the police power, to redress the subtly coercive effects of accumulated capital? Critics of the Court’s position argued in favor of this imbalance-correction conception of government’s proper role throughout the Lochner era. The British philosopher T.H. Green, for instance, challenged robust conceptions of contractual freedom on the ground that, in practice, these promote class oppression. “To uphold the sanctity of contracts is doubtless a prime business of government,” Green remarked, but it is no less its business to provide against contracts being made, which, from the helplessness of one of the parties to them, instead of being a security for freedom, become an instrument for disguised oppression.27

Green’s position can readily be translated into terms congenial to early nineteenth century conceptions of the police power. Government, on this analysis, exercises its oversight authority properly when it protects against market coercion—that is, when it adopts regulations that shield those with relatively modest bargaining power against market participants with substantially more. In doing so, government can continue to accord substantial weight to contractual freedom, but it may also intervene to protect the relative powerlessness of labor when arrayed against capital. This is the premise the Court adopted in the late 1930s. In 1937, in the midst of debate about President Roosevelt’s proposal to add to the number of sitting justices, the Court’s decision in West Coast Hotel v. Parrish explicitly overruled Adkins, thereby cutting back on

T.H. Green, “Liberal Legislation and Freedom of Contract,” in John Rodman, ed., The Political Theory of T.H. Green 67–68 (1964 [1881]).

27


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the ambitious exercise in supplementation associated with the Lochner line of cases. Given the Court’s holding in Adkins, the statute at issue in West Coast Hotel, a Washington state minimum wage measure for female workers, was flagrantly unconstitutional.28 Rather than follow Adkins, however, Chief Justice Hughes’s opinion for the West Coast Hotel Court rethought the principles of contractual freedom. Hughes grants that contractual freedom is constitutionally protected. But the Constitution does not “recognize an absolute uncontrollable liberty” of contract, Hughes insists. Rather, [l]iberty in each of its phases has a history and connotation. But the liberty safeguarded is the liberty of the social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.29

In this passage, Hughes reappraises Lochner’s reach. While accepting the possibility of supplementation of the text to protect contractual freedom, Hughes insists that the formal equality of employer and employee may be subordinated to regulations that promote “the health, safety, morals and welfare of the people.” The formulaic reference to “health, safety, morals, welfare” in this sentence was often present in Lochner-type cases. West Coast Hotel is thus significant not for the standard it employs but for its willingness to treat the welfare of those with limited bargaining power as a legitimate concern in calculating the scope of the police power. To underscore this point, Hughes turns—for the first time in the history of United States Reports—to the concept of economic exploitation.

28

As noted by counsel, the statute was not adopted in defiance of Adkins, for it was adopted by the Washington State legislature eight years before Adkins was decided. See West Coast Hotel v. Parrish, 300 U.S. 379, 380 (1937). The very fact that the legislature passed it is nonetheless confirmatory evidence of skepticism about the merit of Lochner’s robust version of contractual freedom. 29 West Coast Hotel v. Parrish, 300 U.S. 379, 391 (1937).


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“The exploitation of a class of workers who are in an unequal position with respect to bargaining power,” he states, and are thus relatively defenceless against the denial of a living wage, is not only detrimental to their health and wellbeing, but casts a direct burden for their support upon the community. What these workers lose in wages, the taxpayers are called upon to pay. The bare cost of living must be met. We may take judicial notice of the unparalleled demands for relief which arose during the recent period of depression and still continue to an alarming extent despite the degree of economic recovery which has been achieved.30

Here, Hughes retrieves, at a relatively high level of abstraction, the theme of interconnectedness pre-Civil War judges employed when talking about the proper scope of the police power. Minimum wage legislation, Hughes can be understood to argue, is compatible with the government’s authority to promote communal well-being, for in the absence of such a provision, “taxpayers are called upon to pay” for low wages in the form of poor relief. A critic might argue that Hughes’s economic analysis is flawed. Minimum wage legislation, the critic might contend, increases unemployment, at least when the standard set is too high.31 Moreover, a libertarian critic might go further and question the government’s power to address poverty relief under any circumstances.32

30

Id. 399. For a sampling of disagreement among economists, compare the claim that the minimum wage tends to increase employment among adolescent workers, in Allison Wellington, “Effects of the Minimum Wage on the Employment Status of Youths: An Update,” 26 Journal of Human Resources 27 (Winter 1991), with the claim that a modest increase in the wage has little adverse impact on adolescent employment, in David Card and Alan Krueger, “Minimum Wages and Employment: A Case Study of the Fast Food Industry in New Jersey and Pennsylvania,” 84 American Economic Review 772 (September 1994). 32 Although there are many different types of libertarianism, they all converge on the claim that government may not legitimately interfere with the contractual relationship between an employer and his employee when the latter is in full control of his mental faculties. On this point, Robert Nozick states a bedrock libertarian principle: “If people force you to do certain work, or unrewarded work, for a certain period of time, they decide what you are to do and what purposes your work is to serve apart from your decisions” (Anarchy, State, and Utopia 172 (1974)). 31


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Hughes’s position is best understood in constitutional, not economic, terms, however. It is that government may properly consider the common welfare when overseeing market relationships. It’s arguable that Chief Justice Shaw’s Alger statement that government may adopt “regulations which are necessary to the common good and general welfare” is compatible with Hughes’s West Coast Hotel approach to the police power. But even if one were to take this position, one would have to concede that Hughes was addressing an issue never considered by antebellum jurists. It’s for this reason that West Coast Hotel can be said to recalibrate a recalibration. The Lochner line of cases rethought republican principles of government regulation; in turn West Coast Hotel rethought Lochner. In doing so, it introduces a principle never considered by the founding generation: that accumulated capital can have a coercive effect on market relationships. This principle—quite clearly the product of reappraisal of the arc of national experience—is incompatible with a robust version of contractual freedom. The principle allows for a presumptive right in this context, but it doesn’t allow for a robust one since this would have a coercive effect on those with limited means. In spring 1937, during the months that followed West Coast Hotel, the Court reassessed the scope of Congress’s commerce clause power by upholding the Wagner Act33 and by affirming the constitutionality of the Social Security Act.34 The unifying theme of these otherwise diverse decisions is to be found in the Court’s willingness to place limits on contractual freedom. Thus West Coast Hotel not only announces a principle essential to the modern welfare state, it does so by cutting back substantially on an exercise in interpretive supplementation that may not have enjoyed supermajority support at the time of the Fourteenth Amendment’s adoption. Whatever the strength of public support for free labor principles at an earlier time in the nation’s history, it was certainly clear, when West Coast Hotel was decided, that these principles didn’t command supermajority approval as applied to industrial regulation. Indeed, the Lochner

33 34

Jones & Loughlin Steel Corp. v. NLRB, 301 U.S. 1 (1937). Seward Machine Co. v. Davis, 301 U.S. 548 (1937).


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cases illustrate all too well the danger of undertaking an initiative in interpretive supplementation in the absence of clear evidence of a national trend in favor of the rights added to the text. It was plausible for the Court to move from the text’s property rights clauses to a further, unmentioned right of contractual freedom. But exegetical plausibility is merely a necessary, not a sufficient, condition for a legitimate supplementation initiative. Only when there is also concrete evidence of supermajority support in favor of this can the Court properly move from the said to unsaid. It’s because no such evidence existed on behalf of Lochner-type rights that that case and the many decided in its wake stand as object lessons in how not to supplement the text.

Post-Lochner Supplementation Options One possible lesson that might be drawn from Lochner’s eclipse is that supplementation of rights is never acceptable. This of course isn’t the lesson that would be drawn by a proponent of developmental supplementation. Nonetheless, it’s a conceivable moral of West Coast Hotel. In drawing it, one would contend that it’s permissible to move from the said to the unsaid only when the latter follows as a matter of logical entailment from the former. A more modest lesson to be drawn from West Coast Hotel is that supplementation is impermissible for distant unmentioned rights. The Lochner line of cases ventured too far from the text, it could be said, as does the emotions/sensations component of Brandeis’s right to be let alone. In contrast, this argument goes, cases that have sought to derive unmentioned rights from specific provisions have virtual homes and so involve legitimate supplementation of the text. The Court’s freedom of expression cases and those involving freedom of association might be placed under this heading. It’s arguable that a Fourth Amendment implied right for telephone conversations can be justified along these lines if one relies on Brandeis’s Olmstead analogy between sealed letters and telephone conversations.35 35

For discussion of the Brandeis analogy, see supra Chapter 7, notes 54–5 and accompanying text.


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Yet another lesson might be the one suggested at the end of the preceding section—that any exercise in rights-supplementation that moves to the distant unsaid must be supported by clear evidence of a national consensus. On this analysis, one can’t reject out of hand the possibility of a comprehensive libertarian extension of the text, one that embraces economic and expressive individualism. If someone were to adopt this third option, that person would necessarily endorse the proposition that the enumeration contained in amendments one to eight opens the door to a far-reaching program of liberty, economic and personal—but one would add that the extension must be accompanied of evidence of altered change in national practice. No justice who’s served on the Court has unreservedly endorsed the first option. Many opinions written by Justice Black come close to adopting it, for Black appeared on some occasions to have concluded that the moral of Lochner’s demise is that the judiciary may never supplement the enumeration of rights.36 But even though Black dissented in Griswold and Katz,37 he joined opinions that established an implied First Amendment right of freedom of association38 and an equal protection against the federal government.39 The most that can be said about Black, then, is that he comes closer than any modern justice to embracing the first option. Black accepted the Carolene Products conclusion that greater weight may properly be assigned to certain enumerated rights (to Fourteenth Amendment equal protection rights and to First Amendment free speech rights, for instance) than others.40 But he also accepted a limited number of unmentioned rights—the equal

36

See, e.g., Justice Black’s opinion for a unanimous Court in Ferguson v. Skrupa, 372 U.S. 726, 731 (1963), affirming the death of Lochner. Black does not, however, repudiate Hughes’s general principle, stated in West Coast Hotel, that the Constitution protects contractual freedom. See supra note 17 and accompanying text. 37 381 U.S. 509 (Black, J., dissenting); 389 U.S. 367 (Black, J., dissenting). 38 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). 39 Bolling v. Sharpe, 347 U.S. 497 (1954). 40 Black joined all but footnote 3 of Justice Stone’s opinion for the Court in United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote four of which anticipates the possibility of “more exacting judicial scrutiny” for certain mentioned rights than for others. See id. 152 n. 4.


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protection right against the federal government being a particularly prominent example of this. Numerous members of the Court have adopted the second position. Justices who’ve expressed skepticism about distant privacy rights concerning the exercise of personal autonomy have nonetheless endorsed more proximate rights concerning control over the informational sources of one’s life. Chief Justice Roberts and Justice Alito, for instance, have not commented favorably on Lawrence v. Texas but have expressed sympathy for an informational privacy right that extends beyond the one announced in Katz.41 The modest extension of communicative privacy that Brandeis proposes in his Olmstead dissent via his sealed-letter analogy has become firmly entrenched in doctrine, then. Indeed, because Justice Scalia unreservedly endorses an extension of the text from speech to communicative expression (as noted in Chapter 2), one wonders why he consistently objects to Katz’s implied Fourth Amendment right.42 No justice has endorsed the third option—yet this is the one that best characterizes the trajectory of modern constitutional law. The key case in this context is Griswold v. Connecticut, for in writing for the Griswold Court Justice Douglas commented unfavorably on Lochner only to recognize a supplementary right of marital privacy concerning contraception.43 But Douglas had a difficult time accounting for the distinction, which was essential to his Griswold conclusion, between supplementation on behalf of economic freedom and supplementation on behalf of its expressive counterpart. In contrast, the developmental framework proposed here offers a way to do so. In adopting the framework, one grants the plausibility of both supplementation options, but one insists further that only certain types of expressive individualism have become rooted 41

See NASA v. Nelson, 562 U.S. 134, 147–8 (2011). Compare Scalia’s favorable comments on communicative expression, discussed in Chapter 2 supra, notes 18–9 and accompanying text, with his dismissive approach to informational privacy: “I would simply hold that there is no constitutional right to ‘informational privacy’” (NASA v. Nelson, 562 U.S. at 159–60 (Scalia, J., concurring in part and dissenting in part)). 43 Douglas took this position in his Poe v. Ullman dissent, 367 U.S. at 509–22. 42


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in national practice.44 Lochner-type individualism, in contrast, was never incorporated into national life; it thus can’t be pronounced constitutionally legitimate today, a proponent of this position would say. The chapters that follow explain why it has been proper for the Court to reason in terms of a robust version of privacy. The Brandeis right to be let alone can be taken as a forerunner of changes in twentieth century life and so of the transformation of doctrine brought about by the modern Court. Brandeis, however, attributed his comprehensive right to “the makers of our Constitution” whereas privacy rights, I argue in the remainder of the book, should be characterized as a twentieth century extension of commitments made at the outset.

44 Numerous rights that can be placed under the heading of expressive individualism may yet achieve constitutional recognition. “A liberty to use birth control pills is protected, but a liberty to use marijuana is not,” Randy Barnett observes in Restoring the Lost Constitution: The Presumption of Liberty 233 (2004). The extended Madisonian framework proposed in Chapter 2 accounts for the difference. A liberty-claim concerning each is possible as a matter of developmental supplementation. But the right to use birth control pills can be justified in light of the pattern of legislation adopted over the course of the nation’s history. No similar pattern exists with respect to marijuana. Put differently, the extended Madisonian framework doesn’t call for enlargement of the scope of enumerated rights in light of a philosophical premise about the scope of human freedom but instead for enlargement on rights whose compatibility of with social stability is established through the arc of national experience.


Part III The Modern System of Privacy Rights


Chapter 9: Ambitious Supplementation: Griswold on Penumbral Emanations from the Bill of Rights

The modern system of constitutional privacy rights originated in Court decisions of the 1960s. Brandeis’s Olmstead dissent anticipated the possibility of a comprehensive system, but three and half decades were to pass before the Court concluded that privacy should be protected independently of property rights. Two cases were essential to this new development: Griswold v. Connecticut,1 decided in 1965, and Katz v. United States,2 decided two years later. Griswold and Katz are less than fully harmonious. Justice Stewart, a dissenter in Griswold, structured Katz in such a way that it fits awkwardly with the broad generalizations contained in the earlier case. Nonetheless, despite the effort needed to integrate the cases, it’s reasonable to speak of a coherent system of privacy rights that emerged in the wake of Griswold and Katz, one that depends, albeit implicitly, on Brandeis’s conception of a core autonomy right complemented by ancillary rights that protect seclusion and informational privacy. Modern judicial decisions protecting these facets of privacy have relied on interpretive supplementation of the text. Some extensions of 1 2

381 U.S. 479 (1965). 389 U.S. 347 (1967).

© The Author(s) 2016 W.C. Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_10

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the text have been relatively modest. The Fourth Amendment’s reference to houses, for instance, is now said to cover hotel rooms—a straightforward analogy unlikely to provoke much concern, but an extension of the text nonetheless.3 Other exercises in supplementation have been more ambitious. In declaring, for instance, that the Constitution protects “the most private human conduct, sexual behavior, in the most private of places, the home,” Lawrence v. Texas moves beyond the text’s concern for domestic privacy to protect decisional authority within the home.4 In this respect, the modern system of privacy protection relies on a rearranged bill of rights. It hasn’t undermined what was adopted at the outset. However, it’s so fundamentally transformed the patchwork protection of personal life offered by the eighteenth century text that one can’t simply speak of a one-time, ad hoc exercise in interpretive supplementation but rather of a fundamental shift in orientation, a shift that offers broad-based protection for the different facets of personal life through a combination of implied rights (an implied Fourth Amendment right concerning informational privacy, for example) and resulting rights (substantive due process rights concerning consensual sex, for instance). The modern system of privacy protection adds a new layer of freedom to the rights established at the outset. It protects the possibility of individual selfrealization, complementing res publica rights adopted two centuries earlier. This chapter examines Griswold v. Connecticut, the foundational case for modern privacy rights. Because Justice Douglas’s Griswold opinion relies on unusual imagery in reaching its conclusion—during the course of his remarks, for instance, Douglas refers to “penumbras formed by emanations from” the Bill of Rights to justify his turn to privacy5—it’s open to easy ridicule (and has, in fact, often been ridiculed6). If one looks beyond Griswold’s idiosyncratic metaphors, though, one can see 3

See Stoner v. California, 376 U.S. 483, 490 (1964). Lawrence v. Texas, 539 U.S. 558, 567 (2003) 5 Griswold v. Connecticut, 381 U.S. at 484. 6 For early criticism, see Paul Kauper, “Penumbras, Emanations, Things Fundamental and Things Forgotten: The Griswold Case,” 64 Michigan Law Review 235 (1965). For modern criticism, see Eugene Volokh, “Ridiculous Supreme Court Pronouncements,” The Volokh Conspiracy, April 4, 2012, available at volokh.com/2012/04/04/ridiculous-supreme-court-pronouncements. 4


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that Douglas merely added a new twist to a standard exercise in interpretive supplementation. His new twist was to make it seem as if privacy enjoyed a long history of constitutional protection independently of property rights, for Douglas drew on Boyd and cases decided in its wake to accord privacy a pedigree it didn’t actually possess in constitutional law. Accompanying this new twist was a by-now familiar exercise in interpretive supplementation—an exercise that extended the scope of individual rights but that didn’t acknowledge the difficult questions associated with an attempt to do so. As we have seen, Brandeis proposed a bold extension of the text in his Olmstead dissent—and did so by intimating that the criterion on which he relied was authorized by “the makers of our Constitution.”7 Douglas’s Griswold remarks are no more (or less) disingenuous than those of Brandeis. During the course of the chapter, I set aside the rhetoric of permanence on which Douglas relies by subjecting his comments to the whether and how questions essential to any honest exercise in interpretive supplementation. The verdict, I suggest here, favors Douglas. When evaluated from the standpoint of the extended Madisonian framework that informs developmental constitutionalism, Griswold is relatively sound. It properly supplements the text, I argue during the course of the chapter, adding rights appropriate to the liberal polity that has emerged from the republican one established at the outset. The chapter consists of two sections. The first analyzes Griswold in light of the premises of developmental constitutionalism. The right of marital privacy recognized in the case is a paradigmatically modern one, I contend: it is a right that makes sense only if one reasons in terms of a model of companionate marriage, not a model of patriarchal domination. It’s this modern feature of marital privacy, I suggest, that makes Griswold a sound decision for the twentieth century—and also an appropriate decision for launching the Court’s supplementation of the text on behalf of personal life. In the second section, I build on this point by outlining the structure of the modern system of privacy rights. Griswold doesn’t map

7

For analysis of Brandeis’s Olmstead exercise in supplementation, see supra Chapter 7.


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out the new system. But because it’s the catalyst for its development, one can reasonably say that Griswold stands for the premise that courts should reason not in terms of one specific facet of privacy but instead in terms of a body of mutually reinforcing rights that enhance the prospect of personal flourishing free of intrusion by the state.

The Griswold Exercise in Developmental Supplementation Although Lochnerism came to an end with West Coast Hotel v. Parrish,8 Lochner’s ghost has continued to haunt the Court. This is because the legitimacy of all exercises in interpretive supplementation of rights was called into question by Lochner’s repudiation. Justice Douglas’s opinion for a unanimous Court in Olsen v. Nebraska, a 1941 case, comes close to endorsing an absolute ban on supplementation. “Differences of opinion” concerning public policy “should be left where . . . [they were] left by the Constitution—to the states and to Congress,” Douglas states in Olsen. As long as the text is silent on a given issue, standards and principles pertinent to that issue “should not be read into the Constitution.”9 Olsen was concerned with a freedom of contract question, so it remained possible for members of the Court to reject Lochner-type interpretive textual supplementation for market relationships but to embrace this for non-economic issues. Even here, though, Lochner’s ghost exerted a hold over the justices. Its influence is discernible in Goldman v. United States, a 1942 case concerned with a non-trespassory surveillance operation only modestly different in character from the one considered in Olmstead. At stake in Goldman was the admissibility of evidence obtained by use of a detectaphone that had been attached to a wall to overhear conversations conducted in an adjoining office. Holding that “no reasonable or logical distinction can be drawn between what federal agents did in the present case and state officers did in the 8 9

300 U.S. 379 (1937), discussed supra in Chapter 8, notes 28–30 and accompanying text. Olsen v. Nebraska, 313 U.S. 236, 246 (1941).


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Olmstead case,” the Court treated Olmstead as controlling.10 It thus rejected the possibility of adopting even the modest exercise in interpretive supplementation (i.e., treating conversations as equivalent to papers and effects) Brandeis had advocated in his dissent. Justices Black and Douglas, both appointed to the Court in the 1930s following Lochner’s demise, joined Goldman, thereby signaling their skepticism of any effort to supplement the text’s range of rights. Douglas eventually defected on this issue—but Black didn’t. Douglas announced his new position in a dissenting opinion in On Lee v. United States, a 1952 case concerned with the admissibility of evidence secured when an undercover agent secretly records conversations with another person. In formulating his dissent, Douglas might have distinguished Olmstead and Goldman—and so argued that a special constitutional rule should be announced for recording conversations during face to face encounters. Douglas completely reversed course, however. “I now more fully appreciate the vice of the practice spawned by Olmstead and Goldman,” he wrote. “Reflection on them has brought new insight to me. I now feel that I was wrong in the Goldman case. Mr. Justice Brandeis in his dissent in Olmstead espoused the cause of privacy—the right to be let alone. What he wrote is an historic statement of that point of view. I cannot improve on it.”11 For Douglas, the conceptual route from this On Lee statement to his majority opinion in Griswold was a short one: On Lee was concerned with electronic surveillance, but in endorsing Brandeis’s comments Douglas became the standard bearer on the mid-century Court for an initiative in interpretive supplementation that would protect privacy generally. Given Lochner, the challenge Douglas confronted—a challenge that continues to matter today—was to explain why this exercise in interpretive supplementation is constitutionally legitimate while the one undertaken on behalf of contractual freedom is not. Griswold provided him with an opportunity to do so. At stake in the case was the constitutionality of an 1879 statute adopted by the

10 11

Goldman v. United States, 316 U.S. 129, 135–6 (1942). On Lee v. United States, 343 U.S. 747, 762–3 (1952) (Douglas, J., dissenting).


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Connecticut State Legislature in the wake of a campaign led by Anthony Comstock’s Society for the Suppression of Vice that prohibited the use (not merely the possession) of contraception by anyone, married or single. Connecticut Planned Parenthood campaigned, unsuccessfully, throughout the early twentieth century to secure legislative repeal of the statute. During this period, it also sought—again successfully—court rulings that would hold the statute unconstitutional.12 In Griswold, it finally achieved its goal. Douglas’s brief opinion of the Court (it takes up only eight pages of United States Reports) can be divided into three sections: an initial one that attempts to distinguish Lochner-type issues from those bearing on personal life, an extended exercise in interpretive supplementation, and a peroration that emphasizes the ancient pedigree of the marital right of privacy. Each merits consideration on its own. Lochner’s Ghost After explaining why the case was justiciable, Douglas turned to Lochner. “Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment,” Douglas wrote. “Overtones of some arguments [advanced in case briefs] suggest that Lochner v. New York should be our guide,” he wrote. But we decline that invitation, as we did in West Coast Hotel v. Parrish [and] Olsen v. Nebraska. . . . We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.13

Douglas’s reference to a super-legislature is an obvious swipe at Lochner. Standing alone, though, it isn’t sufficient to support a credible distinction between the exercise in supplementation undertaken in Lochner and the 12 For analysis of the statute’s adoption and of Connecticut Planned Parenthood’s efforts to secure its legislative repeal and, in the alternative, to have it declared unconstitutional, see David Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade 10–195 (1994). 13 381 U.S. at 481–2.


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one in Griswold, for someone might argue (as Justices Black and Stewart actually did in their Griswold dissents) that Douglas’s opinion for the Court performed the distinctly un-judicial task of evaluating the “wisdom, need, and propriety” of the Connecticut anti-contraception statute in much the same way that the Lochner Court had evaluated the wisdom of New York’s maximum hours legislation.14 But if Douglas’s super-legislature remark didn’t banish Lochner’s ghost, another one had the promise of doing so. This other remark was concerned with the contrast between legislation that touches on “economic problems, business affairs, or social conditions” and legislation concerned with “an intimate relation of husband and wife.” It’s here that we encounter the boundary line that informs Griswold and all subsequent cases concerned with the exercise of autonomy in personal life. Lochner addresses conduct in the public realm—in particular, contractual relations between employers and employees. Griswold is concerned with private life: with activities typically undertaken in the home (and so the subject of a seclusion interest) and rarely discussed with outsiders (and so the subject of an informational privacy interest). It’s often unwise to think in terms of a stark binary that distinguishes between public, market-based transactions and private, intimate relationships. Nonetheless, it’s reasonable to posit, at least for purposes of limiting the reach of state power, a relatively clear line of demarcation in this context—and so to treat privacy as a subject separate from economic life. In relying on this, one distinguishes between behavior considered intrinsically valuable (and so worthy of special constitutional protection) and behavior considered instrumentally valuable because of its economic ramifications (and so worthy of lesser protection). Needless to say, this is a distinction that resonates strongly in contemporary life. An eighteenth century intimation of it can be found in Lord Camden’s Entick v. Carrington characterization of personal papers

14 Black argued that Douglas’s reasoning tracked that of the Lochner line of cases. See 381 U.S. at 514–15 (Black, J., dissenting). Stewart’s dissent approvingly quotes the Court’s remark that “[w]e have returned to the original constitutional proposition that courts do not substitute their social economic beliefs for the judgment of legislative bodies, who are elected to pass laws” (381 U.S. at 528 (Stewart, J., dissenting), quoting Ferguson v. Skrupa, 372 U.S. 726, 730 (1963)). Black joined Stewart’s dissent and Stewart joined Black’s.


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as their owner’s dearest property.15 But the drumbeat of reflection on interiority began after the time of the founding—in commentary by writers such as Emerson, Thoreau, and Whitman, to return to an issue considered in Chapter 6.16 Because concern with privacy as a critical dimension of freedom didn’t become entrenched in American life until the mid- to late-nineteenth century, it achieved recognition in constitutional doctrine only in Boyd’s 1886 reference to “the privacies of life.” As even a superficial reading of Douglas’s citations makes clear, the glosses he mentions are all drawn (Boyd excepted, of course) from twentieth century judicial commentary, so it can’t be said that he demonstrates that American judges were interested in privacy from the time of the founding. Once this historical qualification is taken into account, though, one can further note that Douglas’s inventory of judicial commentary on privacy organized ideas as no Court opinion previously had, thereby making it possible to grasp the breadth of the new value that had emerged since the late nineteenth century. Penumbral Emanations from the Bill of Rights Douglas classifies exercises in interpretive supplementation as penumbral emanations from the text. The terminology is unfortunate, for it suggests an actual radiation from the text, one that’s discovered by judges and not merely posited by interpreters. If we discount this point (and so say that Douglas inventories prior commentary on the text while also avoiding the term substantive due process that had become an object of opprobrium in the wake of Lochner’s demise), we can say that Griswold offers a persuasive account of the way in which members of the late nineteenth and early twentieth century Court attributed a concern to the Constitution that hadn’t been entertained by the framers. Douglas begins his inventory by considering rights having to do with freedom of association. “The association of people is not mentioned in the Constitution nor in the Bill of Rights,” Douglas notes. “Nor is the right to study any particular subject or any foreign language.” Nonetheless, he

15

For analysis of Camden’s comment, see supra, Chapter 6 note 15 and accompanying text. For commentary on the American transcendentalists’ reflections on interiority, see supra Chapter 5, notes 27–34 and accompanying text.

16


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adds, “the First Amendment has been construed to include certain of these matters.”17 These are “peripheral rights,” Douglas asserts, but peripheral in a special sense, for they were recognized not simply because they have an affinity with something mentioned in the text but because they safeguard that which is mentioned. It’s for this reason that peripheral is apt but penumbral problematic. A right of association doesn’t radiate out from the text. Rather, it’s imputed to it on teleological grounds— i.e., by saying that free speech rights wouldn’t be meaningful unless one also reasons in terms of a right of freedom of association. This teleological framework is particularly important for the next implied right Douglas discusses: an implied First Amendment right that can be asserted by members of an organization to block disclosure of its members. The Court accounted for this right by means of a two-step means/ends analysis: an initial step that recognizes how associational freedom promotes free speech values, and a further step that recognizes how a right to deny access to membership lists promotes associational freedom. Thus the term penumbra is particularly unfortunate here, for the Court used X (an informational privacy right to block disclosure of an organization’s lists) to promote Y (a right to participate in the organization under investigation) to promote Z (the free speech right possessed by the organization’s members). Nonetheless, Douglas relies on penumbra-imagery here. “In other words,” he writes, “the First Amendment has a penumbra where privacy is protected from government intrusion”—an unobjectionable claim provided one recognizes that the subject of concern isn’t something that can be seen to radiate from the text (a penumbra) but instead a derivation from it based on teleological reasoning.

381 U.S. at 482–3. Douglas cites the following for “the association of people”: NAACP v. Alabama, 357 U.S. 449 (1958); for “the right to study any particular language or foreign subject”: Meyer v. Nebraska, 262 U.S. 390 (1923); for “the right to educate a child in a school of the parents’ choice”: Pierce v. Society of Sisters, 268 U.S. 510 (1925). The latter two cases were resolved not by reference to the First Amendment but by reference to the Fourteenth Amendment due process clause. They are leading examples of the application of substantive due process reasoning from the Lochner era as this is applied to non-market liberties. The fact that Douglas relied on them in Griswold underscores the affinity between his method of interpretive supplementation and the Lochner framework.

17


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Douglas’s discussion of interpretive supplementation of the First Amendment prepares readers for his real concern: extension of the range of rights to include decisional autonomy for a married couple concerning contraception. “The foregoing cases,” he writes (while referring to First Amendment decisions), “suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” In applying this general point to contraception-use, Douglas mentions the Third, Fourth, and Fifth Amendments—provisions for which he proposes a penumbral right of marital sexual privacy. Boyd states that the Fourth and Fifth Amendments protect “the privacies of life,” Douglas notes. Mapp v. Ohio recognizes a penumbral Fourth Amendment right to the exclusion of illegally seized evidence. Moreover, Douglas adds, there are “penumbral rights of ‘privacy and repose’” bearing on the home as well as freedom from intrusion in public places.18 There is a good reason to be skeptical about Douglas’s attempt to emphasize the similarity between interpretive supplementation of the First Amendment and supplementation of the Third, Fourth, and Fifth Amendments. First Amendment freedom of association exercises in supplementation rely on relatively tight teleological premises. In 18

381 U.S. at 484. Douglas cites no Third Amendment case to support his argument, an understandable omission given the fact that none of any relevance to residential privacy had been decided concerning its scope. As for the Fourth and Fifth Amendments, his key citation is Boyd on “the privacies of life”: 116 U.S. 616, 630 (1886) and Mapp, 367 U.S. 643, 656 (1961). His “privacy and repose” citations rely on Breard v. Alexandria, 341 U.S. 622, 626 (1951), a decision (reached over his dissent) that reasons not in terms of a right of residential privacy but instead a state interest in protecting this, and his solo dissent in Public Utilities Commission v. Pollak, 343 U.S. 451, 468 (1952), where he argued in favor of a passenger’s constitutional right not to be exposed to recorded music while riding a District of Columbia bus. Another case cited as pertinent to “privacy and repose,” Frank v. Maryland, 359 U.S. 360 (1958), was also the subject of a Douglas dissent. In yet another, Lanza v. New York, 370 U.S. 139 (1962), Douglas joined the Court’s majority opinion rejecting a Fourth Amendment claim concerning the constitutionality of electronic surveillance of a public area in which a prisoner spoke to his brother. The final case cited, Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), is concerned with the state’s authority to require sterilization—and so has only a distant relation to residential privacy. Douglas’s concluding statement that the cases cited “bear witness that the right of privacy which presses for recognition here is a legitimate one” (381 U.S. at 485) thus relies on a string of dissenting opinions plus majority opinions that have no clear relevance to residential privacy.


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contrast, the decisional autonomy right Douglas proposes by way of supplementation relies on only a moderately suggestive claim about the similarity between what’s said and what isn’t. That is, Douglas advocates an unconditional marital autonomy right to use contraception, but the textual platform he employs offers only conditional protection for residential privacy. There are, after all, numerous activities (printing counterfeit money, for instance, or sexually molesting a child) that are properly classified as illegal even if conducted inside a home, so it’s unconvincing to suggest that because the text offers (conditional) protection for residential privacy it also offers (unconditional) protection for activities undertaken within it. As if in acknowledgement of this problem, Douglas circles back to the Fourth Amendment later in his opinion. “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” he asks. “The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”19 This question suggests a stronger affinity between the different types of privacy than the one previously considered. If the Fourth Amendment protects an unconditional seclusion interest in a particularly private place (the marital bedroom) when a search aims at discovering “telltale signs” of contraception use, then certain kinds of activities—activities deemed intrinsically private—should be wholly immune from government regulation. Put differently, Douglas’s rhetorical question emphasizes the convergence of the different types of privacy when intimate activity is at issue. In this respect, it draws on everyday speech, which not only treats sex as private but assumes that it will be conducted in private and will later be the subject of informational privacy. Griswold, in other words, accords constitutional standing to an activity at the intersection of these different types of privacy. Because the overlap just mentioned offers a plausible way to extend the scope of rights, the objection just raised about the conditional nature of seclusion and informational control can be dismissed as far as marital sex is concerned. It can’t be swept aside in all cases: there are many

19

381 U.S. at 484–5.


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occasions when the home (and even the marital bedroom) can properly be searched for evidence of crime. In this instance, though, the Douglas reference to “the sacred precincts of the marital bedroom,” grounded in assumption that husband and wife engage in consensual sex, carries substantial force. Indeed, the objection Justices Black and Stewart raise in their Griswold dissent—that Douglas substitutes the word privacy for explicit constitutional language and then uses the substituted concept to produce a new right20—is unpersuasive as far as consensual marital sex is concerned. If the police know in advance that the purpose of a search of the marital bedroom is for evidence of contraception use, then the search shouldn’t be conducted since this is an impermissible invasion of privacy (in multiple senses of the term). Developmental Supplementation: The Griswold Peroration Or at least the search impermissibly invades privacy when marriage is considered in light of modern understandings concerning it. Douglas inadvertently raises the question of the historical standing of the Griswold right in his peroration. “We deal here with a right of privacy,” Douglas states, older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together, for better or worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.21

A “right of privacy older than the Bill of Rights”? The problem with this claim isn’t simply that the framing generation didn’t reason in terms of privacy. It is that the content of the right to which Douglas appeals can’t be formulated in terms compatible with eighteenth century marriage law. There were of course many companionate eighteenth century marriages—that is, many unions in which husbands and wives participated as equals in making decisions about their lives together. Anglo-

20 21

381 U.S. at 510 (Black, J., dissenting). 381 U.S. at 486.


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American law, however, didn’t require husbands to reason in this way. On the contrary, it treated wives as subordinate to their husbands. “[T]he very being or legal existence of the woman is suspended during marriage, or at least is incorporated and consolidated into that of the husband,” Blackstone stated in outlining the doctrine known as coverture, “under whose wing, protection, and cover she performs everything.”22 Griswold doesn’t take coverture into account. Douglas’s opinion speaks of a pre-constitutional institution (marriage) but ignores the patriarchal conception of this institution entertained by legal authorities at the time of the founding. To note this point isn’t to establish that the Griswold right is constitutionally illegitimate. It does, however, suggest that Griswold is sound now but might have been considered problematic then. The Griswold right is sound, in other words, in light of a conception of heterosexual marriage in which partners jointly decide on issues of contraception—but it’s questionable in light of coverture’s patriarchal conception of marriage, for under this conception a wife’s legal existence is “incorporated or consolidated into” that of her husband, who either may wish for children even when the wife doesn’t or may want to avoid the inconvenience of using contraception. Summarizing, we can say that four points need to be considered to justify Griswold’s conclusion. First, Griswold announces a resulting right—i.e., a right derived not from any one specific provision but from intimations of a concern with privacy discernible in numerous portions of the text. Second, Douglas properly relies on long-standing assumptions about whether an interpreter may venture beyond the text. And third, Douglas answers the question of how to extend the text by noting a plausible rationale for moving from the said to the unsaid in his discussion of “the sacred precincts of marital bedrooms.” But fourth, a modern premise about the nature of marriage has to be employed to support the specific exercise in supplementation at stake in Griswold. It’s only because coverture had become a vestige of the past that a married woman’s right to use contraception can be classified as

22

1 William Blackstone, Commentaries on the Laws of England 442 (1979 facsimile ed. [1765]).


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constitutionally legitimate. On this analysis, Griswold relies on an exercise in developmental supplementation. Douglas’s remarks don’t concede this point. On the contrary, they rely on the rhetoric of permanence in much the same way that Brandeis does when speaking of the right to let alone. But even though the soundness of the Griswold right can’t be established by the misleading provenance Douglas attributes to it, its legitimacy can readily be established by reference to modern legislative trends. By the mid-twentieth century, coverture legislation was disappearing throughout America; the last coverture statute was adopted by the Georgia legislature in 1935.23 Moreover, the 1879 Connecticut statute declared unconstitutional in Griswold was only one of two that remained in effect by 1965.24 The extended Madisonian framework thus accounts for the soundness of Griswold’s developmental supplementation of the text. The framers may have reasoned in terms of a legal framework of patriarchal marriage, but by the mid-twentieth century the model of companionate marriage that informs Griswold enjoyed nearuniversal acceptance while the Comstock-era effort to prop up the nation’s moral fiber was quite clearly unnecessary to preservation of the social order.

The System of Privacy Rights in Modern Constitutional Law Griswold’s specific concern is marriage, but its ramifications extend far beyond the right it announces. This is because Griswold relies not simply on a modern conception of marriage but also on a modern specification of rights. Douglas’s opinion doesn’t set aside the republican principles that inform the original inventory contained in amendments one to eight. Rather, Griswold modernizes the Constitution. It does so by building out from the text. Because many prior judicial decisions had also 23

See Georgia Code Annotated Sect. 53-501 (1935). For Massachusetts’s post-Griswold revision of its statute, see Garrow, Liberty and Sexuality, supra note 12, at 269. 24


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announced supplementary rights, Griswold is distinctive because of the ambition that informs its enlargement on expressly mentioned rights. The very character of constitutional reasoning has been transformed as a result of this. If Griswold is legitimate, its exercise in developmental supplementation is also legitimate, thus making it essential to consider two different modes of constitutional interpretation: the standard one that seeks to discover rights in the text and the modern one identified with Griswold supplementation, in which judges discern rights attributable to the text when reasoning in terms of the trajectory of national change. Earlier chapters have analyzed the Madisonian framework essential to developmental supplementation. The remainder of this chapter concentrates on the coherence of the regime of privacy rights that emerged in Griswold’s wake. The rights at stake are analytically distinct, a point that can be understood by considering variations on Griswold’s facts. Imagine, for instance, that a married couple insists on a right to have contraceptive-based sex but nonetheless waives their right to informational privacy by announcing what they’ve done. Or imagine that a married couple forgoes their seclusion right by having contraceptivebased sex in a public place—on a deserted beach, for instance. These are scenarios in which the three types of privacy diverge. But while it’s possible to imagine scenarios such as these and so to establish that the rights are distinct, this doesn’t mean that courts should disregard their mutually supportive character. Judges should emphasize, in other words, the way in which the convergence of seclusion and informational control typically promotes the exercise of autonomy in personal life. This straightforward point is the defining premise of the modern system of privacy rights. Table 9.1 emphasizes the interlocking character of the system’s rights. Although the table is organized in terms of the tripartite distinction mentioned earlier, it also divides informational control into two sub-categories, one having to do with the acquisition, the other with the disclosure, of personal information. The categories mentioned in the left column are critical to the new regime of privacy rights. They are not, however, the categories employed in the Bill of Rights. That is, Table 9.1 imposes modern concepts on eighteenth century provisions. The new regime relies not on the phrase searches and seizures of houses; rather, it employs the more capacious


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Table 9.1 An interlocking system of constitutionally protected privacy rights: The mid-twentieth century synthesis Facet of privacy

Pertinent provisions

Pertinent cases

(1) Decisional authority over the course of one’s personal affairs

Aggregated effect of the Bill of Rights

Griswold v. Connecticut, 381 U.S. 479 (1965)

(2A) Control over acquisition of information pertinent to one’s life

First Amendment

NAACP v. Alabama, 357 U.S. 450 (1958) Katz v. United States, 389 U.S. 347 (1967) Tehan v. Schott, 382 U.S. 406 (1966)

Fourth Amendment Fifth Amendment

(2B) Control over disclosure of personal information possessed by the government

Aggregated effect of the Bill of Rights

Whalen v. Roe, 429 U.S. 589 (1977)

(3) Residential privacy

First Amendment

Stanley v. Georgia, 394 U.S. 557 (1969) Engblom v. Carey, 677 F.2d 957 (CA 2, 1982) Stoner v. California, 376 U.S. 483 (1964)

Third Amendment Fourth Amendment

category residential privacy.25 The new regime goes beyond the term searches . . . of persons, papers, and effects and instead relies on informational privacy.26 And it relies on autonomy, a term with connotations concerning self-governance that are considerably more complex than liberty, when talking about rights bearing on sex.27 What interpreters have treated as latent concerns of the text now operate as the manifest categories of modern doctrine. Given this seismic conceptual shift, it’s now reasonable to speak of the possibility of comprehensive constitutional privacy protection—a possibility, not an actuality, it should be emphasized, since there 25

See, e.g., United States v. Karo, 468 U.S. 705, 714 (1984). See also United States v. Dunn, 480 U.S. 300, 303 (1987). 26 See, e.g., NASA v. Nelson, 562 U.S. 134, 144 (2011). 27 See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).


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are many shortcomings in the system of privacy rights as announced in modern judicial decisions, but a non-utopian possibility given the reorientation of constitutional law initiated by Griswold. Protecting the Exercise of Autonomy in Personal Life Post-Griswold comments about the exercise of autonomy illustrate the degree to which the modern system of privacy rights relies on categories not mentioned in the text. “The Constitution promises liberty to all within its reach,” the Court remarks at the beginning of Obergefell v. Hodges, the 2015 case that recognizes a right of same-sex marriage, “a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”28 In Lawrence v. Texas, the 2003 case that decriminalizes sodomy, the Court spoke of “the respect the Constitution demands for the autonomy of person. . . . ”29 And in Planned Parenthood v. Casey, a 1992 abortion rights case, the Court talked expansively about the Constitution’s protection of personal autonomy. “These matters,” it said—i.e., matters having to do with the decision whether to bear a child— involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected to the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.30

If the heart of liberty consists of the right to define one’s own concept of existence, what is one to make of the inventory of individual rights provided in the Constitution? The answer is that the modern system of privacy rights reconceives the nature of liberty, accentuating intimacy and personhood in ways that weren’t deemed critical by the founding generation. It’s because these unmentioned concepts now

28

Obergefell v. Hodges, 135 S.Ct. 2584, 2590 (2015). Lawrence v. Texas, 539 U.S. 558, 574 (2003). 30 Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992) 29


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serve as the basis for the elaboration of further rights that the system of modern privacy rights is by far the most ambitious exercise in supplementation ever undertaken by the Court. Emerson asserted that “[t]he private life of one man shall be a more illustrious monarchy . . . than any kingdom in history.”31 In modern America, Emersonian themes of authenticity and self-reliance reverberate throughout constitutional law. Before turning to other facets of the system of privacy rights, we should pause to consider the twin premises essential to Griswoldinspired supplementation: a negative premise that it’s inappropriate to supplement the text on behalf of rights of economic individualism and a positive premise that it’s appropriate to do so for the sake of expressive individualism. Casey’s statement about “the heart of liberty” affirms the latter premise, for if liberty’s core is identified with activities associated with authentic self-actualization, then of course judicial extension of rights along these lines is warranted rather than their extension in favor of market-based transactions. But this is a debatable point. Moreover, it’s a point that has never been the subject of Article V deliberation, so the warrant for it must be that the turn to privacy was “a construction put on the Constitution by the nation” (to use Madison’s phrase32) whereas Lochner-type rights were decisively repudiated in the first third of the twentieth century. Each exercise in supplementation is plausible, in other words, but the legitimacy of privacy rights (and the illegitimacy of Lochner supplementation) can be established only by considering the course of national history. A robust system of property rights, the public concluded during the course of the early twentieth century, impedes government efforts to address concentrations of capital. Privacy rights pose no such problem. Although fears at one time abounded about sexual licentiousness

Ralph Waldo Emerson, “The American Scholar,” in Peter Norberg, ed., Essays and Poems of Ralph Waldo Emerson 63 (2004), discussed supra in Chapter 6 note 32 and accompanying text. 32 For analysis of Madison’s use of this phrase, see supra Chapter 1, note 35 and accompanying text. 31


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(Comstock’s anti-vice campaigns stoked this fear), a supermajority consensus had emerged by mid-century that this does not pose a substantial threat to the social order. This said, it’s essential to concede that the categories “at the heart of liberty”—autonomy, personal dignity, intimacy, identity-formation— have contestable boundaries and so provide less than clear guidance for the elaboration of privacy doctrine. Indeed, the distinction (central to the modern regime of privacy rights) between the intrinsically important character of self-realization and the instrumental character of market-based transactions isn’t always workable in practice. It’s possible, after all, to commodify sex. Moreover, someone might claim that he expresses his authentic self in a market setting. But even though the boundary here is less than firm, courts can deploy it without substantial difficulty while working out the ramifications of the Griswold turn to privacy. This is because it makes sense in many cases to emphasize the difference between intimate activity undertaken for its own sake and activity undertaken to secure a pecuniary gain. No personal-autonomy case of the post-Griswold era has attempted to identify the full range of activities that fall in the former category. Rather, the Court has limited itself, as it did in Obergefell, to “certain specific rights that allow persons, within a lawful realm, to define and express their identity.”33 Obergefell’s reliance on the hedging adjective certain should not be criticized as an exercise of judicial cowardice. Rather, it underscores a core feature of a regime of unenumerated constitutional rights—that their legitimacy cannot be established by reference to a philosophical theory about the proper relationship of the individual to the state but by reference to a trajectory of national experience that unfolds in the shadow of commitments made at the outset. It’s by considering this point that one can distinguish between moral and constitutional claims concerning personal autonomy. A moral claim along these lines is grounded in a

33

For an examination of the anarchist critique of state efforts to limit sexual freedom, see Jamie Heckert and Richard Cleminson, “Ethics, Relationships, and Power: An Introduction,” in Heckert and Cleminson, eds., Anarchism & Sexuality: Relationships and Power 4–6 (2011).


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framework—one that appeals to anarchistic principles,34 for instance, or to those of libertarianism35 or liberalism36—that takes a stand concerning the scope of government authority. A constitutional claim relies on a different foundation. It begins by establishing affinities between mentioned and unmentioned rights, and it holds that potential rights merit recognition only when they’re rooted in a post-founding consensus. This possibility allows for rights-emergence, but it doesn’t insist on recognition of new rights merely because these are sound in light of a philosophical framework concerning the scope of political authority. The possibility of a right to physician-assisted suicide serves as a helpful illustration of this point. When the Court took up this issue in Washington v. Glucksberg, a 1997 case, only one state (Oregon) had adopted legislation permitting doctors to aid terminally ill patients who wished to hasten death.37 It thus would have been unsound, given the extended Madisonian framework, for the Court to have upheld the rightsclaim at stake in Glucksberg. Viewed from the standpoint of John Stuart Mill’s harm principle38 (to cite a well-known example of a comprehensive philosophical theory concerned with the relationship of the individual to the state), the proper resolution of the case would have been to authorize doctors to aid dying patients who wanted their services. But to make 34

For an examination of the anarchist critique of state efforts to limit sexual freedom, see Jamie Heckert and Richard Cleminson, “Ethics, Relationships and Power: An Introduction,” in Anarchism & Sexuality: Ethics, Relationships and Power 4–6 (2011). 35 For a libertarian argument in favor of physician-assisted suicide, see Elizabeth Price Foley, And Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality 166–9 (2008). 36 For an argument grounded in liberal political theory that supports euthanasia under limited circumstances, see Ronald Dworkin, Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom 193–5 (1993). 37 Oregon voters approved Measure 16, the Death with Dignity Act, by a 51.3 to 48.7 margin in November 1994. See ORS 127.800-995. In November 1997, they rejected by a 60-40 a measure that would have repealed it. 38 “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Mill remarks. “His own good, whether physical or moral, is not a sufficient warrant” (On Liberty Chap. 1 (1859)). Mill’s comments might be said to recognize a right to commit suicide but not a right to a physician’s assistance in doing so. But this is surely too narrow a reading of his framework. If A has a right to kill herself, B may choose to assist her in doing so.


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Mill’s ideas (or those of any other philosopher) into a source of constitutional law is to set aside the respect for collective consensus essential to the Madisonian approach to interpretive supplementation. The appropriate resolution of the issue posed in Glucksberg, then, would have been to reject the rights-claim raised in the case but to allow for its possible recognition at a later time.39 With 20 years having passed since the case was decided, only three more states (California,40 Vermont41 and Washington42) have joined Oregon in permitting physician-suicide, so the most that can be said in this context is that a right, whose contours would have to be identified in the course of national debate, may yet be accorded constitutional standing. “Certain specific rights,” in other words, may yet be added to the constitutional canon bearing on “the most intimate and personal choices a person may make in a lifetime,” to fuse Obergefell’s cautious comments about the possibility of extending the bill of rights with Casey’s characterization of the domain of personal autonomy, but it’s essential to add that the justification for the rights that may emerge can’t rely on a philosopher’s reflections on the bounds of liberty.

39

All nine members of the Glucksberg Court rejected the rights-claim advanced in the case. 521 U.S. 702 (1997). Chief Justice Rehnquist’s majority opinion did so on grounds that precluded future recognition of the right, holding that unmentioned rights can receive constitutional standing only when they are “‘deeply rooted in this Nation’s history and tradition’ . . . and ‘implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed’” (Id. 721). Had the Court continued to adhere to this approach to substantive due process rights, the claim to consensual sodomy advanced in Lawrence v. Texas, 539 U.S. 538 (2003), would have been rejected. As noted in infra Chapter 12, notes 19–22 and accompanying text, the Lawrence Court disregarded Glucksberg’s formula and adopted instead one that focuses on the trajectory of national change. Justice Souter’s concurrence in the judgment of the Glucksberg Court allows for the possibility of recognizing a right to physician-assisted suicide on a future occasion. Id. 750. 40 See Patrick McGreevy, “After Struggling, Jerry Brown Makes Assisted Suicide Legal in California,” Los Angeles Times, October 5, 2015, available at www.latimes.com/local/political/lame-pc-gov-brown-end-of-life-bill. 41 See Terri Hallenbeck, “Vermont End-of-Life Bill Heads to Governor,” Burlington (Vt.) Free Press, May 14, 2013, available at www.usatoday.com/story/news/politics/2013/05/14/vermontphysician-assisted-death-bill/2157333. 42 See The Washington Death with Dignity Act, 70.245 RCW (2008).


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Informational Privacy: Acquisition and Disclosure of Matters Pertinent to Each Individual’s Personal Affairs If a modern committee were designing the Constitution from the ground up, an autonomy right would almost certainly be complemented by one protecting people from arbitrary government interference with the informational traces of their lives. Needless to say, the eighteenth century text doesn’t contain the word information. Certain provisions offer indirect protection against information-acquisition. None, however, addresses this issue comprehensively. Moreover, nothing in the text has a direct bearing on informationdissemination. Given the framers’ lack of interest in the subject, Justice Scalia has argued, the Court should “simply hold that there is no constitutional right to ‘informational privacy.’”43 Court majorities have consistently reasoned otherwise. Modern opinions have recognized rights to resist government acquisition of personal information through deployment of the First, Fourth, and Fifth Amendments. Furthermore, ever since Whalen v. Roe, a 1977 decision, majority opinions have spoken of a constitutionally protected interest, located in the Fifth and Fourteenth Amendment due process clauses, “in avoiding the disclosure of personal matters.”44 The driving force for this enlargement of rights has been conceptual. That is, a category understood to be critical to liberty in the modern world—informational privacy—has been superimposed on the text’s actual categories. Privacy rights, in other words, rely on exercises in developmental supplementation that have modernized the contours of constitutional law. No case illustrates better than Whalen the interconnectedness of the different facets of privacy rights, for Whalen addresses a gap in the privacy regime initiated by Douglas’s Griswold decision. In commenting critically on the Whalen right, Justice Scalia has stated that “[c]ourts should not use the Due Process Clause as putty to fill up gaps they deem unsightly in the protections provided by other constitutional provisions.”45 In one respect, Scalia’s putty imagery is apt. In another,

43

NASA v. Nelson, 562 U.S. 159, 162 (2011) (Scalia, J., concurring in the judgment). Whalen v. Roe, 429 U.S. 599–600 (1977). 45 NASA, 562 U.S. at 162. 44


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it’s inappropriate, for provided someone agrees that “the heart of liberty” is the right to define “one’s sense of existence,” then one also should agree on the need for a cluster of rights that protect the exercise of autonomy, another cluster that guards against government acquisition of information that could chill the exercise of autonomy, and yet another cluster that guards against disclosure of information already in the government hands. It’s hardly surprising that this third facet of privacy protection was announced last. It’s ancillary to the others—and so was fashioned out of the due process clause (as doctrinal putty—to give Scalia his due) to round out the system of privacy protection. Whalen is important for another reason. This is because its use of the adjective personal suggests that the domain with which it’s concerned doesn’t extend to all information bearing on individual conduct. Some facts about a person’s conduct come uncontroversially under Whalen’s “personal matters” heading—medical and financial records, for instance, as well as reports on sexual activity. Some appear to lie outside it (driving to the supermarket or walking on the sidewalk) and some seem to fall in between (retreating from a group to make a cell phone call or expressing a political opinion to a stranger). If informational privacy protection (whether related to the acquisition of data or its dissemination) is the handmaiden of autonomy rights, it’s essential for rule-makers to address the boundary issues associated with terms such as intimate data, private facts, and sensitive information. In its common law guise, it should be recalled, the Brandeis right to be let alone was concerned with public disclosure of private facts.46 Opinions issued by the modern Court have carefully avoided addressing questions about the scope of a First Amendment right to publish truthful, but embarrassing, facts about an individual’s personal life.47 Given these opinions, it’s enough to affirm

46 The formulation is William Prosser’s. See his “Privacy,” 48 California Law Review 383, 389 (1960). 47 “We do not hold that truthful publication is automatically constitutionally protected, or that that there is no zone of personal privacy within which the State may protect the individual from intrusion by the press, or even that the State may never punish publication of the name of a victim of a sexual offense,” the Court remarked in Florida Star v. BJF, 491 U.S. 524, 541 (1989), the leading modern case on the subject. The cautious statement just quoted underscores the fact that


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here the point made earlier about the Brandeis right—i.e., that in incorporating it into constitutional law it would not only serve as a limitation on government interference with personal life, it would also serve as a restraint on the free press rights of journalists. Residential Privacy This is the facet of privacy rights with the clearest connection to the eighteenth century text—in particular, to the Third and Fourth Amendments. But here, as with the other privacy categories just mentioned, the Court has moved outside the confines of clause-bound textualism, for in Stanley v. Georgia it recognized a First Amendment right to possess obscene materials “in the privacy of [one’s] own home.”48 No subsequent cases have built on Stanley, but even this solitary decision underscores the extent to which the modern system of privacy rights cuts across categories established by the eighteenth century enumeration of rights. As for the Fourth Amendment—undoubtedly the most important textual source of residential privacy claims—the Court might have interpreted its reference to houses narrowly, but it hasn’t. It might, for instance, have held that the amendment protects only people who own their homes in fee-simple, or it might have said that the provision protects only those who have a contractual interest in the residences they occupy (and so not the children or other relatives who occupy it at the same time).49 No such crabbed reading of the text has ever been entertained, however. In Stoner v. California, decided a year before Griswold, the Court held that guests in hotel rooms are entitled to Fourth Amendment protection. Decades later, it held in Minnesota v. Olson that an overnight guest in a private home also enjoys privacy

many constitutional questions concerning the scope of Brandeis’s proposed common law tort have yet to be resolved. For an earlier case that also left these questions unresolved, see Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). 48 394 U.S. 557, 565 (1969). 49 Stoner rejects a narrow reading of “their . . . houses,” remarking: “No less than a tenant of a house, or the occupant of a room in a boarding house, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures” (376 U.S. at 490). The citations are to McDonald v. United States, 335 U.S. 451 (1948) and Johnson v. United States, 333 U.S. 10 (1948).


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protection under the Fourth Amendment.50 The appropriate classification to use here is thus residential privacy. Even in this instance, in other words, the Court has enlarged on the text. What is the appropriate way to apply the category residential privacy? Should interpreters reason in binary terms—and so employ the simple distinction between outsiders and insiders when thinking about privacy within a home? Some Court opinions have relied on this binary division. Speaking of homes, for instance, the Court has remarked that “all details are intimate details, because the entire area is held safe from prying government eyes,” a statement that relies on a bright-line division between public and private space.51 Further comments on the curtilage surrounding the home tend to reinforce this straightforward binary distinction, for the Court has approvingly quoted Blackstone’s remark that “the house protects and privileges all its branches and appurtenances.”52 Other comments by the Court, however, point to a scalar way of thinking about residential privacy, one in which some places are more private than others. Perhaps the most significant of these is Griswold’s remark about the “sacred precincts of marital bedrooms,” a statement that suggests that even greater outsider restraint is in order for this place than for other rooms in a home.53 Bathrooms might also be classified as extra-private given social understandings concerning the respect that should be shown for nakedness. In contrast, a child’s bedroom (particularly, that of a young child) might be classified as less private than other portions of a home. On this more fine-grained analysis, there are degrees of privacy associated with residences. The chapters that follow employ this scalar approach not only for thinking about residential privacy but also for thinking about the informational sources of personal life. In everyday life, some things—places and facts—are deemed more private than others: master bedrooms and

50

Minnesota v. Olson, 495 U.S. 91 (1990). Kyllo v. United States, 533 U.S. 27, 37 (2001). 52 Florida v. Jardines, 133 S.Ct. 1409, 1415 (2013), citing 4 William Blackstone, Commentaries on the Laws of England 223, 225 (1979 facsimile ed. [1769]). 53 Griswold, 381 U.S. at 485. 51


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bathrooms as far as places are concerned, medical and financial records as far as information is concerned. The possibility of a scalar approach to privacy was noted in Chapter 6, where we saw that privacy conventions are understandable in terms of private facts and also privacy signals. The latter, I pointed out there, typically accompany the former: people close bathroom doors (and so signal an interest in privacy), for instance, because they think of the naked body as a particularly private matter. Privacy signals and private facts don’t always converge, however. People sometimes fail to seal envelopes—to cite an obvious example. Moreover, privacy signals are often employed for matters that don’t come under the private facts heading. The next two chapters investigate the complexities that arise once these two categories (private facts and privacy signals) are taken into account. Katz v. United States, the 1967 case that made informational privacy a central constitutional concern, I argue, had the unfortunate effect of focusing attention solely on privacy signals. Although more recent cases have partially addressed this shortcoming, a good deal of thought is nonetheless needed to insure that informational privacy protection is comprehensively addressed in modern constitutional law.


Chapter 10: Unobtrusive Supplementation: Katz, Whalen, and the New Era of Informational Privacy

The term informational privacy doesn’t make an appearance in a Supreme Court opinion until the early twenty-first century.1 In looking back, one can readily discern its relevance to cases decided before and after the Constitution’s adoption, for the category casts light on an idea implicit in the prohibition of “unreasonable searches and seizures of . . . papers and effects. . . . ” Entick v. Carrington, a contemporary commentator might say, was concerned with informational privacy. Lord Camden’s characterization of personal papers as their owner’s “dearest property”2 hinges not on the market value of the vellum seized by crown officials, the commentator would note, or on the calligraphy used to make entries but on the intimate nature of the information acquired by the government. A similar point is pertinent to modern cases. Katz v. United States is only specifically concerned with telephonic communication, it could be argued; its larger concern is freedom from interference with the informational sources of a person’s life. And Whalen v. Roe’s concern with medical

1 2

The Court introduced the term into case law in NASA v. Nelson, 562 U.S. 134, 144 (2011). Entick v. Carrington, 19 Howell State’s Trials 1029, 1044 (1765).

© The Author(s) 2016 W.C. Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_11

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records, it can readily be agreed, deals with one of the core components of informational privacy. To import this term into constitutional law, however, is to replace categories employed by the framers with a modern one, for the text doesn’t refer to information, much less privacy. Its explicit aim is to protect physical repositories of information—to shield papers and effects from unreasonable seizures. The term informational privacy covers these items, but it covers others as well, in particular data not contained in tangible objects. For this reason, the interpretive move from the Fourth Amendment’s reference to material objects that contain information to information simpliciter is important, but it’s subtly important since the new category encompasses everything in the text while expanding the scope of constitutional protection. It’s thus perhaps not surprising, given the conceptual transformation they bring about, that Katz and Whalen don’t mention the term informational privacy. They lay the groundwork for protecting it, but an actual reference to the term doesn’t appear until NASA v. Nelson, a 2011 opinion.3 This chapter is concerned with the whether and how questions essential to justifying treatment of informational privacy as a category of constitutional law. Because Justice Stewart’s opinion for the Katz Court and Justice Stevens’s Whalen opinion avoid extravagant rhetoric about emanations from the text, it’s important to realize that they not only extend the range of rights (as Griswold does) but that their conclusions mesh with the profound alteration in the structure of constitutional law inaugurated by Justice Douglas’s Griswold opinion. It’s particularly critical to consider this point with respect to Katz, for Stewart was a Griswold dissenter and so structured his pro-privacy opinion in Katz to obscure its connection to the earlier one. In some respects, Stewart succeeded, for Katz avoids the Brandeisian focus on comprehensive privacy protection that informs Douglas’s Griswold comments. There’s another sense, however, in which Stewart couldn’t escape Brandeis’s shadow, for Katz adopts exactly the position concerning the constitutionally protected status of the contents of phone conversations

3

See supra note 1.


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Brandeis had advocated in his Olmstead dissent. And there’s a further sense—one that Stewart resisted, it should be emphasized—in which Stewart follows in Brandeis’s footsteps, for by insisting on privacy protection for phone calls, Katz makes it possible for people to feel confident that they can conduct their lives free of government surveillance. If we bear this latter point in mind when thinking about Whalen’s concern with government use of the personal information contained in databases, we can see how an entire constitutional category unforeseen at the outset emerged as a component of the modern system of privacy rights. The chapter that follows is divided into three sections. The first reviews the data-gathering and data-retention institutions that are hallmarks of the modern state. It’s because these have taken on an importance unforeseen in the eighteenth century that it makes sense, once the original plan is understood as an interpretable scheme, to think in terms of informational privacy as an extension of the inventory of rights established at the outset. The final two sections consider Katz and Whalen. Neither case convincingly addresses the challenges posed by the modern surveillance state, I suggest. In reviewing the opinions in each case, I identify problems of privacy protection whose resolution I propose in the following chapter.

Government Access to Personal Information: From Surveillance to Use to Disclosure Because the Fourth Amendment is concerned with searches and seizures of tangible objects, it has only an indirect relationship to information government officials can acquire through surveillance of people’s movements in public places. It’s hardly surprising that the text doesn’t address this issue, for the word surveillance hadn’t entered the language when the Fourth Amendment was adopted. There is no entry for surveillance in Johnson’s dictionary, nor does Webster’s mention it. The term’s French origins are discernible in J.G. Lemaistre’s A Rough Sketch of Modern Paris, published in London in 1802, which states that residents of that city “are kept under constant surveillance by the police.”4 Lemaistre’s 4

J.G. Lemaistre, A Rough Sketch of Modern Paris 236 (1802).


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concern is state-sponsored surveillance—i.e., government monitoring of citizens by uniformed police or secret agents. In due course, the term was also applied to informal monitoring of behavior. Theodore Hook’s Sayings and Doings, an early nineteenth century commentary on daily life, speaks, for instance, of “the mild, yet pious surveillance of [a] gallant Baronet” who makes sure that the “lower orders” conform to the basic standards of social propriety.5 Daisy Miller, which Henry James subtitles “A Study” to emphasize its status as a field-report on the folkways of the upper classes, states that “discretion is the better part of surveillance,” a comment concerned with a mother’s supervision of her daughter as she receives suitors in the parlor of her home.6 Today, references to surveillance are limited primarily, though not exclusively, to discussions of the government’s efforts to monitor everyday life. Surveillance undertaken to prevent criminal activity is universally conceded to be an indispensable component of law enforcement. It occasions profound misgivings, however, given its ramifications for the conduct of personal life. In the middle of the twentieth century, George Orwell’s 1984 found a wide audience for its argument that pervasive surveillance undermines each person’s opportunity to develop an independent identity. “There of course was no way of knowing whether you were being watched at any given moment,” Orwell’s narrator remarks in characterizing life in Oceania, the novel’s dystopia. “You had to live—did live, from habit that became instinct—in the assumption that every sound you made was overheard, and, except in the darkness, every movement scrutinized.”7 Orwell’s target in 1984 was Stalin’s Soviet Union, not Great Britain or the United States.8 At no time in the years after the novel’s

5

Theodore Hook, Sayings and Doings (Second Series) 574 (1838). Henry James, Jr., Daisy Miller: A Study 93 (1878). 7 George Orwell, 1984 6–7 (Signet Classics ed. 1950 [1949]). 8 Writing to an American union leader shortly after 1984’s publication, Orwell stated: “My recent novel is NOT intended as an attack on Socialism or the British Labour Party (of which I am a supporter) but as a show up of the perversions to which a centralized economy is liable and which have already been partly realized in Communism and Fascism.” As quoted in John Rodden and John Rossi, The Cambridge Companion to George Orwell 85 (2012). 6


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publication did the liberal democracies adopt the kind of pervasive surveillance techniques it describes. But surveillance—sporadic, piecemeal monitoring by government officials rather than the type of blanket scrutiny and consequent regimentation that Orwell describes—became an increasingly common feature of American life as the century progressed. The Federal Communications Act of 1934 prohibited wiretapping (and so responded legislatively to the practices declared constitutionally acceptable in Olmstead).9 This Congressional initiative notwithstanding, the federal government persisted in wiretapping conversations. In particular, the Roosevelt administration conducted widespread wiretapping for national security purposes.10 Furthermore, in the aftermath of World War II, the FBI initiated domestic electronic surveillance of citizens considered subversive—Martin Luther King, Jr., among them.11 Even members of the Supreme Court were the targets of electronic surveillance. As Daniel Solove has noted, “Justice William Douglas seemed paranoid when he complained for years that the Supreme Court was being bugged—but he was right.”12 Local law enforcement also engaged in electronic eavesdropping. In 1954, for instance, a Pennsylvania Superior Court declared, in a ruling that ran directly contrary to conclusions previously reached by the United States Supreme Court, that “state courts [may] admit evidence obtained by tapping telephone wires” when this is undertaken to investigate criminal activity.13 Surveys conducted during the 1950s found that numerous police departments and local prosecutors adopted the position espoused by the Pennsylvania court, though the surveys also reported that most people only speculated about the scope of government surveillance. A report prepared in 1957 for the Fund for the Republic stated: 9

See Section 605 of the Federal Communications Act of 1934, 48 Stat. 1064. For discussion of the Roosevelt administration’s use of wiretapping for national security purposes, see Daniel Solove, “Reconstructing Electronic Surveillance Law,” 72 George Washington Law Review 1264, 1274 (2004). 11 See David Garrow, The FBI and Martin Luther King, Jr.: From “Solo” to Memphis, Chapter 4 (1980). 12 See supra note 10, at 1274. 13 Commonwealth v. Chaitt, 176 Pa. Superior Ct. 318, 328 (1954). 10


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Almost all law professors, defense attorneys, public defenders, and civil libertarians pleaded ignorance on the subject [of whether state officials were conducting wiretapping]. Some were willing to make broad statements, such as “police do plenty of wiretapping here,” but went on to explain that they believed this was so from what they had heard but had no actual knowledge of the fact.14

By the 1960s, anxiety about surreptitious surveillance had merged with further worries about the government’s accumulation of computerized data. “Thanks to modern science, privacy is becoming more and more rare all over the world,” the Saturday Evening Post remarked in a 1964 article entitled “Big Brother Is Listening.”15 In particular, computers made it possible to retain and analyze information in a way that had previously not been feasible. The Universal Automatic Computer I (UNIVAC I) was first employed by the Census Bureau and the Social Security Administration during the early 1950s.16 A decade later, commentators began to note that the government was using computerized databases to keep track of each person’s everyday habits. Orwell’s themes were deployed in this context. “The file keepers of Washington have derogatory information of one sort or another on literally millions of citizens,” Vance Packard, author of the The Naked Society, stated in 1966 while testifying before the House Special Subcommittee on Invasion of Privacy, “My own hunch is that Big Brother, if he ever comes to the United States, may turn out to be not a greedy power seeker but rather a relentless bureaucrat obsessed with efficiency.”17 Dystopian prophecies rarely pan out—but this one is relatively sound. It doesn’t account for the FBI’s mid-century practice of systematic electronic surveillance of dissidents; in that case J. Edgar Hoover was

14

As quoted in Samuel Dash, The Eavesdroppers 9 (1959). Ben H. Bagdikian, “Big Brother Is Listening,” 237 The Saturday Evening Post 183 (1964). 16 See Christopher Bates, “Univac,” in James Ciment, ed., Post-War America: An Encyclopedia of Social, Political, Cultural, and Economic History 268 (2006). 17 As quoted in George Lardner, “Data Center Warned on Privacy,” Washington Post, July 27, 1966 A1. 15


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indeed a vindictive power seeker.18 On the other hand, it captures well the key threat posed by pervasive government surveillance.19 The threat at stake isn’t a totalitarian abyss; America’s political culture is sufficiently vibrant to make this unlikely. Rather, it is a gradual slide toward universal government oversight of citizen activity. If one thinks of the Constitution along plan-as-draught lines, the text provides only limited opportunities to address this threat. On the other hand, if one thinks of the Constitution along plan-as-scheme lines, one can argue in favor of interpretive supplementation of the text to address the government’s appetite for information. Katz treats the Constitution as a scheme for purposes of regulating information-acquisition; Whalen does the same for purposes of regulating its disclosure. Each, in other words, supplements the text developmentally, responding to widespread concerns about threats to personal freedom.

Katz Like Olmstead, Katz is concerned with communicative privacy. But unlike the earlier case, Katz deals with an effort to secure privacy in a public place. The Katz Court emphasized this point—indeed, a great deal of the Court’s reasoning hinges on the signal sent to outsiders when someone shuts a phone booth door to make a call. Katz’s core holding, however, deals with exactly the same issue considered in Olmstead—i.e., whether electronic eavesdropping conducted without a warrant violates the Fourth Amendment if no trespass is committed when carrying it out. In Katz, the government executed its eavesdropping operation by 18

For discussion of mid-twentieth century FBI electronic surveillance of Martin Luther King and other dissidents, see Betty Medsger, The Burglary: The Discovery of J. Edgar Hoover’s Secret FBI (2014). 19 In the wake of revelations about electronic surveillance of domestic dissidents, Congress adopted Title III of the Omnibus Crime Control Act of 1968, discussed infra at note 21 and accompanying text. Congress also adopted the Foreign Intelligence Surveillance Act of 1978, 92 Stat. 1783, which made possible legislative oversight of government surveillance of communications coming into and out of the United States.


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hanging microphones above phone booths the defendant was known to use regularly. The microphones didn’t touch the top of the booths employed, so the government was able to argue—correctly—that its surveillance was conducted consistently with the rules laid down in Olmstead.20 The Katz Court thus faced a simple choice: whether to follow or overrule Olmstead.21 It settled for the latter option, an option compatible with mid-century legislative trends. By the time Katz reached the Court in 1967, 36 states had adopted statutes imposing restrictions on electronic eavesdropping.22 Furthermore, as of 1967, Congress was considering measures (which ultimately were included in Title III of the Omnibus Crime Control Act of 1968) that revised and extended the Federal Communications Act of 1934.23 Katz, in other words, ratified patterns of national practice that had unfolded in the four decades since Olmstead. But Katz isn’t merely a declaration of independence for informational privacy. Because it places privacy at the core of Fourth Amendment analysis, it also takes a first step toward refashioning the entirety of search-and-seizure jurisprudence. Unfortunately, the step taken was tentative—and the consequences have been troubling. Katz’s shortcomings, I suggest in this section, are traceable to a strategic consideration at the heart of Stewart’s opinion for the Court: they are attributable to his insistence on taking a different approach to privacy than the one Douglas employed in Griswold. Because Stewart was one of the Griswold dissenters, he adopted a rhetorical strategy in Katz designed to make it the Court’s un-Griswold privacy opinion. He avoided Douglas’s provocative imagery and emphasized doctrinal orthodoxy. Indeed, he didn’t cite Douglas’s opinion at all despite the fact that it

20

The Katz facts are reported in the Ninth Circuit opinion for the case. See Katz v. United States, 369 F.2d 130 (CA9, 1967). 21 According to Peter Winn, the Court initially split four to four on this question. See his “Katz and the Origins of the ‘Reasonable Expectation of Privacy’ Test,” 40 McGeorge Law Review 1 (2009). 22 See Berger v. New York, 388 U.S. 41, 48 n. 5 (1967) for a tally of states that had adopted, as of 1967, restrictions on electronic surveillance. 23 82 Stat. 197 (1968).


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had been announced only two years earlier.24 The result, I argue here, was an undertheorized account of privacy, one that fails generally to account for informational privacy’s role within the domain of other privacy interests and that fails, in particular, to distinguish it from secrecy. Given these problems, this section has two aims. First, it offers a straightforward justification for Katz’s great achievement—its liberation of informational privacy from property rights. And second, it offers a way to escape from the narrow confines of Stewart’s reasoning. Stealth Supplementation Because Stewart’s rhetorical strategy was to produce privacy’s un-Griswold, it’s easy to miss the fact that his Katz opinion, like Douglas’s in Griswold, supplements the text’s enumeration of rights. Katz does so by extending the Fourth Amendment’s reach beyond material objects (i.e., persons, houses, papers, and effects). Taft’s Olmstead opinion, it will be recalled, rejects the possibility of such an extension as a matter of principle. It also relies on a practical reason for refusing to protect conversations: persons, houses, papers, and effects can be identified in advance, Taft notes (and so can be mentioned in detail in a warrant application), whereas conversations that have yet to occur can’t be identified in advance.25 Stewart’s Katz opinion doesn’t treat this point as critical—but it also doesn’t explain why Taft’s position should be rejected. His opinion simply avoids the issues Taft raised. Stewart’s Katz opinion also sidesteps Brandeis’s Olmstead dissenting argument that conversations should be protected given the analogy that can be drawn between them and letters sent through the mail. Indeed, despite the fact that Katz adopts Brandeis’s specific conclusion—that phone conversations are constitutionally protected even in the absence of trespass on the property from which they’re made—it explicitly rejects the relevance of Brandeis’s comments on the

24 Stewart’s only citation to Griswold was to a portion of Justice Black’s dissent in the case. See 389 U.S. 350 n. 4, citing 381 U.S. 479, 509 (Black, J., dissenting). 25 For discussion of Taft’s Olmstead remarks, see supra Chapter 7, notes 50–2 and accompanying text.


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right to be let alone.26 Rather, Katz overrules Olmstead by resort to the bland statement that the “underpinnings” of the earlier case “have been so eroded by our subsequent decisions that the ‘trespass’ doctrine there enunciated can no longer be regarded as controlling.”27 This is a less than satisfactory way to justify rejection of a major constitutional precedent. If we return to the whether and how questions essential to assessing any exercise in supplementation, we can identify a sound rationale for Katz. As for the whether issue, it’s clear that supplementation is permissible when this is compatible with the Constitution’s overall aims and consistent with a trajectory of national change. In this instance, the exercise in developmental supplementation had a technological impetus. The framers were well aware of the possibility of eavesdropping (a point Justice Black makes in his Katz dissent28), but they nonetheless inserted language in the Fourth Amendment that makes it fit awkwardly with a prohibition of this. So the specific exercise in supplementation in Katz can be justified only because pervasive surveillance—not the relatively ineffective kind possible in the late eighteenth century—is incompatible with the overall commitment to individual liberty that informs the text. Stewart’s Katz remarks don’t comment on this point in any detail. They do, however, contain a casual comment that’s compatible with developmental supplementation, for Stewart remarks: “To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private conversation.”29

“[T]he Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.’ That Amendment protects individual privacy against certain kinds of government intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental intrusion. But the protection of a person’s general right to privacy—his right to be let alone by other people—is, like the protection of his property and of his very life, left largely to the law of the individual States” (389 U.S. at 350–51). 27 Id. 353. 28 “There can be no doubt that the Framers were aware of this practice [i.e., eavesdropping], and if they had desired to outlaw eavesdropping, I believe that they would have used the appropriate language to do so in the Fourth Amendment” (Id. 366 (Black, J., dissenting)). 29 Id. 352. 26


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As for the how issue, a justification for Katz must rely on the analogy Brandeis proposed in Olmstead between letters sent through the mail and phone conversations. The analogy is imperfect, it must be conceded, for letters entrusted to the mail can be identified in a warrant application whereas only the subjects of conversations can be identified in an electronic surveillance case. This difference isn’t fatal, though, since electronic surveillance warrants can be limited by minimization requirements; indeed, courts can mandate that government agents follow the very same minimization procedures employed for searches of personal papers. Moreover, once we venture beyond this point, it’s clear that the Brandeis analogy is a strong one. In each instance, an interpreter says that X, something not mentioned in the text, resembles Y, something actually mentioned. As noted in Chapter 3, Justice Scalia’s argument for the constitutionally protected status of handwritten letters relies on an analogical claim of this kind.30 Brandeis’s Olmstead argument in favor of communicative privacy also relies on a claim of family resemblance— and Katz does as well, thus making it particularly notable that Stewart doesn’t refer to the Brandeis analogy. A Paradigmatic Exclusionary Practice: Closing the Door to a Phone Booth to Make a Call Even if it’s agreed that phone conversations should be brought within the ambit of Fourth Amendment protection, it’s essential to ask whether someone must take an affirmative step to insure that protection. Letters are typically sent in sealed envelopes. If someone leaves an envelope unsealed, an outsider might take this to be a signal that the sender isn’t interested in securing privacy for its contents, so it might be said—and, indeed, Jackson appears to suggest as much31—that while the contents of sealed envelopes are protected the contents of unsealed envelopes are not protected. A similar point might be made about phone conversations. It was thus critically important for Stewart to rely on the premise that someone using a phone booth secures constitutional privacy protection for himself by shutting the door to the

30

For discussion of Scalia’s comments on the constitutional status of handwritten letters, see supra Chapter 3, notes 18–20 and accompanying text. 31 See Ex Parte Jackson, 96 U.S. 727, 733 (1877).


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booth being used. Once such a step is taken, the Stewart opinion suggests, a signal is sent that calls on others to exercise restraint. And a privacy signal having been sent, the Stewart opinion further assumes, government officials (when they aren’t armed with a warrant) are placed in the same position as members of the general public. On this analysis, Katz accords constitutional standing to norms of everyday behavior. It adheres to the following line of reasoning: (i) Someone in a public place has a privacy interest (not in a legal sense but instead in one that’s understandable in terms of understandings embedded in social life) when he unmistakably indicates an interest in denying others access to an object or information; (ii) the exclusionary step taken in asserting the privacy interest generates an obligation (again—not in a legal sense) that requires outsiders to exercise restraint; and (iii) government agents, if not authorized by a warrant, occupy no better or worse position than members of the public at large with respect to the object of information at issue (a constitutional conclusion built on the premise that legal norms can be traced to those that govern everyday interactions). Stewart moves from non-legal to constitutional norms in a lengthy passage that discusses various locales—phone booths, taxicabs, and business offices—in which someone can claim a privacy interest that generates an obligation of outsider restraint. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” Stewart remarks. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than individual in a business, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him


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to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.32

Why is someone “surely entitled” to assume that he won’t be overheard when he shuts the door to a phone booth? This comment doesn’t appeal to the Constitution: indeed, it doesn’t suggest that the entitlement at stake can be traced to a traditional source of law. Rather, Stewart’s remark turns to conventions of acceptable behavior and assumes that these conventions also bind government officials as long as those officials haven’t the special authorization provided by a warrant. Quotidian standards of proper behavior, in other words, serve a source of constitutional law in a setting where someone can’t claim the protection afforded by property rights. In stepping back, we can see that there are three reasons that support this novel approach to privacy. First, Stewart’s remarks discount arcane rules of property law that frequently have only a tangential relationship to privacy interests. They focus instead on a key privacy concern—a person’s effort to shield his personal life from the scrutiny of others. Second, because Stewart’s remarks treat privacy as a core analytic category for purposes of Fourth Amendment decision-making, they deal only in passing with surveillance issues. They have ramifications far beyond electronic surveillance, in other words (although they have ramifications for this as well). And third, Stewart’s comments recognize, albeit implicitly, that privacy conventions aren’t negotiated but instead are viewed as unlegislated obligations that promote social coordination (strangers don’t bargain with outsiders, for instance, about the propriety of overhearing phone conversations, nor do people occupying bathroom stalls in public restrooms bargain with outsiders about the propriety of looking through the slits of the stalls). Put differently, Stewart’s comments recognize that privacy conventions, while they can’t be traced to the decisions of specific “legislators,” are nonetheless viewed as obligations of everyday life—and so can serve as the template for identifying the obligations government officials must honor as they investigate crime.

32

Id. 351–2.


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Given the importance of this transition from the quotidian to the constitutional, it’s essential to note that it’s ratified in Justice Harlan’s concurrence with Stewart’s remarks. Fourth Amendment privacy protection, Harlan states, exists when two complementary expectations exist, one subjective, the other objective. First, Harlan argues, “a person [must] exhibit[] an actual (subjective) expectation of privacy and second, that . . . expectation [must] be one that society is prepared to recognize as ‘reasonable.’”33 As applied to the Katz facts, this means that someone exhibits a subjective expectation of privacy by shutting a phone booth door, that society defines this expectation as reasonable by calling for outsider restraint in the face of the signal sent by a shut door, and that government agents, when they don’t have a warrant, must treat this social expectation as a constitutional restraint. Harlan’s Katz concurrence has achieved canonical status in Fourth Amendment privacy cases.34 When considered in conjunction with Stewart’s comments about the importance of shutting a door, his concurrence suggests the following rule: someone secures a constitutionally protected interest in informational privacy when she takes an affirmative step (shutting a door, for instance) that excludes the entire world. This is surely sound—but it’s also problematic since it begs the question of whether everyday conventions support valid privacy claims in the absence of the kind of one-person-against-the-entire world exclusionary practice at stake in Katz. More specifically, the rule that emerges from the convergence of Stewart’s and Harlan’s comments begs two important questions. One has to do with the conceptual relationship between privacy and secrecy. Each of these hinges on exclusion, but privacy is a concept with positive connotations whereas secrecy is, at best, a morally neutral category. The other question has to do with degrees of exclusion. That is, assuming a meaningful distinction can be drawn between privacy and secrecy, one has to ask whether privacy is secured when a person only partially excludes others. Secrecy is an all or nothing affair. Benjamin Franklin remarked, for instance, “[t]hree can keep a secret—if

33 34

Id. 361 (Harlan, J., concurring). The Court incorporated them into doctrine in Rakas v. Illinois, 439 U.S. 128, 143 n. 12 (1978).


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two of them are dead.”35 Privacy, a subject Franklin appears not to have discussed, admits of scalar degrees, in particular because there are circles of privacy (family and friends, for instance) that share information and so draw invisible exclusionary lines against outsiders. The points just made didn’t have to be considered in Katz. In shutting a phone booth, a person seeks secrecy and privacy for himself. Moreover, by shutting the door on entering a booth, someone excludes everyone else: after all, the setting is one in which a single person shuts out everyone else. Stewart and Harlan thus didn’t have to distinguish between privacy and secrecy, nor did they have to consider the question of whether someone can reasonably claim privacy for herself when she has only partially excluded others. The Katz facts made it possible, in other words, for members of the Court to produce undertheorized opinions concerning the novel category they were introducing into constitutional law. The next chapter offers a way to think more carefully about each of the points just made—and so to expand on the relatively modest platform for informational privacy established in Katz. First, it suggests that the privacy/secrecy distinction has to be examined from an outsider’s perspective: it suggests, in other words, that an outsider must ask, while accepting the limitations of her situation, whether it’s reasonable to say that an insider relying on exclusionary measures appears to be employing them for purposes related to personal life. If the answer to this is positive, then the favorable term privacy is warranted, for the social conventions associated with informational privacy are understandable in terms of the twin functions of preserving human dignity and facilitating uninhibited conduct in personal life. And second, the chapter suggests that privacy conventions allow for only partial exclusion—for sharing information within a circle of friends, for instance, or for limited disclosure of personal information to third-party guardians. By noting that Katz failed to address these key issues associated with informational privacy, one can account for the many disappointing

35

Benjamin Franklin, Poor Richard’s Almanac (1735), reprinted in The Oxford Dictionary of Quotations 211 (2nd ed. 1959).


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conclusions reached by the Court in the late twentieth century in reliance on its authority. Post-Katz informational privacy cases are reviewed in the next chapter, and remedies for the Court’s holdings are suggested. But even if it’s granted that Stewart and Harlan might have investigated the concept of informational privacy more carefully (and so erected firmer barriers against arguments that limit privacy to settings where someone has tried to exclude everyone from information pertinent to her life), one has to add that Katz contributed immensely to the genealogy of constitutional privacy rights, in part because the case freed informational privacy rights from their dependence on property law, in part because it treated everyday conventions as a source of law for identifying valid claims against the government. Through its examination of theoretical issues that weren’t addressed by the Katz Court, the next chapter proposes a criterion that emphasizes informational privacy’s functional importance in protecting the domain of personal life. It thus returns to the integrated conception of privacy Brandeis proposes in his Olmstead dissent.

Whalen Whalen v. Roe, though concerned with something unrelated to phone conversations, takes a first step toward identifying informational privacy’s role in promoting personal autonomy. At issue in the case was the constitutionality of a New York statutory scheme that required pharmacists to provide a state agency with information about prescriptions filled for drugs that could legally be consumed under a doctor’s supervision (but whose possession was otherwise illegal). In seeking to enjoin the statute’s enforcement, the plaintiffs contended that a regulation requiring notification of the state about requests for drugs would have a chilling effect on their legitimate use. Although the Court concluded that the New York legislation was constitutionally acceptable, it did so by positing an individual interest in avoiding the disclosure of personal information and by then holding (i) that the questions posed about drug use were reasonable and (ii) that the limitations imposed on data dissemination were compatible with the interest in avoiding disclosure


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of sensitive data.36 It’s perhaps because Whalen didn’t actually invalidate a statute that commentators have tended to overlook it. But there are two reasons why the case matters. One is that it’s been cited favorably on numerous occasions in subsequent Court opinions.37 The second is that Whalen is a particularly intriguing example of gap-filling supplementation in constitutional law. We can best appreciate the significance of this latter point by considering Whalen’s unusual approach to the whether and how issues pertinent to supplementation. In Griswold, Douglas’s opinion starts with the text: its discussion of penumbral emanations is understandable in terms of an effort to persuade readers that there is an affinity between the entirety of expressly recognized individual rights and the autonomy right recognized in the case. Stewart’s Katz also begins with the text— and it ends with the text as well, for it never notes that that the holding in the case actually extends the scope of Fourth Amendment coverage, though of course a conclusion that the privacy of conversations is constitutionally protected quite clearly goes beyond the enumeration of “persons, houses, papers, and effects.” By contrast, Justice Stevens’s Whalen opinion starts not with the text but with the concept of privacy as previously discussed in Supreme Court case law. “The cases sometimes characterized as protecting ‘privacy’ have in fact involved two different kinds of interests,” Stevens remarks. “One is the individual interest in disclosing personal matters, and another is the interest in independence in making certain kinds of important decisions.”38 To support his claim about disclosure, Stevens cites Brandeis’s Olmstead dissent, Griswold’s comment on First Amendment penumbral protection, and Stanley’s extension of the First Amendment concerning the possession of obscene material in the home. To support his claim about decisional independence in personal life,

36

Whalen v. Roe, 429 U.S. 589, 598–605 (1977). See, e.g., Nixon v. Administrator of General Services, 433 U.S. 425, 457 (1977); United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 770–1 (1989); and NASA v. Nelson, 562 U.S. 134, 144 (2011). 38 429 U.S. at 599–600. 37


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Stevens again cites Griswold and other sexual autonomy cases decided in its wake. Whalen, then, unlike Griswold and Katz, doesn’t treat the text as a platform for announcing supplementary rights. Instead, prior cases perform this function, for Whalen addresses issues about informationacquisition and dissemination only because these facets of privacy had become important in the wake of prior decisions supplementing the text. It’s for this reason that the otherwise bland reference to “[t]he cases sometimes characterized as protecting ‘privacy’” is significant, for Whalen’s unobtrusive exercise in supplementation consists of an extension of already-undertaken extensions. In asking whether it was proper for the Whalen Court to embark on its exercise in interpretive supplementation, one thus should begin with the by-now familiar point that it was assumed at the outset that the text’s enumeration of rights is suggestive of further, unmentioned ones.39 In building on this, one can justify Whalen’s extension of the text on developmental grounds, for Whalen focuses on modern information-gathering, accumulation, and dissemination devices that couldn’t have been imagined at the time of the founding. Stevens’s opinion remarks on this novelty. “We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files,” the opinion states.40 Justice Brennan’s Whalen concurrence also focuses on the threat posed by technology. “The central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information,” Brennan remarks, “and I am not prepared to say that future developments will not demonstrate the necessity of some curb on that technology.”41 Means must keep pace with ends, in other words. Although the text says has little to say about the means of limiting government intrusion into personal life, constitutional protection must be expanded to deal with this component of personal freedom.

39

For evidence that members of the founding generation entertained this premise, see supra Chapter 2, notes 2–6 and accompanying text. 40 429 U.S. at 605. 41 Id. 607 (Brennan, J., concurring).


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As for the question of how to extend the scope of individual rights, the key point to note about Whalen is that it relies entirely on substantive due process reasoning to offer protection for informational privacy. The Whalen plaintiffs cited specific provisions of the text—in particular, the Fourth Amendment as interpreted in Katz—to argue for a general right of informational privacy pertinent to their claims. Stevens’s opinion, however, flatly rejects this quest for a textual home, remarking that search and seizure cases are concerned with “affirmative, unannounced, narrowly focused intrusions into individual privacy during the course of criminal investigations.”42 Because the New York statutory scheme at issue in the case didn’t seek to acquire information in this way, Stevens concludes, the Fourth Amendment couldn’t be used to assess the scheme’s constitutionality. Stevens’s remarks thus treat substantive due process as a default category for interpretive supplementation. Having rejected the possibility of an implied Fourth Amendment right, they make it clear that substantive due process can be invoked when, on the one hand, nothing expressly mentioned in the text is relevant to a case under consideration but when, on the other hand, a legitimate privacy interest is at stake. This is an unconvincing, ad hoc way to go about supplementing the text, it might be argued. Substantive due process unmistakably moves beyond core concerns in amendments one to eight: it adds to the range of rights even in the absence of a close affinity between the said and the unsaid, so the Court can properly rely on it only when this is supported by the extended Madisonian framework—that is, when there is a clear-cut national consensus in favor of the novel right at stake. But there actually was a national consensus in favor of Whalen supplementation, for Congress’s many initiatives on behalf of informational privacy—in particular, the Privacy Act of 1974, which is centrally concerned, as is Whalen, with government disclosure of personal information43—established before the Court acted that the subject was one about which there was agreement. Even if one grants, then, that Whalen’s turn to substantive due

42 43

Id. 604 n. 32. See 88 Stat. 1896 (1974).


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process is an ambitious extension that goes beyond obvious affinities with what the text says, one can nonetheless defend it as a proper exercise of this kind given national concern about the government’s acquisition and storage of personal information in its data bases. A further point is worth noting here, for Whalen’s focus on personal information marks a significant break with Katz’s analysis of privacy. In Katz, Stewart focuses on privacy signals—i.e., on the message conveyed by shutting a door. In Whalen, on the other hand, Stevens focuses on private facts. Stevens’s opinion speaks, for instance, of “an individual interest in avoiding disclosure of personal matters,”44 the problems posed by “accumulated private data,”45 and the risks to everyday life raised by the “vast amounts of personal information in computerized data banks or other massive government files.”46 In other words, whereas Katz is concerned with privacy procedures (i.e., with the way in which someone signals an interest in being let alone), Whalen is concerned with substantive privacy (i.e., with understandings about which facts are more pertinent than others to each person’s exercise of authority in conducting her life). A comprehensive account of everyday conventions must address the interplay of these procedural and substantive concerns, for while there are many occasions when the former are used to shield the latter (when people close the door before taking a bath, for instance, thereby signaling that they wish privacy for something viewed as intrinsically private), a framework for assessing the soundness of privacy claims must offer a way to resolve cases when the signals and private facts are not aligned. On this analysis, Whalen doesn’t simply round out the modern system of privacy rights, it also introduces a variable—private facts—that has to be considered alongside privacy signals when trying to make sense of

44

429 U.S. at 598–9. Id. 606. 46 Id. 605. 45


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informational privacy.47 Whalen’s analysis of the category personal information is far from comprehensive; indeed, the Stevens opinion merely affirms the widely-shared understanding that each person has a legitimate concern about outsiders’ access to health-care information bearing on her life. But this point is sufficient to distinguish Stevens’s approach from the one Stewart took in Katz, for it affirms (as Katz doesn’t) informational privacy’s role in sustaining independent decision-making in personal life. Whalen, in other words, returns to the integrated account of privacy that informs Griswold (and that is essential to Brandeis’s Olmstead dissent). It affirms the functional connection between informational privacy and the autonomous conduct of personal life. Not surprisingly, Stewart objected to Stevens’s Whalen analysis. In a concurring opinion, Stewart noted that Katz had stated that “there is no general ‘constitutional right’ to privacy”—and so intimated that Whalen had come close, through its reliance on substantive due process analysis and its favorable reference to Brandeis’s Olmstead dissent, to recognizing such a right.48 Stewart limited himself to this point, however. He didn’t write a concurrence in the Court’s judgment, so the fact that he voiced a reservation about Stevens’s approach meant little since his statements were contained in a concurrence in the opinion of the Whalen Court. Stewart’s equivocation is perhaps attributable to second thoughts he was beginning to have about Katz, for while he relied solely on a procedural conception of privacy in Katz (and so focused only on the signal sent by shutting a phone booth door), he adopted a position that emphasized a hierarchy of private facts while dissenting in Smith v. Maryland, a case decided two years after Whalen. At issue in Smith was the constitutionality of a government investigation that had identified, without reliance on a warrant, the phone numbers someone had dialed from his home. The Smith majority upheld this inquiry as permissible. There is no reasonable expectation of privacy in information people voluntarily convey to third 47

Scholars of the common law, influenced by the Brandeis article, expressed interest in the concept of private facts throughout the early twentieth century. See, e.g., William Prosser’s discussion of tort liability for “public disclosure of embarrassing private facts” in his “Privacy,” 48 California Law Review 383, 389 (1960). 48 Id. 607–8 (Stewart, J., concurring), citing Katz, 389 U.S. at 350–1.


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parties, the Court stated, so while someone who uses a telephone to make a call can properly assert a privacy interest in the contents of her call (since this is not something conveyed to a third party) a person using a telephone can’t assert a privacy interest in numbers dialed from that phone (since the numbers are conveyed to the phone company).49 In rejecting this claim, Stewart stated in dissent that the pattern of calls someone makes from her home “reveal[s] the most intimate details” of her life.50 It’s in this way that Stewart indicated that he was having second thoughts about Katz, for Stewart’s Katz opinion doesn’t distinguish between different types of private information—and so of course provides no reason to distinguish between intimate and quotidian features of private life. Put differently, Stewart’s Smith dissent adopts the substantive conception of informational privacy one finds in Whalen. As was true of Stevens’s Whalen remarks, Stewart doesn’t attempt to define the category personal information (though his reference to intimate details indicates that he was prepared to include phone numbers dialed as well as health care data). But even though Stewart failed to examine this point, it’s nonetheless significant that he indicated a willingness to consider the complexity of privacy conventions by adding to privacy signals, the subject of Katz, a concern with private facts. The chapter that follows argues for the soundness of a two-tiered approach to privacy—one of which focuses on signals, the other on private facts—and uses this approach to rethink many conclusions about informational privacy announced in the wake of the Katz decision.

49 50

Smith v. Maryland, 442 U.S. 735, 744 (1979). Id. 748 (Stewart, J., dissenting).


Chapter 11: Informational Privacy Imperiled: Protecting Core Elements of Personal Control while Insuring Public Safety

“You have zero privacy anyway,” Scott McNealy, CEO of Sun Microsystems, remarked at a product roll-out conference in 1999. “Get over it.”1 By delivering his comment as the new millennium was about to begin, McNealy underscored the contrast between mid-twentieth century and contemporary discussions of privacy. In his 1949 novel, Orwell imagined a dystopia without privacy.2 Fifty years later, McNealy went further: he didn’t just imagine such a world, he proclaimed its absence and admonished his audience to adjust to this. Needless to say, McNealy was concerned primarily with informational privacy. He couldn’t reasonably have denied that respect for the autonomous conduct of personal life had continued to grow throughout the twentieth century. He also couldn’t have denied that respect for residential privacy showed no sign of abating. McNealy could, however, plausibly claim that informational privacy was imperiled by modern technology.

As quoted in Polly Sprenger, “Sun on Privacy: ‘Get Over It,’” Wired, January 26, 1999, available at www.archived.wired.com/politics/law/news/1999/01/17538. 2 For discussion of Orwell’s dystopia, see supra Chapter 10, notes 7–8 and accompanying text. 1

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But of course McNealy didn’t make the cautious claim that it’s plausible to imagine a world without informational privacy. Instead, he insisted that this kind of privacy is dead and gone. Revelations about the American government’s response to the September 11, 2001 terrorist attacks underscored the importance of this statement. In 2005, The New York Times reported that President Bush had issued a secret executive order following the 9/11 attacks authorizing the National Security Administration (NSA) to undertake warrantless interception of international communications sent by Americans to parties abroad.3 Bush’s order was manifestly inconsistent with existing statutory law. The Foreign Intelligence Surveillance Act (FISA) of 1978 required judicial oversight of the kind of surveillance Bush had instructed the NSA to conduct, so Bush’s actions pitted executive against legislative power. The tension between the two was eventually resolved, for Bush accepted 2007 amendments that brought the NSA into compliance with the law.4 Nonetheless, the fact that a president had secretly circumvented the law seemed to confirm the alarmist cry that informational privacy isn’t simply imperiled but in fact is a thing of the past. Edward Snowden’s 2013 disclosures about the scope of anti-terrorist surveillance provided more fodder for the McNealy thesis. Snowden, an NSA contract employee, chose to go public about numerous agency surveillance programs, among them its bulk collection of phone numbers dialed by virtually every American, its monitoring of cell phone conversations by foreign leaders, and its employees’ proclivity to violate statutory prohibitions against reading the contents of personal communications not pertinent to national security issues. Apart from this latter case and some other low-level failures to honor statutory requirements, Snowden’s disclosures didn’t unmistakably establish that high-ranking NSA officials had violated the mandates under which they were supposed to operate.5 In this 3 James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Courts,” The New York Times, December 16, 2005 A1. 4 The new statute, which amended portions of FISA, was called “The Protect America Act of 2007.” See 121 Stat. 552 (2007). 5 For a summary of Snowden’s disclosures, see “NSA Files: Decoded,” available at www.theguar dian.com/us-news/the-nsa-files.


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respect, the disclosures of 2013 differed from those of 2005. There is an important sense, however, in which they were complementary, for when taken together they established that the government has an enormous appetite for personal data bearing on the conduct of all Americans. But troubling as the disclosures of 2005 and 2013 are, someone might ask, do they support the McNealy thesis in its most provocative form? Do they establish, in other words, the claim that modern technology has so eroded the control people exercise over data pertinent to their personal lives that they’re transparent to the outside world? Only a moment’s thought is needed to realize that this is an exaggeration. Modern America is not a Panopticon.6 Indeed, even contemporary prisons bear only a faint resemblance to Bentham’s Panopticon, for inmates today enjoy a modicum of informational privacy against searches and seizures conducted by corrections officers.7 As for the world outside prisons, the McNealy thesis is almost certainly excessive—almost certainly rather than certainly because it has to be conceded that the technology is now in place to monitor private citizens as if their residences and communication are wholly penetrable and it also has to be conceded, given revelations about secret initiatives undertaken by the executive branch, that the government has shown a marked interest in expanding its surveillance capabilities beyond legislative limits. Because there can be no certainty about the scope of government surveillance, only a qualified statement is in order. That is, one has to say that, assuming executive branch compliance with the Constitution as currently interpreted and the statutes now in force, informational privacy isn’t dead. Nonetheless, it quite clearly is imperiled. Unfortunately, even judicial decisions have contributed to this trend, for in the decades following Katz the Court analyzed privacy as little more than an access-denying practice. That is, decisions rendered in the late twentieth century often

6 Jeremy Bentham introduced this term in endorsing the idea of an all-seeing surveillance system for prison inmates. See his Panopticon, Or the Inspection House (1791). 7 For a case in which a federal court upheld an inmate’s privacy claim against a corrections officer’s search, see United States v. Hinckley, 672 F. 2d 115, 129 (D.C. Cir. 1982).


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treated total exclusion of others (Justice Stewart’s Katz opinion, it will be recalled, emphasized that someone secures privacy for himself by closing a phone booth door8) as a precondition for asserting a Fourth Amendment privacy claim, so cases decided in the 1970s and 80s held that someone does not have a constitutionally protected privacy interest when she (i) deposits money in a bank (since the amount deposited is recorded by bank employees), (ii) fails to cover her backyard against surveillance by a hovering helicopter (since a resourceful pilot can survey the contents of a backyard without having to rely on binoculars), or (iii) leaves her trash outside her home in a carefully tied opaque garbage bag (since tramps and snooping newspaper reporters have been known to rip open bags and examine their contents).9 Decisions such as these conflate privacy and secrecy. They rely, in other words, on the premise that people can secure constitutional protection for themselves only by exercising unrelenting vigilance against the outside world by barricading themselves against others. This chapter offers a way to correct the flaws of the Court’s post-Katz decisions. It does so by proposing a forbearance model of informational privacy, one that captures better “the expectations of privacy that society is prepared to recognize as ‘reasonable’” (to invoke Justice Harlan’s concurring remarks in Katz) than does the vigilance model that informs most of the Court’s late twentieth century opinions concerned with the subject. In building on the forbearance model, the chapter explains how constitutional law can offer substantial protection for personal data— not full protection, of course, for this of course is not what the text calls for given the Fourth Amendment’s authorization of reasonable searches. The forbearance model, I argue, offers a way to emphasize informational privacy’s role as a facilitator of autonomy interests. Brandeis’s Olmstead defense insisted on informational privacy’s functional connection to the right to be let alone. This chapter does so as well. The chapter is divided into three sections. It begins by providing an overview of the modern surveillance state. This introductory section

8 9

For discussion of this, see supra Chapter 10, note 32 and accompanying text. For discussion of these cases, see infra, notes 14–16 and accompanying text.


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reviews privacy-penetrating technologies and their ramifications for the investigation of terrorism as well as that of ordinary crime; it considers constitutional questions concerning the relative competence of the executive, legislative, and judicial branches in combating terrorism; and it also examines selected post-Katz cases that have shaped privacy rights. The second section evaluates those cases in light of the distinction between forbearance and vigilance models of informational-privacy protection. The third section applies the forbearance model to current constitutional issues. It devotes a good deal of attention to special problems associated with counterterrorism. But it also considers general issues associated with the protection of informational privacy, for our ultimate concern can’t be overcoming terrorism but a more general one—i.e., insuring the regime of respect for privacy that received constitutional recognition in the midtwentieth century.

The Surveillance (and Data-Accumulating) State If there is an iron law of modern history, it is that technology has provided ever-increasing opportunities for the surveillance of personal behavior. It’s foolish to try to anticipate the innovations that will further this trend. It’s wise, however, to formulate legal principles that can tame the innovations certain to come. The framework provided by the modern system of privacy rights announced in the mid-twentieth century provides a means of controlling surveillance technology. But before outlining a forbearance model that will make this possible, we should survey the technology that now exists, and we should also consider constitutional issues unique to counterterrorism surveillance. Surveillance Technology: An Overview The iron law of surveillance enhancement applies not only to the government but also to the private sector—to efforts by non-government institutions that track consumer preferences, follow lifestyles, identify factors pertinent to the extension of credit, and so on. It’s arguable that private sector surveillance matters as much as the kind conducted by the government. Constitutional law is


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largely confined to state action, however, so we will have no occasion to examine issues peculiar to private-sector surveillance. A simple binary—between transactional and non-transactional information-acquisition—should serve as the starting point for thinking about government surveillance technology.10 Transactional informationacquisition does not involve surveillance. It holds out the prospect of tracking civic life, but because transactional encounters with citizens don’t rely on asymmetric observation of behavior they can’t be classified as a form of surveillance. Prior to the development of modern technology, transactional encounters between officials and citizens (license applications, for instance, or tax payments) mattered a great deal in providing the government with data about the public. Needless to say, even during the nineteenth century surveillance was also employed to provide the government with information about civic life. For instance, police officers conducted surveillance, sometimes by mere observation (as they walked their beats), sometimes by using the machines of their day (by placing taps on overhanging telegraph lines, for instance11). Nonetheless, nineteenth century government’s primary source of information about citizens was the data it accumulated following officials’ transactions with citizens. This source continues to matter today, but it’s now complemented by a wide array of machines, many of which surreptitiously track behavior. The mechanical devices employed are often critical to counterterrorism efforts. There are two reasons, though, why it’s best not to segregate a discussion of technology employed for counterterrorism from one that’s concerned with surveillance devices used to detect ordinary crime. One is that many machines perform multiple functions: they provide information about, say, robberies or burglaries as well as terrorist activity. The other is that surveillance has a uniform impact on privacy no matter why it’s conducted. It may be that people are more willing to accept surveillance when its function is to foil terrorism, but this question should be

This survey is informed by the discussion of surveillance technology in Michael Fromkin, “The Death of Privacy?” 52 Stanford Law Review 1461, 1476–501 (2000). 11 For discussion of early wiretapping efforts, see Samuel Dash, The Eavesdroppers 23–4 (1959). 10


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addressed only after assessing the degree to which surveillance interferes with privacy. Two categories can be used to classify surveillance devices, one concerned with the places being observed, the other with the possibility of enhancing the senses. As for place-surveillance, closed-circuit cameras make it possible to observe behavior in public places. Cell phone monitoring by telecommunications companies provides information about customer locations. And global positioning systems (GPS devices), when attached to tangible objects (cars, for instance), make it possible to determine the specific location of an object. Sense-enhancing technology has become increasingly available in the twenty-first century. Some of this is biometric in nature; it’s now possible, for instance, to detect specific features of a human body in a way no one previously could while using unaided senses. Some senseenhancing technology overcomes personal limitations of space. For example, drones offer the possibility of long-term overhead surveillance of behavior; thermal imaging devices can detect heat waves emanating from objects lodged behind walls; and passive millimeter-wave imaging makes it possible to discern objects underneath clothing. In the near future, the government may be able to deploy miniature sensors that float in the air (smart dust, as they’re called) to provide information about virtually any physical object. Post-Katz Privacy Decisions Most of the surveillance devices just noted contribute to counterterrorism efforts. For the reasons just stated, however, it’s essential not to confine consideration of them to that context but instead to think of their ramifications for informational privacy generally. Indeed, it’s particularly useful to set terrorism issues to one side when thinking about post-Katz privacy decisions, for while modern informational privacy case law is pertinent to counterterrorism initiatives, it was developed during the course of litigation over more quotidian types of criminal activity. This sub-section deals generally with post-Katz decisions. The next one considers special issues associated with counterterrorism. The decisions rendered in the two decades that followed Katz were informed by a straightforward principle—i.e., that someone secures privacy protection for herself only by taking steps that deny outsiders access to


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a given object or information. Justice Stewart, it will be recalled, remarked in Katz that someone “who occupies [a phone booth], shuts the door behind him, and pays the toll . . . is surely entitled to assume that the words he utters . . . will not be broadcast to the world.” But important as this statement is, it has to be considered in conjunction with another about a person’s failure to cut off the world. “What a person knowingly exposes to the public, even in his own home and office,” Stewart remarked, “is not a subject of Fourth Amendment protection.”12 Katz’s stark contrast between exclusion and exposure set the tone for the decisions rendered in the two decades that followed. In generalizing, we can say that those decisions relied on the following rule: there can be no objectively reasonable expectation of privacy (Harlan’s Katz concurrence introduces this criterion, it will be recalled) unless someone has taken steps to insure that an object or information is not exposed to the public. On this reckoning, partial exposure undercuts a claim to constitutional privacy protection. Even a modest degree of exposure makes a privacy claim untenable, for in allowing this someone assumes the risk of discovery by an outsider. The following cases—each concerned with warrantless non-trespassory investigation—illustrate this point: Cases Involving Reliance on Third Party Intermediaries If someone deposits money in a bank, that person has no Fourth Amendment privacy interest in the money entrusted to the bank, the post-Katz Court held, since the money has been “exposed to the public.”13 Similarly, if someone makes a phone call using a land line provided by a telephonic service provider, the numbers dialed are “exposed” to the public (i.e., the service provider’s employees) and so are not a subject of Fourth Amendment privacy protection.14 Cases Concerned with Places Partially Exposed to the Public If someone erects high walls around her backyard but fails to cover it from aerial inspection, that person can’t claim an informational privacy interest in

12

Katz v. United States, 389 U.S. 347, 352 (1967). United States v. Miller, 425 U.S. 435, 443 (1975). 14 Smith v. Maryland, 442 U.S. 735, 744 (1979). 13


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the contents of the yard as long as someone in an aircraft (a plane or helicopter, for instance) above the place can discover its contents.15 Cases Concerned with Fully Enclosed Objects Placed in Public Places Even garbage wrapped in an opaque bag and left out on the street doesn’t merit constitutional protection, the Court held, since tramps and snoops (including inquisitive journalists, it noted) can rip open a bag and inspect its contents.16

The cumulative effect of the decisions just noted is to offer narrow protection for informational privacy. The decisions don’t challenge the soundness of Katz’s conclusion concerning the contents of phone conversations. Rather, they limit its reach. They suggest that informational privacy is achieved only by the complete exclusion of outsiders. Absent an act of exclusion such as closing a phone booth door, the cases suggest, a person can’t claim privacy protection since she has left something exposed (if only modestly) to the public (with this term understood to include even thirdparty functionaries charged with processing matters such as financial records or phone logs). Curiously, decisions rendered in the twenty-first century have been more solicitous of informational privacy. I discuss these in the chapter’s final section. What should be noted here is that 1970s and 80s cases continue to loom large (in particular, Smith v. Maryland,17 the 1979 decision that rejects a claim to a privacy interest in the contents of phone numbers dialed), for while the facts in these cases have no direct bearing on terrorism, the rules they announced provided the framework for legislative initiatives undertaken in the wake of the 9/11 attacks. The post-Katz decisions that analyzed informational privacy in a narrow way set the stage, in other words, for the statutes and executive action undertaken in the twenty-first century to combat terrorism. We can now turn to this special feature of modern privacy law. Counterterrorism Initiatives The 9/11 attacks prompted numerous congressional counterterrorism initiatives, not only the USA PATRIOT 15

United States v. Ciraolo, 476 U.S. 207 (1986) (aerial overflight by plane from one thousand feet); Florida v. Riley, 488 U.S. 445 (1989) (aerial overflight by helicopter from 400 feet). 16 California v. Greenwood, 486 U.S. 35 (1986). 17 442 U.S. 735 (1979).


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Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) but also revisions of already-existing legislation bearing on surveillance.18 The attacks also prompted President George W. Bush to launch a secret initiative, at first called Stellarwind and later called the Terrorism Surveillance Program,19 in defiance of legislation already on the books. When The New York Times revealed Stellarwind’s existence in December 2005, Bush’s aides defended it as constitutionally legitimate—and so argued that the president may disregard legislation despite the fact that he’s constitutionally charged with its enforcement. If this argument were sound, informational privacy rights would have to be said to exist at the discretion of the president. It’s essential, then, to note why Bush’s order was constitutionally unacceptable. After that, we will be able to turn to congressional initiatives that, while not threatening informational privacy as fundamentally as Stellarwind, have nonetheless imperiled it substantially. (i) Executive Branch Defiance of Statutory Safeguards: President Bush’s Stellarwind Order In coming to terms with Stellarwind, four distinctions should be borne in mind. One has to do with the difference between executive initiatives that run counter to legislation and those authorized by it. The second has to with the difference between bulk acquisition of data and acquisition of this on the basis of individualized suspicion. The third is concerned with the difference between contentand pattern-searches. And the final one has to do with the difference between searches of people in America and those outside the country.20 President Bush’s October 4, 2001 executive order authorizing Stellarwind is understandable in terms of the former side of each of these distinctions. Section 702 of the Foreign Intelligence Surveillance

18

115 Stat. 272 (2001). For discussion of Stellarwind’s origins and also of the name change to Terrorism Surveillance Program, see Charlie Savage, Power Wars: Inside Obama’s Post-9/11 Presidency 180–96 (2015). 20 FISA distinguishes between “United States persons” (citizens, aliens admitted for purposes of residence, and some other categories) and those who are not United States persons. See 50 U.S.C. 1801 (i). In avoiding this technical term, I somewhat simplify matters, but I don’t distort the overall significance of the Stellarwind order. 19


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Act of 1978 required the government to obtain warrants in order to examine the contents of Americans’ communications—phone calls and email messages, for instance—sent abroad. Stellarwind dispensed with these requirements. In doing so, it ran counter to Fourth Amendment case law,21 in particular to the cases that informed Congress’s adoption of Section 702. Moreover, it ran counter to the Article II clause that requires the president to enforce the law. Not surprisingly, publication of the Times article prompted a public outcry that Bush’s order violated the Constitution.22 The President’s lawyers argued otherwise. Article II, William Moschella, an Assistant Attorney General, contended, vests the president with “the responsibility to protect the Nation from further attacks.” Because it does, the president has “all necessary authority [under the Constitution] to fulfill that duty.” Moschella bolstered this claim by citing the Authorization of the Use of Military Force, a resolution Congress adopted three days after the 9/11 attacks which, among other things, instructs the President to use “all necessary and appropriate force against those nations, organizations or persons [which] he determines planned, authorized, committed, or aided” the attacks. Given AUMF and Article II, administration officials claimed, the President possessed the power under the Constitution to disregard FISA’s statutory safeguards.23 But does the Constitution vest the President with the power to disregard statutes adopted by Congress? It’s arguable that the President may sometimes do so. In this instance, though, it’s essential to realize that FISA contained an exclusivity provision, one that limited national

21

The leading case is United States v. United States District Court, 407 U.S. 297 (1972), which rejected the government’s contention that it possesses inherent authority under the Constitution to conduct warrantless electronic surveillance within the United States for national security purposes. 22 Savage writes: “That Stellarwind violated FISA was well understood.” See Savage, Power Wars, supra note 19, at 185. 23 Letter of William Moschella, Assistant Attorney General, to the Chairmen and Ranking Members of the House and Senate Intelligence Committees, December 22, 2005, available at www.justice.gov/sites/default/files/ag/legacy/2007/01/11/surveillance6.pdf.


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security surveillance to the circumstances it mentions. An argument on behalf of Stellarwind’s constitutionality thus necessarily relies on the claim that the Constitution is at war with itself—that an interpretive premise concerning the president’s plenary power trumps the Article II requirement that the President take care to enforce the statutes of the United States. This is surely a problematic way to analyze executive power. If we turn to Supreme Court commentary, we can see that Justice Frankfurter’s conclusion about the unconstitutionality of President Truman’s order to seize the steel mills during the Korean War is also applicable to the Bush executive order. “It is one thing to draw an intention of Congress from general language,” Frankfurter wrote, and to say that Congress would have explicitly written what is inferred, where Congress has not addressed to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to the seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is . . . to disrespect the whole legislative process and the constitutional division of authority between President and Congress.24

But even if Stellarwind’s content component amounted to an unconstitutional exercise of executive branch authority, would other initiatives involving interception of the contents of communications also be impermissible if undertaken in the absence of a warrant? For example, would it be unconstitutional for executive branch officials to read Americans’ communications without a warrant if Congress were to permit this in the case of a national emergency (as determined by the President)? Given this scenario, it might be said, Congress and the President challenge the authority of the Fourth Amendment. This may not be accurate, however, for even the Fourth Amendment may allow for virtually complete loss of privacy in emergencies. This is because the “[t]he touchstone of the Fourth Amendment is reasonableness” (to quote from a recent Court 24

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring).


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opinion),25 so the proper answer to the question just posed is that it is constitutionally conceivable that the government may strip people of a wide variety of informational privacy rights in a national emergency. This is merely a notional possibility, however. As matters now stand, there is no constitutional death warrant for informational privacy. (ii) The Snowden Revelations But informational privacy is most certainly on life support, as Edward Snowden’s 2013 revelations amply demonstrated. Three further distinctions help to explain why this is so. One relies on a scale—between unannounced law, secret law (i.e., rules announced to a small circle of officials but not generally announced), and public law. A second has to do with the difference between the acquisition of data (i.e., the moment at which the government secures access to information) and its dissemination (i.e., the act of sharing it among government agencies). And a third has to do with high- and low-level violations of the law. These further distinctions matter because the Obama, unlike the Bush, administration made substantial efforts to comply with statutory mandates but relied on secret lawmaking to engage in the bulk acquisition and dissemination of personal data, including data about the pattern of communications (phone calls and email messages, in particular) and financial deposits.26 Post-Katz decisions of the 1970s and 80s prepared the way for bulk collection of personal data. That is, with the Court having held in Smith v. Maryland that there is no constitutionally protected privacy interest in the phone numbers someone dials, Section 215 of the PATRIOT Act accepted Smith’s invitation by authorizing the government to acquire (through National Security Letters that don’t require court approval27) a wide range of business records, including data bases concerning phone calls made on land lines and cell phones. The content of phone calls remained off limits (the legitimacy of Katz’s conclusion

25

Florida v. Jimeno, 500 U.S. 248, 250 (1991). For discussion of the differences between the Bush and Obama administrations with regard to surveillance, see Savage note 19 supra, at 560–1. 27 Numerous statutes authorize issuance of national security letters (and accompanying gag orders). For a summary of current law, see Charles Doyle, “National Security Letters in Foreign Intelligence Investigations: Legal Backgrounds,” available at www.fas.org/sgp/crs/intel/RL33320. pdf. 26


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was unquestioned), but the pattern of each person’s communications was subject to warrantless inspection by NSA officials as long as the pattern was deemed relevant to a counterterrorism investigation. In 2013, Snowden revealed that the NSA, FBI, and other national security agencies had used Section 215 to secure court approval for monitoring the pattern of virtually every American’s communications and financial records. Snowden’s disclosures established that the NSA often went beyond the terms of judicial orders.28 None of the Snowden revelations indicates, however, that the NSA’s director deliberately violated the law (indeed, it was the administration that reported noncompliance to the courts29), so the key point established by the Snowden revelations hadn’t to do with occasional low-level transgressions but with the enormity of the judicially authorized surveillance operations undertaken by the Obama administration—and with the willingness of government agencies to share data with one another, thereby increasing substantially the likelihood that low-level officials will abuse the information to which they have access. It’s also essential to consider the possibility that there were other operations of which Snowden was unaware. The Court’s decision in Clapper v. Amnesty International, a 2013 case, underscores the importance of this point. The Clapper Court accepted the Obama administration’s argument that American lawyers for foreign clients do not have standing to find out whether the government is reading the contents of their clients’ messages.30 Clapper thus ratified an important component of the regime of secret law that had mushroomed in size during the decade following 9/11.31 The new 28

See Savage, Power Wars, supra note 19, at 564. Id. 30 133 S.Ct. 1138 (2013). 31 The Clapper Court stated that parties other than the plaintiffs in the case might have standing to challenge FISA-based searches: “[I]f the Government intends to use or disclose information obtained or derived from an 1881a acquisition [i.e., an acquisition pursuant to FISA] in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition” (Id. 1154). But when criminal defendants sought to avail themselves of this possibility in subsequent cases, lawyers from the Justice Department declined to reveal whether a FISA-based search had led to discovery of the evidence against them. See Savage, Power Wars, supra note 19, at 587. 29


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regime isn’t wholly arbitrary. The Snowden disclosures established that FISA court judges review government data-acquisition orders, oversee data-mining efforts, and supervise interagency information-sharing programs.32 Moreover, as became clear after the Snowden revelations, members of Congress closely monitor court decisions (though these are not made available to the public) and executive branch compliance with relevant statutes (though examples of non-compliance are also not revealed).33 But given the framework of secret law now in place, one has to say not only that informational privacy is threatened by the bulkcollection programs of which we’re aware and also that a further, and perhaps more serious, threat may be posed by those of which we aren’t aware. Moreover, even if we now know everything the government is doing, it’s clear beyond a doubt that informational privacy is imperiled by the surveillance state.

Back to Basics: The Forbearance Model of Informational Privacy Protection It’s essential, then, to rethink post-Katz privacy decisions. Fortunately, some members of the Court have started to do so. Concurring in the Court’s opinion in United States v. Jones, for instance, a 2012 case, Justice Sotomayor called for reassessment of Smith v. Maryland, the 1979 decision critical to the USA PATRIOT Act given its holding that people don’t have a privacy interest in the phone numbers they dial. Smith’s third-party doctrine—i.e., its premise that someone forfeits a privacy claim when she “knowingly exposes” information to a service provider such as a phone company—“is ill-suited to the digital age,” Sotomayor wrote, since “people reveal a great deal of information about themselves to third parties in the course of carrying out mundane

32

For examples of judicial oversight, see Savage, Power Wars, supra note 19, at 564–6. For examples of legislative oversight of executive branch surveillance agencies, see id. 579 and 582. 33


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tasks.”34 Sotomayor’s criticism of the past didn’t end here, however. Post-Katz decisions were flawed generally, she contended, for the Court had failed to distinguish privacy from secrecy. Whatever society’s reasonable expectations of privacy may be, Sotomayor stated, “they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite to privacy.”35 Sotomayor went no further than this. She didn’t explain how she would revise Smith. She didn’t comment on the new regime of secret national security law. Nor did she propose a way to distinguish between secrecy and privacy. Sotomayor’s Jones concurrence thus set the stage for a reassessment of post-Katz decisions but didn’t provide a program for rethinking the previous half-century of constitutional doctrine. This section takes a first step toward providing the program needed for reassessing the past. First, it offers a criterion for distinguishing privacy and secrecy. Second, it suggests that secret law-making must be minimized as far as privacy is concerned (and must be minimized in other contexts as well). And third, in turning to post-Katz issues, it explains why there is a reasonable social expectation of outsider forbearance as far as privacy is concerned but why no such expectation exists with respect to secrecy. The expectation at stake here isn’t one of perfect etiquette, I suggest. Outsiders aren’t expected to pretend not to notice matters unmistakably presented to the public. Rather, the expectation is one that calls for outsider restraint in the face of clear indications of an insider’s interest in privacy. It’s thus an obligation of restraint that must be honored by government officials given the Katz premise that everyday conventions determine the scope of informational privacy interests. Privacy vs. Secrecy In closing a phone booth door (or in closing the door to a bathroom or in sealing an envelope), someone secures secrecy as well as privacy for herself. Given the overlap between these two terms, it’s understandable that the Katz Court didn’t bother to distinguish between privacy and secrecy, for Charles Katz achieved both for himself. Had the

34

United States v. Jones, 132 S.Ct. 945, 957 (2012) (Sotomayor, J., concurring) (citing Smith v. Maryland, 442 U.S. 735 (1979)). 35 Id. 957.


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Court considered other examples, though, it might have made sense of the distinction. Consider, for instance, a game of poker in which someone holds her cards close to her chest.36 Or consider a televised football game in which a coach covers his mouth while talking into a microphone to make sure the camera doesn’t enable an outsider to read his lips.37 In each instance, the term secrecy is apt while privacy is not. The same terminological point is in order as far as institutions are concerned. Governments and corporations hoard information for strategic purposes by excluding outsiders from it, but the term privacy isn’t employed to talk about the exclusionary practices followed by these institutions. Rather, one speaks of secret and top secret government information38 (and so of secret law, about which more will be said in a moment). Moreover, one speaks of trade secrets as far as corporations are concerned; one doesn’t speak of corporate privacy.39 Do the points just made establish only a terminological anomaly—or do they suggest something more significant? It’s clear that the latter option is preferable. The term privacy is used in settings where a person excludes others for purposes deemed essential to dignity and flourishing. The term secrecy can be employed in these settings as well, for in shutting a door someone exercises informational control vis a vis those excluded (thus achieving secrecy as well as privacy). But if it’s reasonable for an outsider to conclude that an exclusionary act will promote individual dignity or flourishing, then privacy is the appropriate term to employ rather than secrecy, for the latter has a broader scope in that it can cover

In Babbitt, Sinclair Lewis remarks that “he played poker close to the chest.” [1922] 48 (Signet Books, 1961). Lewis appears to assume that other players could, consistently with the rules, discover the cards someone has if he fails to keep his cards close to his chest. 37 See Mike Freeman, “Pro Football: Inside the NFL; Some Coaches Reading Lips to Steal Plays,” The New York Times, October 28, 2001. No football professsional interviewed for Freeman’s story questioned the propriety of lip-reading. Jim Fassel, coach of the New York Giants at the time, remarked: “There have been rumors of this happening. But if someone can pull it off, more power to them, because it seems extremely hard to do.” 38 See Executive Order 13526 (2009) for guidance as to the use of these terms. 39 The United States Code relies on the concept of trade secrets in criminalizing certain acts that acquire the information from a company. See 18 U.S.C. 1832 (“Theft of Trade Secrets”). 36


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exclusionary practices which, in the ex ante, an outsider can conclude are not being undertaken for the purposes just mentioned. Confirmation of this generalization can be found in the Katz Court’s unreflective—instinctive, one might say—reliance on the term privacy rather than secrecy. Although Charles Katz secured privacy and secrecy for himself on closing the phone booth door, the term privacy was the appropriate one in this setting given the reasonable assumption, from an outsider’s perspective, that the exclusionary measure was being undertaken for a dignitary reason. That the act of exclusion turned out not to have been used for such a reason (as later became clear, it was used to commit a crime) doesn’t figure in the determination of terminological propriety, for what matters is an outsider’s ex ante reasonable determination of the function of an exclusionary practice—and a stranger’s act of closing a phone booth door appears to have a dignity-enhancing function. Put differently, the possibility of abusing the conventions that sustain informational privacy can be classified as a socially acceptable cost when weighed against the benefit of insuring individuals with the security needed for personal development. Indeed, privacy’s centuries-long ascent to a respected place in social values is understandable in terms of exactly this cost-benefit calculation. Secret Privacy Law Because governments protect secrets but can’t lay claim to privacy, no terminological problems arise in speaking of secret privacy law, for law is administered by government. Moreover, given terrorist threats, it’s eminently reasonable to say that certain kinds of evidence shouldn’t be produced in open court since this might compromise national security. (The state secrets doctrine relies on just this point.40) But while no terminological difficulty arises here, a major problem of principle is implicated by government efforts to deny people knowledge of the rights pertinent to the conduct of everyday life. Indeed, the very possibility of a coherent body of privacy rights is threatened by the development of secret law, for as matters now stand a bifurcated set of rules is emerging, with one devoted to privacy interests as they’re affected by terrorism-related

The Court first recognized a government state secrets privilege in United States v. Reynolds, 345 U.S. 1 (1953).

40


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investigations and the other concerned with the same interests as affected by the investigation of ordinary crime. No Supreme Court opinion has acknowledged this possibility. It can’t be disregarded, however, given the complex system of (secret) FISA-based rules for terrorism investigations and also the Court’s deployment of standing doctrine in cases such as Clapper. Two complementary remedies are in order here. One is to for the government to lift as much as reasonable the shroud of secrecy for terrorism investigation. The Snowden revelations establish that a good deal more than was initially considered feasible can be disclosed to the public without jeopardizing national security. And second, to the extent that secrecy is essential, government officials must explain (in admittedly general terms) why this is indispensable. At stake is the trust that must be regained to insure democracy’s long-term stability. Terrorism, it can readily be agreed, poses an unprecedented threat to constitutional government. The threat, however, doesn’t consist solely of a risk to public safety. It centers as well on continuation, as much as is reasonably possible, of the institutions of public law-making and public adjudication. A Reasonable Expectation of Forbearance for Privacy, but not for Secrecy In returning now to privacy, we can begin by noting why it was sound for Justice Harlan to speak of an objectively reasonable expectation of privacy but not to refer to an objectively reasonable expectation of secrecy. Forbearance—i.e., outsider restraint—is called for when an outsider is confronted with something that merits substantial respect. Privacy merits respect not because of the brute fact of exclusion but because of the social consensus that has developed over the course of centuries about the importance of letting people set the terms of their own lives. Social understandings about forbearance obligations, in other words, speak to the connection between the different components of privacy. Outsider forbearance is in order not merely in the face of the act of shutting a phone booth door but also when someone resides in a home (thus the reluctance people often feel when deciding whether to knock on a closed door) and even for the autonomy interest people have in living life on their own terms (thus the caution people exercise even when confronted with a couple that quarrels in public). In each instance, an outsider concedes leeway to an insider because of the importance of the dignity and autonomy interests at stake.


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Mere secrecy, in contrast, isn’t accompanied by forbearance expectations. On the contrary, because secrecy is a morally neutral category, no obligation exists to grant leeway to someone seeking it. It’s for this reason that vigilance is in order when someone plays poker or when a coach talks into a headset while formulating strategy for a football team. These are occasions when an outsider can tell that information is being hoarded for strategic, not personal, reasons—so an outsider is still expected to honor relevant conventions (don’t strip away a poker player’s hand, for instance), but these conventions don’t call for forbearance if an insider fails to take careful precautions concerning what’s being concealed. The same point applies to institutions—to government and corporations, for instance. To note this isn’t to say that secrecy merits no respect at all; as was just suggested, there are of course many occasions when government must preserve secrets in order to promote security interests. Rather, it’s to say that the forbearance considerations peculiar to personal development don’t come into play when secrecy alone is at stake. To apply Harlan’s terminology to a poker game, we can say that each poker player has a reasonable expectation of reciprocal vigilance—no more or less. Needless to say, the concept of forbearance is insufficient by itself to resolve the numerous gray-area issues associated with the protection of informational privacy. But does it even provide a sound starting place for rethinking constitutional protection in this area? I believe it does. However, this point is best made not by bare assertion but by comparing a forbearance framework with competing ways to think about protecting informational privacy. In particular, three alternatives merit consideration, two of which dispense with Harlan’s reasonable expectations test altogether. It’s by considering the shortcomings of these alternative criteria that one can establish that the forbearance model, as used to extend and deepen the Harlan test, offers the best way to rethink informational privacy protection. (i) Scalia’s Original Practices Criterion Long dissatisfied with Stewart’s Katz opinion and also with Harlan’s reasonable expectations concurrence, Justice Scalia proposed an alternative to it in his opinion for the Court in Kyllo v. United States, a 2001 case that invalidated


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warrantless surveillance of the contents of a home from outside by means of a thermal imaging device. Courts, Scalia asserted, should “assure[] preservation of that degree of privacy against government that existed when the Fourth Amendment existed.”41 The difficulty with this should be obvious. Not only was privacy not discussed at the time of the framing, the constitutional categories actually employed—searches and seizures, in particular—were used to protect only tangible objects. Scalia’s alternative thus protects informational privacy incidentally, but not directly. (ii) Amsterdam’s Free and Open Society Criterion Concerned that society’s privacy expectations could eventually be debased as people adjust to a regime of “Big Brother” surveillance, Anthony Amsterdam proposes dispensing with the Harlan test by charging the courts to ask whether the government’s conduct in a given case is “[c]onsistent with the aims of a free and open society.”42 Amsterdam’s concern about the circularity of the Harlan criterion is surely sound. His remedy is unnecessary, however. As for the circularity concern, the forbearance model can address this by focusing on the general structure of privacy conventions. That is, in employing the model, judges should consider these conventions’ general function in protecting personal autonomy. They don’t have to consider specific conventions, for these are often inconsistent with one another (as should be expected given the fact that there is no single legislator for everyday conventions) and may indeed be subject to debasement by the advent of “Big Brother” technology. But the Amsterdam remedy isn’t merely unnecessary, it’s also unsound, for in adopting it judges would make themselves into Platonic guardians of the law, deciding what’s best for society. It’s arguable that Amsterdam’s criterion would produce much the same outcome as would the forbearance model. But even if this were to happen, the great virtue of the Harlan criterion is that it places privacy

41

Kyllo v. United States, 533 U.S. 27, 34 (2001). Anthony Amsterdam, “Perspectives on the Fourth Amendment,” 58 Minnesota Law Review 349, 403 (1974).

42


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at the center of judicial consideration. It relies on a long-term evolutionary process in Anglo-American life, one in which privacy rights came to cherished as components of individual freedom. In focusing on privacy, judges can (accurately) present themselves not as the authors of novel rights but as defenders of a structure of practice that has become embedded in everyday life. (iii) Strahilevitz’s Public Opinion Criterion The public’s privacy expectations may never, in any case, descend into a downward spiral. If the reaction to Snowden’s disclosures is any indication, the public’s reaction to a policy of blanket surveillance is indignation, not acquiescence. Taking this point to heart, scholars have proposed that society’s specific expectations, as registered in public opinion surveys, should serve as the criterion for assessing government searches. As Lior Strahilevitz has put it, “[t]he most obvious way [to implement the Harlan test] is to ask lots of people what level of privacy they expect in a given scenario and tally those responses.”43 This approach substitutes empirical research for seat-of-the-pants conclusions reached by judges—clearly a good thing. But the Strahilevitz proposal is open to serious objections as well. One is that empirical inquiry is unlikely to capture the fine-grained details characteristic of actual practice. Empirical inquiry can focus on archetypes (for instance, whether outsiders should exercise restraint on seeing someone occupy a phone booth), but unless public opinion pollsters are willing to rely on extremely lengthy questionnaires their surveys can’t capture details of a given phone booth occupancy (whether a booth door was fully closed, whether the person speaking was shouting so loud that outsiders could hear through the door, etc.). Needless to say, Katz relied on an archetype, not on a thick fact-pattern, but privacy cases often

Lior Strahilevitz and Matthew Kugler, “Surveillance Duration Doesn’t Affect Privacy Expectations: An Empirical Test of the Mosaic Theory,” 2016 Supreme Court Review – (in typescript at 12–13). For another proposal that relies on public opinion surveys to determine reasonable expectations of privacy, see Christopher Slobogin and Joseph Schumacher, “Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at ‘Understandings Recognized and Permitted by Society,’” 42 Duke Law Journal 727 (1993). 43


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hinge on details that vary an archetype—and empirical studies rarely ask respondents to consider the details that convert into an archetype into a concrete case. Beyond this problem of case-specificity lies another one having to do with respondent imagination—in particular, problems posed by the advent of technology with which the public isn’t acquainted. Because the forbearance model focuses on the structure of outsider/insider relations, it’s compatible with judicial efforts to draw analogies between existing conventions and new ones—analogies between land-line and cell phone telephone communications, between letters sent through the mail and email messages sent via servers, and so on. In contrast, empirical studies would have to ask respondents to imagine technological possibilities they have yet to deal with in their lives. It’s preferable to have judges consider the similarities and differences between new and old technologies. This is how Brandeis approached the wiretapping issues in Olmstead. It’s how we should proceed in the future as well. The Forbearance Model: Protection for Private Facts as Well as Privacy Signals One further feature of the forbearance model requires consideration—the need to focus on private facts as well as privacy signals when protecting informational privacy. Katz dealt only with the latter. Because the Katz Court concentrated solely on the signal sent by shutting a door, it disregarded the possibility (which frequently arises in everyday life) that someone will fail to signal unmistakably an interest in excluding others from information or an object but will nonetheless assume that others will exercise forbearance given its private status. This point has a bearing on places: the stalls in public restrooms often have see-through slits, for instance, but people using the toilets know that privacy conventions call on outsiders to exercise restraint about peering through the slits given the naked body’s status as a private object. It also has a bearing on documents: even when someone fails to send a signal indicating an interest in excluding outsiders from access to her health records, the subject of the records can reasonably assume that third-party handlers are expected to exercise restraint given the matters discussed. Given examples such as these, we can say that it’s unsound to think of the Katz fact-pattern as a paradigm for all informational privacy claims.


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Katz does of course serve as a general declaration of independence from informational privacy. Moreover, its fact-pattern is helpful for thinking about privacy signals sent to strangers in settings where outsiders are wholly excluded. But it doesn’t provide guidance for settings where only partial exclusion is achieved, nor does it provide guidance for settings where objects or information conventionally considered private are not the subject of total access-exclusion. If secrecy and privacy were identical, the latter examples could easily be resolved, for once there is less than total exclusion secrecy is lost. We’ve seen, though, that privacy isn’t subject to this kind of binary reasoning. Once it’s reasonably clear to an outsider that something pertinent to human dignity is at stake, scalar possibilities have to be considered, with the result that matters deemed intrinsically private have to be weighed against the definiteness of the signals used to exclude outsiders. Scalar reasoning calls for the exercise of measured judgment whereas binary reasoning doesn’t. If we return to Harlan’s reasonable expectations test, we can see that it’s compatible with scalar reasoning. Harlan, it has to be granted, failed to note the possibility that private facts and privacy signals are relevant to constitutional claims (and so left readers with the misimpression that objectively reasonable privacy expectations exist only when someone totally excludes outsiders by means of an unmistakable signal). It’s possible, however, once Sotomayor’s concurring remarks in Jones are taken seriously, to see how scalar reasoning can be integrated into the Harlan framework. By rethinking that framework, we can make sense of the forbearance expectations essential to informational privacy.

Applying the Forbearance Model The forbearance model doesn’t require repudiation of all post-Katz privacy decisions, nor does it require rejection of the entirety of the counterterrorism legislation enacted in the wake of the 9/11 attacks. This is because it accepts the premise that matters unmistakably displayed to the public are not subject to a privacy claim. If A “knowingly exposes” information to strangers who have no special relationship to her (to draw on a phrase


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employed in Stewart’s Katz opinion), then it’s of course sound to say that A has no valid privacy interest in the information. But the forbearance model, in relying on conventional understandings that certain matters are private even if disclosed on a limited basis to third-parties charged with preserving their protected status, calls on the government to respect the privacy interest in those matters. Thus if B provides personal information to a third-party charged with storing it, the forbearance model suggests that B has a valid privacy claim against strangers (despite the third-party’s access to the information). And the forbearance model also relies on conventional understandings that complete exclusion isn’t required for matters not deemed personal provided (a) clear signals are sent to outsiders indicating an interest in keeping others out and (b) it’s possible that the matter at stake is related to the preservation of dignity. So if C takes unmistakable steps to deny outsiders the usual means of access to an object or information, there is good reason under the forbearance model to say that C has a valid privacy claim even if the access-denial isn’t complete. This section begins with these straightforward points in rethinking post-Katz decisions. It then turns to the more difficult surveillance issues that have arisen in the post-9/11 world. In doing so, it considers not only the meta-data searches employed in counterterrorism programs but also the global surveillance capabilities that can be used for terrorist and ordinary-crime investigation. Post-Katz Privacy Cases of the Final Third of the Twentieth Century Not all post-Katz cases produced outcomes incompatible with the forbearance model. For example, in Minnesota v. Olson, a 1990 case, the Court held that the police may not conduct a warrantless search of the home in which someone has been welcomed as a guest.44 A decade later, in Bond v. United States, the Court concluded that police officers may not feel the exterior lining of an opaque duffel bag a passenger places in the overhead compartment of a bus to determine whether drugs are stored inside the bag. In each instance, the Court interpreted Harlan’s reasonable expectations test from a forbearance perspective (though the term forbearance wasn’t used). Bond is particularly significant in this respect,

44

Minnesota v. Olson, 495 U.S. 91 (1990).


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for it declares that although “a bus passenger clearly expects that his bag may be handled [, h]e does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner.”45 It’s doubtful empirical studies of actual privacy expectations have ever reached this level of specificity (bus vs. air travel, duffel bag vs. hard-surface luggage, incidental vs. exploratory touching) and in any event none is cited by the Court, so Bond serves as a helpful example of the forbearance model in action. It doesn’t rely on fine-grained observational studies of social conventions. Rather, it interprets the structure of everyday conventions, placing its thumb on the scale of outsider restraint given informational privacy’s function in promoting the autonomous conduct of personal life. Bond, however, is an outlier. Most late twentieth century post-Katz decisions emphasized vigilance rather than forbearance. Smith v. Maryland, the 1979 case that set the stage for the PATRIOT Act’s Section 215 authorization of warrantless collection of business records, captures the vigilance premise by stating that a land-line subscriber “assume[s] the risk that the [phone] company would reveal to police the numbers he dialed.”46 The difficulty with this argument should be clear, for risk-analysis strongly weighted against insiders is incompatible with a forbearance approach to private facts. The phone numbers someone dials, the email messages someone sends and receives, the deposits and withdrawals someone makes at a bank—these and other transactions can readily be placed under the heading of private facts. If they’re disclosed only to employees of the companies charged with carrying out transactions they’re supposed to handle, the forbearance argument for excluding other outsiders is strong. The government, in other words, should be placed in the same position as someone behind a depositor in a line at a bank or outside the home from which a phone call is made. What about less than complete exclusionary measures for matters that can’t reasonably be classified as private facts? For backyards that are surrounded by high walls, for instance, and thus subject only to aerial

45 46

Bond v. United States, 529 U.S. 334, 338–9 (2000). See supra note 14 and accompanying text.


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inspection? Or for the contents of opaque garbage bags that have been tied tight? Post-Katz analysis relied heavily on the assumption-of-risk premise here as well. In the garbage-inspection case the Court noted that scavengers and snoops frequently examine matters that haven’t been wholly protected from outsider inquiry, thus suggesting that reasonable expectations hinge on the risk outsiders will engage in behavior that’s viewed censoriously.47 The proper resolution of these cases is to emphasize forbearance. An exclusionary signal having been sent to outsiders, it is up to them (and to government officials as well, in occupying the position of an outsider) to refrain from snooping. One further correction of post-Katz cases from the 70s and 80s is in order. If informational privacy is something that matters because it promotes individual dignity, one can’t then speak of a corporate privacy interest.48 Corporations have a legitimate interest in building up trade secrets; they don’t, however, have privacy interests. The Court’s solicitude for corporate privacy dates back to Boyd v. United States, the 1886 case that first suggested the Constitution protects “the privacies of life.”49 But as our analysis makes clear, informational privacy exists only to further the conduct of personal life, so the post-Katz cases that reason in terms of corporate privacy should be overruled. Corporations are entitled to protection of their property interests under the Constitution, but government efforts to discover information about them don’t implicate privacy interests. Put differently, the term privacy is abused when the adjective corporate is used to modify it. Post-9/11 Counterterrorism Initiatives If Smith’s conclusion is set aside, what would be the ramifications for the Section 215 bulk collection of metadata? The ramifications would be momentous if the pattern

47

California v. Greenwood, 486 U.S. 35, 40 notes 3 and 4 (1988). Cases that rely on the concept of corporate privacy include Donovan v. Dewey, 452 U.S. 594 (1981) (administrative search of premises), and Dow Chemical Company v. United States, 476 U.S. 227 (1986) (aerial overflight of factory to check on compliance with environmental regulations). The latter claims to draw on Katz, but the citation is manifestly inapposite since it was clear when the government airplane flew over Dow’s factory that nothing related to the autonomous conduct of personal life was being inspected. 49 116 U.S. 616, 630 (1886). 48


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of someone’s phone calls or email messages merits as much protection as the content of those calls and messages, for a warrant backed by probable cause would be required to discover in each instance the target of any communication. A conclusion such as this is sound, however, only if one reasons in terms of the binary distinction privacy/no privacy. If one reasons instead in terms of a scalar conception of privacy, on the other hand, the contents of communications can be classified as more private than patterns in sending and receiving them. This scalar premise is of course essential to privacy conventions, for some things—the naked body, the contents of a diary, or a love letter—are viewed as more private than others and so are considered to merit an extra degree of forbearance. Once a scalar approach is employed, it becomes possible to see that constitutional protection can be granted, in limited form, to the bulk collection and analysis of communications metadata. Each person has a privacy interest, though a relatively modest one, in the pattern of her incoming and outgoing communications. That interest is vindicated as long as the government begins its inquiry into metadata by considering mere numbers and addresses—and so turns to name-identifiers only after crossing the threshold of reasonable suspicion. In other words, provided government investigators begin with a number or address (a seed, to use the terminology of surveillance organizations50) known to be involved in terrorist activity, their inquiry into communications with the seed is privacy-protective because the inquiry doesn’t lead to identification of a person until after a connection has been established with the seed. On this analysis, an investigation meets constitutional muster if it builds incrementally from less private to more private information. The progression that’s constitutionally required is analogous to the stages of intrusion on freedom of movement permitted in police stops and arrests, with stops permitted on the basis of reasonable suspicion

50 For analysis of NSA’s procedures in light of this terminology see President’s Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World 102–3 (2013).


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and arrest permitted only when stronger evidence of possible wrongdoing is available to the government.51 What about the actual inspection of communications permitted by FISA Section 702? As noted earlier, the Bush administration’s Stellarwind program held out the prospect of indiscriminate inspection of the contents of Americans’ calls and email messages abroad. Assuming that the government is now honoring FISA, constitutional privacy protections are perhaps being satisfied. But nothing more definite than a perhaps is in order given standing rules of the kind deployed by the Clapper Court. Indeed, because Edward Snowden’s disclosures revealed that there were routine NSA compliance issues under the Obama administration (not the kind of deliberate flouting of statutory requirements such as those of the Bush administration, but substantial problems nonetheless52), there is good reason to be wary of claims about government agencies’ fidelity to the law. Informational privacy, one can say, is now permanently imperiled given Clapper standing on the one hand and the government’s proclivity to skirt the law as established by whistleblower leaks concerning the NSA. Surveillance Technology that Can Be Directed at Ordinary Crime as Well as Terrorism As noted at the outset, surveillance devices can contribute not only to counterterrorism efforts but also to those that detect ordinary crime. Even if terrorism ceases to be a threat, pervasive monitoring will remain more than a notional possibility in the years to come. Katz’s declaration of independence for informational privacy interests and Whalen’s conclusion that government retention and dissemination of data are subject to judicial oversight thus will figure

51

The progression is discernible in the diminution of privacy interests for an arrestee by comparison with someone subject to a forcible stop. Compare United States v. Robinson, 414 U. S. 218 (1973) (arresting officer may examine the contents of an arrestee’s pockets even if there is no reasonable basis to fear that these pose a risk to the officer) with Terry v. Ohio, 392 U.S. 1 (1968) (officer conducting a forcible stop may search the contents of the stoppee’s pockets only if she has reasonable basis to fear that the contents pose a risk to her safety). 52 See, e.g., the October 2011 findings of Judge Bates (of the FISA Court), discussed in Savage, Power Wars, supra note 19, at 572.


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prominently in twenty-first century constitutional cases. Although it’s impossible to foresee exactly what will come before the courts, one can discern a possible direction in the facts of United States v. Jones, the 2012 case that prompted Justice Sotomayor’s concurring remarks about the need to distinguish between privacy and secrecy. At stake in Jones was the admissibility of evidence secured over a 28day period following the warrantless installation of a global positioning system (GPS) on a car. The Court unanimously held the evidence to be inadmissible, thereby signaling that it looks skeptically on the use of modern surveillance technology that interferes with privacy interests. But the justices differed substantially as to the rationale for this result. Justice Scalia’s opinion for a five-person majority revived Entick v. Carrington. It held that, because the warrantless attachment of a GPS to someone’s car can be classified as a trespass, government agents engage in a search within the meaning of the Fourth Amendment.53 On this plan-as-draught version of originalism, privacy claims about a car’s movement in public space are irrelevant. All that matters is the fact that the government engaged in an incursion on someone’s property when this wasn’t authorized by a court order. It’s by no means clear, however, that even five members of the Court considered this Entick-based approach satisfactory, for Justice Sotomayor concurred in Scalia’s Jones opinion while also noting the importance of guarding against surveillance technology that monitors movements in the absence of a trespass.54 Given Sotomayor’s comments on the importance of privacy interests, her concurrence is perhaps best taken as an exercise in judicial minimalism. It accepts Scalia’s trespassbased resolution of the case because this offers a convenient way to address a novel issue, but it indicates as well an openness to analysis of surveillance technology in settings where no trespass occurs. Justice Alito’s concurrence (for himself and three colleagues) in the judgment of the Jones Court took a bolder, more privacy-protective position. The core issue in cases of protracted surveillance, Alito

53 54

United States v. Jones, 132 S.Ct. 945, 949 (2012). Id. 956–7 (Sotomayor, J., concurring).


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contended, hasn’t to do with the existence (or absence) of a trespassory incursion on property but with unrelenting observation of behavior in public places.55 In this respect, Katz served as Alito’s guide, not Entick. But Alito went substantially beyond Katz. Stewart’s Katz opinion, it will be recalled, offers no privacy protection for what a person “knowingly exposes to the public,” so Alito distinguished between short- and longterm surveillance of behavior in public places—and argued that the latter, though not the former, is subject to constitutional protection. In adopting this position, Alito confirmed the common-sense understanding that a search doesn’t occur when a police officer notices motorists or pedestrians who pass before her—and so confirmed the analogous understanding, born of modern technology, that short-term closed circuit television monitoring of public behavior is also unprotected. But in singling out protracted surveillance for constitutional protection, Alito sought to vindicate the intuition that no one should follow someone else about for a long period of time. “We need not identify with precision the point at which the tracking of [a] vehicle becomes a search,” Alito remarked, “for the line was surely crossed before the four-week mark” that was reached in this case.56 In deploying this distinction between protracted and short-term surveillance technology, Alito emphasized, as Sotomayor had in her concurrence, the sea-change brought about by the evolution of surveillance technology. Prior to the invention of GPS devices and the like, Alito noted, protracted surveillance was possible on only a limited scale given the costs it imposes on government. Because modern machines have substantially reduced this cost, courts must take this point into account so as to vindicate informational privacy interests. This argument privileges values over practice. It concedes by implication that there may not have been a strong reason to ban protracted one-on-one surveillance

55

Id. 957–8 (Alito, J., concurring in the judgment). Id. 964. This criterion makes it possible to distinguish the surveillance undertaken in Jones from that undertaken in Knotts v. United States, 460 U.S. 276 (1983). In Knotts, the Court followed Katz’s knowing-exposure-to-the-public criterion in holding that a person’s privacy interests are not infringed if government agents follow his car (by means of a beeper properly implanted in an object he had acquired) over an open road. 56


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at an earlier time, but it suggests that this must now be prohibited given the possibility of blanket surveillance by relatively inexpensive devices. Alito’s concurrence thus creatively applies the forbearance model to contemporary technology. It recognizes that the possibility of autonomous personal conduct will be undermined if people believe they are subject to constant monitoring. It recognizes as well that questions about the boundary between the short- and long-term will often be hard to resolve, but it defends a principle pertinent to informational privacy given its function in sustaining personal autonomy. Jones isn’t the only twenty-first century case to have taken an encouraging approach to informational privacy. In Kyllo v. United States, decided in 2001, the Court invalidated a warrantless search of the contents of a home conducted from that home through use of a thermal imaging device.57 In Riley v. California, decided in 2014, it took a strong stand in favor of informational privacy by holding that government agents must obtain a warrant to inspect the contents of a cell phone they take from an arrestee. “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions,” Riley remarked. Because “the same cannot be said of a photograph or two of loved ones tucked in a wallet,” Riley rejected an analogy between the cell phone and traditional repositories of private life such as a wallet.58 Clearly, Riley ramifications beyond cell phones. It recognizes—this time in an opinion of the Court, not merely in a concurrence (as was the case in Jones)—that consideration will henceforth have to be given to the threat to informational privacy posed by technological change. In this respect, Riley holds out the prospect of constitutional protection based on Brandeis’s claim that informational privacy is functionally necessary for the right to be let alone.

57 58

Kyllo v. United States, 533 U.S. 27 (2001). Riley v. California, 134 S.Ct. 2473, 2489 (2014).


Chapter 12: Reappraising the Constitutional Past: Rights of Personal Autonomy

In May 1970, Richard Baker and James McConnell, students enrolled in the University of Minnesota, applied for a marriage license in Minneapolis.1 At the time they submitted the application, it was a crime in Minnesota for anyone to engage in consensual sodomy (the state decriminalized this in 2001, two years prior to Lawrence v. Texas).2 Also, as of 1970 no legal protection against workplace discrimination was available for gays (in 1982, Wisconsin became the first state to offer such protection; Minnesota didn’t adopt similar protection until 1993).3 Indeed, experts on psychology considered homosexuality a disease. The Diagnostic and Statistical Manual, for instance, a guide for clinical practitioners published by the American Psychiatric Association,

Erik Eckholm, “The Same-Sex Couple Who Got a Marriage License in 1971,” The New York Times, May 16, 2015. 2 Doe v. Ventura (Fourth Dist. Ct., County of Hennepin, MN) (May 15, 2001), available at www.qrd.org/qrd/usa/legal/minnesota/doe-v-ventura. 3 See Wisconsin Statute Sect. 111.31 (1982). For Minnesota, see Minnesota Statute 363A.02 (1993). 1

© The Author(s) 2016 W.C. Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_13

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classified homosexuality a mental disorder (a classification that was removed from the manual in 1973).4 Given this inauspicious environment, the Baker/McConnell marriage application might have been dismissed as a quixotic act—or perhaps even as a publicity stunt. There was certainly some element of publicity-seeking in the application. The year earlier, Baker had founded a student organization at the university (FREE—Fight Repression of Erotic Expression) and so of course was anxious to further his group’s cause.5 But more was involved, for Baker and McConnell were living together and so were seeking public validation of their mutual bond. Commenting in 2012 on the process he had set in motion in 1970, Baker made clear the application’s centrality to the course of life he had adopted along with McConnell. “The outcome was never in doubt,” Baker remarked, “because the conclusion was intuitively obvious to a first-year law student.”6 Never in doubt? Legal authorities of the day agreed with Baker’s statement of certainty—but only because they reached the opposite conclusion. The trial judge who entertained Baker’s request for a writ of mandamus dismissed his suit for failure to state a cause of action. The Minnesota Supreme Court unanimously affirmed. The language of the pertinent statute, the Minnesota high court conceded, did not limit marriage to opposite-sex couples. But the “absence of an express statutory prohibition against same-sex marriages” did not mean that such marriages were legal in Minnesota, the court stated the legislature had relied on “that term [i.e. marriage] as one of common usage, meaning the state of union between two persons of the opposite sex,” the Minnesota high court remarked. Baker and McConnell, in other words, were seeking to undermine the legislature’s intentions by imposing a semantically possible application of statutory language that had For the retraction (and discussion of the content of the Diagnostic and Statistical Manual, first through third editions), see “Position Statement on Homosexuality and Civil Rights, 1973,” 131 American Journal of Psychiatry 497 (1974). 5 See Eckholm supra note 1. 6 Baker comment quoted in Patrick Condon, “Gay Couple in 1971 Marriage Ruling Reflect on New Court Challenges,” St. Paul Pioneer Press, December 11, 2012. 4


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been understood to have a more limited application at the time of its adoption. “It is unrealistic to think that the original draftsmen of our marriage statute, which date from territorial days, would have used the term in any different sense,” the court stated.7 This exercise in interpretation privileges unstated authorial expectations over a possible (and unanticipated) application of statutory language. In turning to Baker’s federal constitutional claim, the Minnesota high court also relied on an interpretive strategy that focuses on background expectations. Baker claimed he had a substantive due process right to marry McConnell. No United States Supreme Court ruling concerning marriage, the Minnesota court conceded, addressed the issue of same-sex marriage, but it added that some contained language that presupposed an opposite-sex relationship. For instance, Skinner v. Oklahoma, a 1942 case, remarked that “[m]arriage and procreation are fundamental to the very existence and survival of the race.” Griswold v. Connecticut also focused only on heterosexual relations. Justice Douglas’s opinion in the case, the Minnesota court pointed out, refers explicitly to the “intimate relation of husband and wife” in upholding a right to use contraception and so presupposes a male-female marital relationship.8 In other instances, the Minnesota high court granted, Supreme Court opinions address marriage in gender-neutral terms. This point is significant because Baker also advanced an equal protection argument concerning same-sex marriage, contending that, because he met all statutory qualifications he was entitled, under the Fourteenth Amendment equal protection clause, to marry a person of the same sex under the same terms as someone seeking an opposite sex union. This claim takes on special significance, the Minnesota high court conceded, because Loving v. Virginia, the 1967 case that invalidates anti-miscegenation legislation, relies on equal protection analysis and contains no reference to marriage as an opposite-sex institution. But because Loving focuses only on race as an impermissible category for

7

Baker v. Nelson, 191 N.W. 2d 185, 186–7 (MN 1971), construing Minn. Stat. 517.08. Id. 187, citing Skinner v. Oklahoma, 316 U.S. 535 (1942) and Griswold v. Connecticut, 381 U.S. 479 (1965).

8


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regulating marriage, the Minnesota court stated, the Supreme Court’s decision in that case had no pertinence to same-sex marriage. “Abstract symmetry,” the Minnesota high court remarked, is not sufficient to establish a valid equal protection claim.9 Even if one were to contend that Baker’s constitutional claims did not rely on an appeal to an “abstract symmetry” version of equal protection, one would have to concede that Baker was capitalizing on a textual possibility with no clear precedent in case law. Perhaps something like this characterization of Baker’s position occurred to the justices of the United States Supreme Court, for when Baker sought a writ of certiorari, the justices unanimously upheld the Minnesota high court’s judgment in a summary ruling that stated Baker had failed to “raise a substantial federal question.”10 Summary judgment rulings are binding on lower courts. Baker’s effort to secure a ruling by the Supreme Court thus established a precedent against gay marriage—not a fully reasoned one but a precedent nonetheless.11 On what basis—other than blind faith—could Baker have believed, then, that “the outcome was never in doubt”? The answer to this can’t be found in specific conclusions reached in the 1960s cases just mentioned. If, however, we consider the notion of emergent doctrine that’s essential to developmental constitutionalism, we can see how Griswold and Loving prepared the way for Baker’s position. Moreover, if we consider the consciousness of change that arose in the wake of 1960s decisions that enlarged on rights of intimate association, we can see how awareness of a tradition of innovation—a tradition that doesn’t require amendment of the text but that instead relies on its supplementation in light of a trajectory of national development—could have altered understandings

9

Id. 187, citing Loving v. Virginia, 388 U.S. 1 (1967). Baker v. Nelson, 409 U.S. 810 (1972), overruled in Obergefell v. Hodges, 135 S.Ct. 2584 (2015). 11 The Supreme Court states that lower courts are bound by its summary decisions “until such time as the Court informs them that they are not” (Hicks v. Miranda, 422 U.S. 332, 345 (1975)). The Sixth Circuit opinion that was appealed in Obergefell cited this passage as one of the factors that required affirmance of state prohibitions of same-sex marriage. See DeBoer v. Snyder (CA 6, Nov. 6, 2014). 10


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of constitutional law by the time Baker applied for a license. “A first-year law student” (Baker’s touchstone for certainty, it will be recalled) might not have been able to identify the dynamics of doctrinal change underway. But Baker insisted only that the “conclusion was intuitively obvious” by the early 1970s—and this stands as a reasonable point for thinking about a modern approach to constitutional law, one that focuses on emergent possibilities compatible with the text’s commitment to individual freedom when these are supported by alterations in national practice. This chapter considers cases that have capitalized on the tradition of innovation in contemporary constitutional law. Lawrence v. Texas,12 the 2003 case that grants constitutional protection to consensual sodomy, is the leading decision within this tradition. Not only does Lawrence supplement the text’s enumeration of rights, Justice Kennedy’s opinion for the Lawrence Court does so openly—and so dispenses with the retrojectionist rhetoric favored by earlier justices when they argued for privacy rights. The chapter begins with Lawrence, then, since Kennedy’s opinion points to the possibility of judicial candor in reappraising the past. Put differently, the opening section notes how the extended Madisonian framework can be harnessed to justify enlargements on the text’s enumeration of individual rights. The chapter’s later sections examine more problematic exercises in reappraisal of the constitutional past—Roe v. Wade,13 the 1973 case that announces an abortion right and Obergefell v. Hodges,14 the 2015 case that announces a right to same-sex marriage. These decisions are problematic, I argue, not because they reappraise the past (this of course is a permissible feature of developmental constitutionalism) but because the reappraisal undertaken in each is not supported by a trajectory of national change. Roe is particularly troubling on this score given the fact that only four states had adopted abortion statutes prior to the Court’s ruling. Obergefell poses fewer difficulties, if only because a majority of states (though not a substantial supermajority) had come to permit same-sex marriage. But given the

12

539 U.S. 558 (2003). 410 U.S. 113 (1973). 14 135 S.Ct. 2584 (2015). 13


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questionable Madisonian credentials for each, Roe and Obergefell are open, as Lawrence was not, to the charge of judicial legislation, thus making it essential to consider the possibility of a non-Madisonian justification for each. The final sections of the chapter offer qualified defenses of the Roe and Obergefell conclusions. Although neither can be defended on the substantive due process grounds available for Lawrence, I suggest, a more modest equal protection rationale is possible for Roe on the one hand and Obergefell on the other. For different reasons, I suggest, equality principles allow for a cautious extension of rights with respect to abortion and samesex marriage—and thus for further enlargement of the scope of personal choice.

A Tradition of Innovation: The Extended Madisonian Framework and the Court’s Decision in Lawrence “[W]e are generally men of untaught feelings,” Edmund Burke writes in his Reflections on the Revolution in France. [I]nstead of casting away our old prejudices, we cherish them to a very considerable degree, and to take more shame to ourselves, we cherish them because they are prejudices, and the longer they have lasted, and the more they have prevailed, the more we cherish them. We are afraid to put men to live and trade each on his own private stock of reason; because we suspect that this stock in man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations and ages. Many of our men of speculation, instead of exploding general prejudices, employ their sagacity to discover the latent wisdom which prevails in them.15

“Untaught feelings” collide with “the private stock of reason” in this passage. On Burke’s reckoning, these are the stark binaries of social Edmund Burke, “Reflections on the Revolution in France,” in 2 The Works of Edmund Burke 359 (1892).

15


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thought. A middle ground can be imagined, however, one in which public, not private, reason is employed to reappraise long-standing prejudices. In taking the middle ground, one can readily agree with Burke that it’s risky to rely on one’s own calculations—private reason, to use Burke’s term—to reassess tradition. Private reason often succumbs to fanciful speculation—and so can lead people to miscalculate the risks that arise in breaking with the past. But public reason is less defective on this score, in part because it can draw on multi-person dialogue (and so can assess the soundness of a possible initiative through adversarial deliberation about the value of breaking with the past), in part because it can draw on cumulative experience (and so can avoid mere guesswork in determining the likelihood of success when embarking on change). Needless to say, even the experience on which public reason draws to reassess inherited prejudices offers a less than foolproof guide to the future. Nonetheless, it stands as a prudential barrier against ill-considered initiatives—and so honors one of Burke’s chief concerns while still allowing for reappraisal of the past. The extended Madisonian framework offers a way to deploy public reason for purposes of reconsidering constitutional norms. In particular, it provides courts with guidance when they engage in developmental supplementation of the text’s enumeration of rights. We considered the framework’s operation earlier when examining the Court’s conclusion in Bolling v. Sharpe that there is an unmentioned equal protection right individuals may assert against the federal government.16 Here, we consider the framework’s application to consensual sodomy. At the time of the founding, there was an “untaught feeling” of revulsion concerning same-sex relations. All thirteen of the original states criminalized sodomy,17 whether this term is used broadly to any “unnatural” relationships or more narrowly to same-sex relations.18 If substantive due

16

For discussion of the Bolling exercise in developmental supplementation, see supra Chapter 3, notes 2–6 and accompanying text. 17 For a review of the original states’ legislation, see Bowers v. Hardwick, 478 U.S. 186, 192 n. 5 (1986). 18 For discussion of the different uses of the term sodomy, see Lawrence, 539 U.S. at 568–70.


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process (i.e. supplementation of enumerated rights) is limited to those practices that were legally protected at the time of the founding, there can be no constitutional protection for consensual sodomy. The Court took just this position in Bowers v. Hardwick, decided in 1986. At issue in Bowers was a criminal prosecution of two adult males for having consensual sex in a home occupied by one of them. In rejecting a claim concerning a constitutional right to engage in this, the Court stated that substantive due process rights may supplement the text only if they are either “deeply rooted in this Nation’s history and tradition” or “‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if [they] were sacrificed.’”19 It’s arguable that these criteria are incompatible. That is, some of the nation’s traditions, it might be contended, denied people liberty and justice. The Bowers majority, however, didn’t discern any tension between the two criteria. Indeed, it seems to have believed that liberty and justice converge with long-standing tradition as far as gay sex is concerned. Washington v. Glucksberg, the 1997 assisted-suicide case, accorded greater weight to tradition for purposes of determining the scope of substantive due process. Glucksberg was mentioned in Chapter 9 while considering the possibility of a right to a physician’s aid in committing suicide. It matters here for a quite different reason—for the framework endorsed in the Court’s opinion for assessing substantive due process claims. The Glucksberg opinion cites each of the criteria just mentioned, but it states that “[o]ur nation’s history, legal traditions, and practices . . . provide the crucial ‘guide posts for responsible decisionmaking’ that direct our exposition of the Due Process Clause”20—so Glucksberg seems to tip the balance in favor of tradition (even if this is determined to be in tension of with liberty and justice). In particular, Glucksberg quite clearly rejects reliance on recent trends. “[T]he development of

19 Bowers, 478 U.S. at 191, citing Palko v. Connecticut, 302 U.S. 319, 325 (1937) and Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (Opinion of Powell, J.). 20 Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (citing the cases mentioned in note 19 supra).


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this Court’s substantive-due-process jurisprudence,” Glucksberg states, “has been a process whereby the outlines of the ‘liberty’ protected by the Fourteenth Amendment—never fully clarified, to be sure, and perhaps not capable of being fully clarified—have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition.”21 In overruling Bowers, Lawrence breaks with Glucksberg, then. But it does so by pointing to a half-century of trends that demonstrated gay sex’s compatibility with a stable social order. That is, Lawrence relies on modern (though gradual) alterations in values to repudiate something whose constitutional standing was taken for granted throughout most of the nation’s history. The trend toward decriminalization began in the mid-twentieth century. When the Court decided Bowers, 24 states and the District of Columbia still criminalized same-sex relations. It was only in the decade and a half after Bowers that a decisive supermajority was reached (the tally was 37-13 by 2003, when Lawrence was decided).22 In relying on the extended Madisonian framework, one would thus say that Bowers properly declined to find a substantive due process right to engage in consensual sodomy and that Lawrence properly reached the opposite conclusion. Developmental constitutionalism offers a way to account for an interpretive reversal of this kind. The possibility of a right to engage in consensual sodomy existed all along, but the legitimacy of such a right could be established only by showing that the arc of national change had come to support it. Justice Kennedy’s opinion for the Lawrence Court doesn’t rely on the terminology just employed. It does, however, emphasize (as earlier privacy rights decisions do not) the general trajectory of evaluative change that’s essential to the conclusion that there is now a right to engaged in consensual sodomy. “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities,” the Kennedy opinion states,

21 22

Glucksberg, 521 U.S. at 722. These tallies are included in Justice Kennedy’s Lawrence opinion. See 539 U.S. at 572–3.


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they might have been more specific. They did not presume to have this insight. They knew that times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.23

Even this comment relies too heavily on the founding, for it implies (misleadingly) that the ratifiers authorized later generations to engage in interpretive supplementation to extend the range of constitutionally protected individual freedom. But although Kennedy goes too far here, his comments are otherwise sound, for they avoid the disingenuous appeal to an already-existing right that mars Brandeis’s and Douglas’s arguments for constitutional privacy protection. Instead, Kennedy relies on conclusions reached by “later generations that laws once thought necessary and proper in fact serve only to oppress.” That recognition is informed, in other words, by public reason—by prudent assessment of the course of national change. Put differently, Kennedy’s citation to a trend-line of state laws underscores the fact that he is not appealing to an abstract libertarian principle that’s derived from what Burke called private reason. Rather, Kennedy’s argument justifies innovation not only with the text’s commitment to personal freedom but with the maintenance of social order. Only a process of evolutionary change evidenced by alterations agreed to by democratically accountable bodies could establish this latter point. The Lawrence conclusion, in other words, doesn’t depend on notional textual possibilities, for while a right to engage in consensual sodomy might have been identified as a constitutional possibility a century earlier, its claim to legitimacy hinges not simply on the general principle that the text is open to supplementation of its enumerated rights but also on a survey of the course of national experience. It’s in this respect that Lawrence can be defended on grounds that can’t be used to justify Lochner. Both cases rely on substantive due process supplementation of

23

Id. 578–9.


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the text. Furthermore, both plausibly extend the text’s enumerated rights. But Lochner had no support in the arc of national experience. It may have relied on a plausible extension of the text given the free labor ideology of the Civil War, but by the early twentieth century, Lochner was a brake against the trade unionization laws adopted by numerous states and the federal government.24 In contrast, Lawrence was the culmination of a trend that had been underway for half a century. It’s reasonable to say that a Bowers ruling in favor of constitutional protection for consensual sodomy would have resolved this issue prematurely. Lawrence’s interpretive reversal of Bowers, on the other hand, was sound for the early twenty-first century, for while the text hadn’t been modified the character of the country had changed so substantially as to warrant the Court’s exercise in interpretive supplementation. If we step back, we can see that Lawrence serves as a model for all five features of the extended Madisonian framework of developmental supplementation. First, it draws on post- founding experience to give meaning to the text’s abstract provisions. Second, it’s consistent with a supermajority consensus discernible in legislation adopted following the text’s ratification. Third, it breaks with the past in relying on the new consensus. Fourth, it extends the period of “liquidating” the text’s meaning into an indefinite postfounding future. And fifth, it can be defended, as against a countermajoritarian challenge, on the ground that a Court majority was not imposing its policy preference on the country but instead was ratifying a course of national change consistent with the principles contained in the text.

Innovation in the Absence of a Supermajority Consensus: The Abortion Cases Unfortunately, the same framework cannot be used to justify Roe v. Wade or Obergefell v. Hodges, for the countermajoritarian difficulty looms large as far as each case is concerned. This is because Roe and Obergefell reappraised the past in the absence of a supermajority consensus in favor of the conclusions 24

For extended discussion of this point, see supra Chapter 8, notes 29–30 and accompanying text.


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they reached. Each case establishes a new right. But each does so without the support of an emergent tradition that had taken root in national life. To note this is not to suggest that either case should be overruled. Rather, it’s to emphasize the problematic status of each within the genealogy of constitutional protection of personal life while conceding that the two cases are unmistakably part of that tradition. To put the point differently, Roe is unimaginable without Griswold and Obergefell unimaginable without Lawrence. Thus a justification for each must depend in part on conclusions reached at an earlier time, but because Roe and Obergefell announce rights that go well beyond the original cases and lack the credentials supplied by the extended Madisonian framework a different approach is needed to establish their soundness. That approach should be grounded in equal protection analysis—in the claim that women are denied their position as equal participants in social life if compelled to carry fetuses to term and in the claim that gays are demeaned if denied the opportunity to marry on the same terms as straights when gay marriage poses no threat to social stability. Because these appeals to equality are different in character, each should be considered on its own. The Eisenstadt Bridge It’s It’s essential to note initially the unconvincing argument on which the Court relied in moving from Griswold to Roe. That argument depends on Griswold’s dual character—on its status as a sexual rights case and as a reproductive freedom case. There was no point in emphasizing the former category when discussing Lawrence, for while Lawrence is of course one of many decisions that can be traced to Griswold the justification for its conclusion depends on the course of national change, not on its affinity with an earlier decision. But Roe came without similar state-legislative credentials, so the common law method of reasoning by analogy (X has something in common with Y, though it’s also distinguishable from Y; and Y has something in common with, though it too is distinguishable from, Z) was pressed into service in decisions rendered in the early 1970s. As applied to abortion rights, this analogy-reliance strategy can be called “the Eisenstadt bridge,” for the 1972 case of Eisenstadt v. Baird 25 served as the Court’s bridge from Griswold to Roe.

25

405 U.S. 438 (1972).


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At stake in Eisenstadt was a criminal statute that prohibited distribution of “any drug, medicine, instrument or article for the prevention of contraception” except when authorized by a doctor. Bill Baird was convicted of violating the statute for distributing vaginal foam to college students following a lecture on birth control. Because Griswold was concerned with a married couple’s right to use contraception, it wasn’t directly on point (since many of the college students were unmarried), but Justice Brennan’s Eisenstadt opinion argues that the Griswold right can’t properly be denied single people as well. Because Massachusetts interpreted the statute to permit married couples to have access to contraception, the state cannot be said to have viewed pregnancy as punishment for failure to use contraception, Brennan’s opinion points out. Nor can Massachusetts be said to have adopted the statute as a health measure, for not all contraceptive devices are inherently dangerous. The only interest the state may have had in adopting the statute, Brennan’s opinion thus contends, was to prevent unmarried people from gaining access to contraception—and this, the opinion states, is unacceptable under the equal protection clause given Griswold’s holding about married couples. “If the right of privacy means anything,” Brennan’s opinion concludes, “it is the right of the individual, married or single, to be free from unwanted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”26 The unmistakable function of this sentence is to bridge the gap between the marital right to contraception and the right of anyone, married or single, to an abortion. Justice Blackmun’s Roe opinion relies on this bridge. “The right of privacy,” it states, whether it be found in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, or . . . in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision to terminate a pregnancy.27

26 27

Id. 453. 410 U.S. 113, 153 (1973).


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A married couple’s right to use contraception thus set the stage for a decision about the right of any person to use contraception, which in turn set the stage for the decision of a woman, married or single, to terminate a pregnancy. Roe thus innovates on a doctrinal innovation. It supplements a decision (Griswold) that supplements the text by moving from a subject about which there was a strong consensus (a right to engage in contraceptive-based sex) to one about which there was none (a right to terminate a pregnancy in the event that contraception fails or simply isn’t used). One can readily agree that there is an affinity between Griswold and Eisenstadt and Roe, but it’s clear that the bridge from the first to the third involves a momentous issue which is manifestly distinct—a woman’s right to end the life of the fetus she is carrying. At the time Roe was decided, only four states (Alaska, Hawaii, New York, and Washington) permitted elective abortions in the first trimester of pregnancy,28 so given the absence of a national consensus concerning the conclusion it reached, Roe can readily be classified an exercise in judicial legislation. A Reappraisal of Roe’s Reappraisal of the Past TheThe term judicial legislation is the constitutional law equivalent of fighting words. In considering whether it’s justified, we should turn to Ruth Ginsburg’s assessment of Roe. Ginsburg’s analysis of Roe merits attention because her own position as an advocate of abortion rights is beyond question. That Ginsburg has nonetheless questioned the autonomy move from Griswold and Eisenstadt to Roe is an indication of the latter’s problematic status in constitutional law even among those who endorse abortion as a policy option. “Roe ventured too far in the change it ordered,” Ginsburg maintains. “The sweep and detail of the opinion stimulated the mobilization of the right-to-life movement and an attendant reaction in Congress and state legislatures.”29

28 For an inventory of state legislation at the time Roe was decided and a comment on trends, see Ruth Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” 63 North Carolina Law Review 375, 380 (1985). 29 Id. 381.


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Although this comment has a bearing on the issue of judicial legitimacy, its primary concern lies elsewhere—i.e., in the strategic question (which is inescapable for a developmentalist) of how to achieve constitutional standing for a right not widely accepted at the time the Court is asked to pass on it. Ginsburg addresses this question by arguing that the Roe Court should not have announced a comprehensive, trimester-based abortion right. “Roe, I believe, would have been more acceptable as a judicial decision,” Ginsburg remarks, if it had not gone beyond a rule on the extreme [Texas] statute before the Court. The political process was moving swiftly in the early 1970s, not swiftly enough for the advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.30

This is an argument against premature judicial intervention. It accepts the possibility of innovation on long-standing tradition. But it does so by calling on the judiciary to adhere to what I have called the extended Madisonian framework—to attend to decisions made by “majoritarian institutions” (Ginsburg’s term) by waiting for the formation of a supermajority consensus in favor of a right with limited credentials from the past. But what if no such consensus were to emerge? What if some states innovate on tradition but no supermajority emerges? Ginsburg’s comments don’t consider this possibility directly. They do, however, sketch out an alternative, more modest rationale for abortion that’s grounded in an equal protection, not a substantive due process, rationale. Because abortion is concerned with child-bearing, a role women alone can perform, any state-imposed rules, whether announced by a legislature or a court, must be formulated by considering the burden they place solely on women, Ginsburg points out. Only by thinking about the way in which government restrictions disadvantage women by comparison with men can one come to terms with its constitutional dimensions. “Overall,”

30

Id. 385–6.


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Ginsburg argues, “the Court’s Roe position is weakened, I believe, by the opinion’s concentration on a medically approved autonomy idea to the exclusion of a constitutionally based sex-equality issue.”31 Needless to say, this argument rests on an anachronism, for the Court’s leading equal-protection decision concerning women, Frontiero v. Richardson,32 was handed down a month after Roe—and Frontiero’s effect wasn’t felt until other sex-equality decisions were announced later. One shouldn’t criticize Roe, then, for having failed to anticipate a (further) component of developmental constitutionalism, a component that depends critically on Bolling’s supplementation of the text, for Frontiero is concerned with federal, not state, equal protection obligations. One can, however, reasonably look back at Roe and note that abortion rights might now be justified on equal protection grounds. Abortion regulations that unreasonably disadvantage women vis a vis men are constitutionally unacceptable given women’s right to operate on fair terms by comparison with men. Sound as this point is, a qualification is in order if a sex-equality principle is to be integrated into a developmental framework concerned with privacy rights. To talk only about equality in this context, after all, is to disregard not only the intensely personal dimension of a decision to abort a fetus but to ignore as well the forbearance claim essential to deliberate termination of a pregnancy. The Court’s opinion in Planned Parenthood v. Casey, the 1992 case that revises Roe’s rules while affirming the constitutionality of abortion, offers a way to consider both points. Because we have already considered Casey’s comment on the Constitution’s respect for the exercise of personal autonomy, we need only note that the Court went out of its way to emphasize the importance of outsider forbearance in the face of personal decisions about the conduct of life. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” Casey remarks. “Beliefs about these matters could not define the attributes of personhood were they formed under compulsion.”33

31

Id. 386. 411 U.S. 677 (1973). 33 Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992). 32


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In reconciling this remark with the sex-equality argument for abortion outlined earlier, one might say that there are two issues of government compulsion at stake here, each of which calls for forbearance by outsiders. One has to do with the impermissibility of state imposition of a burden on women that men don’t have to, and can’t, bear. The other has to do with the impermissibility of government interference with a matter as contestable as the moral standing of a fetus. This issue, Casey properly implies, isn’t properly resolved through the exercise of government power. Rather, the sound position to take is that an argument in favor of fetal inviolability isn’t so clearly valid as to justify interference with a woman’s autonomous decision about whether to bear a child. The proper approach here is to insist on forbearance: to show respect for abortion opponents but to recognize as well the limits of permissible state coercion. In other sections of Casey, the Court appropriately backtracks on some features of Roe’s rules. It allows states to impose a 24-hour waiting period for elective abortions, for instance, and permits them to insist on informed consent to an abortion. On the other hand, Casey rejects a spousalnotification requirement, properly emphasizing the dangers this could pose for a woman with a violent husband. On a more general note, Casey relaxes the standard for judicial evaluation of abortion regulations, abandoning Roe’s strict scrutiny framework in favor of one that asks whether a statute imposes an undue burden on women seeking an abortion.34 In taking these steps, Casey turned away from Roe’s “heavy-handed” regime (Ginsburg’s term). Casey’s effect has been to reduce somewhat the degree of rancor abortion provokes in national life.35 Privacy rights, understood to refer not merely to seclusion and informational control but also to autonomous choice pertaining to the conduct of personal life, have become entrenched in constitutional law in a way that Lochner-type supplementation of the text never did. It’s by no means surprising that

34

Id. 881–7 and 890–1. A Gallup survey conducted in the wake of the Casey found supermajority support for the restrictions placed on abortion rights (informed consent and a 24-hour waiting period), but no change one way or another on the fundamental question about abortion rights. See Samantha Luks and Michael Salamone, “Abortion,” in Nathaniel Persilly et al., eds., Public Opinion and Constitutional Controversy 94–5 (2008). 35


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abortion, the most complex issue in intimate life, is a subject of ongoing disagreement. The abortion debates that continue to this day should not, however, distract us from the extraordinary change that has occurred in the last half-century, for once seclusion and informational control are classified as facilitators of the exercise of personal autonomy it becomes clear that an enduring framework of new rights has emerged through a process of constitutional development that has bypassed Article V.

Innovation in the Absence of a Supermajority Consensus: Same-Sex Marriage It might be argued that same-sex marriage, the next issue to be considered, has nothing whatsoever to do with privacy, for the constitutional question at stake has to do with a public, not a private, act—with the opportunity of a gay couple to secure state support for their union. Same-sex marriage, it could be said, is concerned with an exit from the closet, not with behavior that occurs within the closet.36 On this reckoning, Lawrence was indeed a privacy rights case: it was concerned with “the most private conduct, sexual conduct, and in the most private of places, the home” (to quote Justice Kennedy’s opinion for the Court).37 In contrast, it could be argued that someone makes a category mistake by classifying Obergefell v. Hodges as a privacy rights case given the Court’s holding that states must grant public legal recognition to a statement of emotional commitment. There is a good deal to be said for this argument.38 To ignore the connection to privacy rights, however, is to overlook two key points— first, that marriage is a paradigmatic case of intimate association and 36

My terminology here draws on Michael Klarman’s. See his From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (2014). 37 Lawrence, 539 U.S. at 573. These numerous references to private life notwithstanding, Justice Kennedy’s Lawrence opinion speaks of a liberty, not a privacy, interest that’s protected by the Constitution. 38 Justice Thomas advances an argument along these lines in his Obergefell dissent. See 135 S.Ct. 2632–37 (2015) (Thomas, J., dissenting).


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second, that Obergefell’s recognition of a right of same-sex marriage marks the culmination of a half-century of constitutional decisions that have offered special protection for autonomous conduct in private life. Baker may have overstated matters when he spoke of the inevitability of a right of same-sex marriage.39 But if we set his hyperbole to one side, we can still say that with cases such as Griswold and Loving having enlarged the range of rights protective of intimate association, the possibility of a constitutional decision in favor of gay marriage had increased dramatically by the time Baker applied for a marriage license, for it’s clear that Obergefell, while concerned with a state obligation to provide a service rather than an obligation to refrain from an intrusion, was of a piece with the decisions on which Baker relied. But while Obergefell merits consideration within the tradition of innovation just sketched out, it also merits criticism for much the same reason as Roe—not as much criticism, it must be emphasized, for the movement toward same-sex marriage at the time the Court decided the case was more extensive than the movement toward abortion at the time Roe was decided, but substantial criticism nonetheless, in part because only 11 states (Delaware, Hawaii, Illinois, Maine, Maryland, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington) had adopted legislation in favor of same-sex marriage as of 2015,40 in part because judges, not legislatures, had served as an even more important catalyst for change than legislatures.41 This latter factor underscores the distinctive feature of same-sex marriage in the tradition of constitutional innovation on behalf of privacy rights. At the time Griswold was decided 48 states permitted married couples to us contraception.42 At the time Lawrence was decided, 27 states had decriminalized same-sex relations through legislation while 10 had 39 The inevitability theme was sounded at a much later date in Laurence Tribe and Joshua Matz, “The Constitutional Inevitability of Same-Sex Marriage,” 71 Maryland Law Review 471 (2012). 40 See Appendix B of Justice Kennedy’s Obergefell opinion, 135 S.Ct. at 2611 (2015). 41 See id. 42 The Connecticut Supreme Court rejected a Planned Parenthood challenge in State v. Nelson, 126 Conn. 412 (1940). In Tileston v. Ullman, 318 U.S. 44 (1943), the United States Supreme Court rejected a challenge on the ground that the appellants lacked standing in a subsequent


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done so through judicial interpretation of their state constitutional provisions.43 The Obergefell lineup, in contrast, was the 11 states that, as noted, had legislated in favor of same-sex marriage plus another 15 whose legislation had been invalidated through judicial interpretation of either the relevant state consitution or the federal constitution.44 The division of labor essential to the extended Madisonian framework had been undermined, then. Courts weren’t looking to the pattern of legislation to identify a trend-line of national change. Rather, courts themselves were establishing a trend-line—and state legislatures were doing less and less work in establishing new rights. Reappraisal of the constitutional past continued to be a key feature of American life, but as of the early twenty-first century the judiciary was initiating reappraisal on its own authority. If we reformulate the extended Madisonian framework by saying that majoritarian institutions enhance substantially the legitimacy of new rights, we can say that this is a troubling trend—and we can thus add that there was a strong reason for the Obergefell Court to exercise caution on being confronted with an asserted constitutional right to enter into same-sex marriage. Lawrence provides an example of a final shove by the OCourt once a majority of state legislatures had already moved in a given direction (as supplemented by decisions by state courts). But with only 11 state legislatures having adopted provisions permitting same-sex challenge to the statute brought in a case of the same name, 129 Conn. 84 (1943). In Poe v. Ullman, 367 U.S. 497 (1961), the Court also relied on standing to reject a further challenge to a similar Connecticut Supreme Court conclusion as to the statute’s conclusion in a case denominated Buxton v. Ullman, 147 Conn. 48 (1959). 43 The overall state lineup is reported in Lawrence, 539 U.S. at 570–71 (2003). The 10 states whose criminal prohibitions on same-sex sodomy were invalidated through decisions by the states’ high courts are: Arkansas (Jegley v. Picado, 80 S.W. 3d 332 (Ark. 2001)), Georgia (Powell v. Georgia, 510 S.E. 2d 18 (Ga. 1998)), Kentucky (Commonwealth v. Wasson, 842 S.W. 2d 487 (Ky. 1992)), Maryland (Williams v. Glendening, decision of Maryland Court of Appeals, reported in Opinions, Advice, and Legislative Quarterly News, 1999)), Massachusetts (Commonwealth v. Balthazar, 366 Mass. 298 (1974)), Minnesota (Doe v. Ventura, cited supra note 2)), Montana (Grcyzan v. St,ate, 942 P. 2d 112 (1997)), New York (People v. Onofre, 51 N.Y. 2d 476 (1980)), Pennsylvania (Commonwealth v. Bonadio, 490 Pa. 91 (1980)), Tennessee (Campbell v. Sundquist, 926 S.W.2d 955 (Tn. Ct. of App. 1996)). 44 See supra notes 40–1 and accompanying text.


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marriage, the Obergefell Court should have temporized. It might, for instance, have issued a modest ruling concerning the comity obligations of non-marriage equality states or it might have ruled that non-recognizing states are obligated to honor child-custody decrees issued by courts located in states where same-sex marriage is legal. Steps such as these are undramatic. Had the Court taken them, it would have kept same-sex marriage on the democratic agenda (while also nudging matters toward a resolution in its favor). On this reckoning, courts can, and should, recognize an unenumerated constitutional right (as Lawrence did) once supermajority support for this exists, but they should not interfere in a matter that is best left to majoritarian institutions while national debate is underway. Unfortunately, the Obergefell Court opted for an exercise of maximum judicial authority. Justice Kennedy’s opinion for the Court announced a substantive due process right of same-sex marriage and so supplemented the text in a way that’s not readily distinguishable from the exercise in supplementation followed in Lochner (a point Chief Justice Roberts noted while dissenting in the case45). Obergefell, in other words, falls short in the same way that Lochner and Roe fall short. It is marginally superior to Roe since 11 state legislatures had moved in the same direction (as opposed to Roe’s four), but it’s also more disturbing because it exemplifies to a degree not found in any earlier case the tendency of contemporary judges to declare novel rights without reliance on majoritarian institutions. Clearly, Obergefell cannot be supported by the extended Madisonian framework. Can it be justified on some other ground? The answer is that it can (though it’s essential to reiterate that a judicial avoidance strategy is best in cases when a trend that dismantles vestiges of the past has yet to secure supermajority status). The key to this equivocal justification for Obergefell is to be found in equal protection analysis—in particular, in a denigration rationale that holds any state classification to be illegitimate

“Ultimately, one precedent offers any support for the majority’s methodology: Lochner v. New York,” Roberts remarks. Obergefell, 135 S.Ct. at 2621 (2015) (Roberts, C.J., dissenting)

45


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if the sole justification for it is that it rests on long-standing tradition. Not only is the denigration rationale sufficient to account for the soundness of Obergefell’s conclusion, it’s sufficient as well to explain why it would not be appropriate to overturn other classifications that have an affinity to a state ban on same-sex marriage, in particular the classification that criminalizes polygamy. To understand the denigration rationale, we should turn to a comment embedded in Kennedy’s Obergefell opinion. “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious and philosophical premises,” Kennedy writes, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted in law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.46

This comment appears in a passage that seeks to justify recognition of a substantive due process right of same-sex couples to marry. We have already examined the weakness of an argument in favor of supplementation on this score. Only a modest degree of ingenuity is needed, however, to discern the equal protection framework latent in the comment, for Kennedy persuasively notes that, however sincere the traditionalists’ opposition to same-sex marriage may be, the effect of a legislative classification limiting marriage to opposite-sex couples is to denigrate gays. This point isn’t sufficient, of course, to establish the soundness of an equal protection claim on behalf of same-sex marriage. After all, numerous classifications are demeaning but are nonetheless acceptable because they serve a legitimate state interest. Criminal convictions—to cite an obvious example—are “demean[ing]” and “stigmatiz[ing]” (Kennedy’s terms), but they’re nonetheless constitutionally sound

46

Obergefell, 135 S.Ct. 2602 (2015).


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because they further the state’s legitimate interest in punishing wrongdoing. So the proper question to ask isn’t whether a classification that excludes gays from marriage when they would otherwise meet the state’s standards for this is demeaning (for of course the classification denigrates gays) but whether there is some state interest other than the protection of tradition that can justify the exclusionary classification. The answer is that there is no other interest that can be cited to justify the exclusion of gays. The possibility of procreation is clearly inapposite here, for opposite-sex adults are eligible for marriage even when they’re beyond child-rearing age. The possibility of child-rearing is also inapposite given the fact that numerous same-sex couples raise children together. Indeed, child-rearing patterns are positively as well as negatively significant in this context: that is, the fact that many same-sex couples raise children together establishes that the child-raising rationale can’t be limited to opposite-sex couples, and the further fact that same-sex couples have a track record no different from that of their opposite-sex counterparts serves as an experiential guidepost for the equal protection claim that it’s merely denigrating to exclude gays from marriage. In this sense there is of course a developmental component to the equal protection claim at stake here. In taking a developmental approach to the Constitution, one clothes the abstract principle—treat like cases alike—with accumulated patterns of social interaction, thereby establishing that judicial rejection of tradition is best justified in light of the trajectory of social change. On this account, protecting tradition is not a legitimate state interest per se. Tradition may well play an important role in promoting social order (thus the continuing relevance of Burke’s cautionary warning about reliance on abstract reason). But if incremental patterns of change have not undermined social order while traditional prejudices continue to support earlier legislation that furthers those prejudices, it’s appropriate for courts to set the legislation aside even if no supermajority pattern has emerged concerning the issue at stake. This approach, it should be emphasized, is less sound than the substantive due process route to constitutional change. It’s sound enough, however, as long as there is a substantial base of accumulated social experience on which courts can rely.


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A counterexample—the possibility of a constitutional right to enter into plural marriage—will help clarify the mere denigration/equal protection inquiry employed here. “[W]hy would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?” Chief Justice Roberts’s Obergefell dissent asks, thus posing an essential challenge to someone employing the mere denigration criterion.47 If one thinks only about the Court’s many pronouncements on Mormon polygamy, there’s much to be said for Roberts’s skepticism, for its nineteenth century opinions relied on little more than long-standing animus toward plural marriage.48 But on the other hand, if one considers the social function of legally enforced monogamy, one can see that the animus toward polygamy that continues to dominate contemporary life performs a useful function. Actually, it performs three functions, as a team of cultural anthropologists headed by Joseph Henrich has persuasively argued. First, Henrich et al. contend that “by suppressing intrasexual competition and reducing the pool of unmarried men, normative monogamy reduces crime rates, including rape, murder, assault, robbery and fraud, as well as decreasing personal abuses.” Second, “[b]y decreasing the competition for younger brides, normative monogamy decreases the spousal age gap, fertility, and gender inequality.” And third, “[b]y increasing relatedness within households, normative monogamy reduces intra-household conflict, leading to lower rates of child neglect, abuse, accident, and homicide.”49 Roberts’s question is apt, then, for it’s essential once developmental possibilities are entertained to consider the hypothesis that a longstanding tradition (such as legally enforced monogamy) sustains the

47

Obergefell, 135 S.Ct. 2622 (2015) (Roberts, C.J., dissenting). In Reynolds v. United States, for instance, the Court upheld a criminal prohibition on polygamy by remarking that “[p]olygamy has always been odious among the northern and western nations of Europe, and until the establishment of the Mormon Church, was almost exclusively a feature of the life Asiatic and of African people” (98 U.S. 145, 164 (1878)). 49 Joseph Henrich et al., “The Puzzle of Monogamous Marriage,” 367 Philosophical Transactions of the Royal Society B Sect. 3 “Theory and Evidence,” available at http://rstb.royalsocietypublishing. org/content/367/1589/657#sec-12. 48


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social order in valuable ways that haven’t been fully appreciated. But it’s clear that a reasonable answer is possible to such a question, one that affirms the socially supportive function of tradition in some (but not all) instances. If we extend this point, we can say that Obergefell heralds the possibility of ongoing reappraisal of demeaning traditions on equal protection grounds—but we can add that this test is a rigorous one, for the “untaught prejudices” to which Burke refers often turn out, on close inspection, to have beneficial social consequences. Indeed, it’s because this is so that the primary route to supplementation of the text’s enumeration of rights should depend on the extended Madisonian framework, for it’s through reliance on this that the country itself participates in altering the Constitution. The modern system of privacy rights arose primarily through (unacknowledged) reliance on this framework. Further change should occur through open judicial affirmation of its merits.


Afterword

On even the most generous reckoning of its life span, the Lochner era lasted only 40 years—from 1897, when Allgeyer v. Louisiana1 was decided, to 1937, the year of West Coast v. Parrish.2 The era of privacy rights, in contrast, has already lasted half a century3—and there is every reason to suppose it will endure for a long time to come. Privacy rights are entrenched in constitutional thought, in other words, and so too is the practice of interpretive supplementation on which they rely. It’s thus essential to come to terms with the move from the said to the unsaid that undergirds privacy rights—essential to acknowledge that this practice isn’t a deviant one but instead is a legitimate feature of American constitutionalism and so to identify the criteria by which courts may properly supplement the text’s enumeration of rights.

1

165 U.S. 578 (1897). 300 U.S. 379 (1937). 3 On even the most conservative estimate, it can be said to have been launched by Griswold v. Connecticut, 381 U.S. 479 (1965), though the inventory of privacy references contained in Appendix A establishes that the Court began to take privacy seriously as a constitutional value considerably before this. 2

© The Author(s) 2016 W.C. Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_14

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The preceding chapters have offered a way to do so. Their starting point for thinking about interpretive supplementation as a legitimate tool in constitutional reasoning is to be found in the concept of the Constitution as a plan of government (the term James Madison employs in The Federalist when discussing it).4 On the one hand, a plan can be viewed as a blueprint for future action, in which case interpreters must punctiliously adhere to its terms, neither adding to nor subtracting from them. On the other hand, a plan can be viewed not as an architectural draught but instead as a scheme, in which case someone implementing it can elaborate on its terms on encountering settings that couldn’t reasonably have been anticipated at the moment it was drawn up.5 Thomas Jefferson championed the plan-as-blueprint conception of the Constitution. “Our peculiar security lies in a written Constitution,” Jefferson remarked. “Let us not make it a blank paper by construction.”6 In contrast, James Madison, Jefferson’s political ally on numerous issues but not on this one, defended a suppler approach to the text, one that allows for interpretive supplementation in lieu of the Article V amendment process.7 As a matter of constitutional theory, the tension between these two conceptions of the republic’s basic law—plan-as-blueprint vs. plan-as-scheme—has persisted throughout our history. As a practical matter, however, it was settled, and settled decisively, in favor of the latter during the early decades of the republic’s existence. Indeed, Jefferson himself opted for a plan-as-scheme approach within months of making his critical comment about the danger of making the text “a blank paper by construction,” for the catalyst for his comment was the question of whether a constitutional amendment was needed to justify the Louisiana Purchase and while Jefferson initially favored an amendment (to make up

In The Federalist 39, Madison speaks of the Constitution as “the plan of government reported by the Convention” (The Federalist Papers 240 (Clinton Rossiter, ed., 1961)). 5 For analysis of these contrasting conceptions of the concept of a plan, see the discussion of Noah Webster’s definition of the term, see supra Chapter 1, notes 14–5 and accompanying text. 6 Jefferson to Wilson Cary Nicholas, September 7, 1803, in 8 The Works of Thomas Jefferson 247 (Paul Ford, ed., 1894). 7 For discussion of the Madisonian alternative, see supra Chapter 1, note 35 and accompanying text. 4


Afterword

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for the fact that the text says nothing about Congress’s authority to acquire territory) and even drew up an amendment to legitimate the purchase, he ultimately settled for interpretive supplementation, thereby setting a precedent concerning national expansion that has been honored on numerous occasions ever since.8 Even Jefferson, in other words, was willing to elevate an afterthought to the status of a constitutional norm, one that’s compatible with those expressly mentioned in the enumeration but that also goes beyond them. Privacy rights are the most important exercises in rights-supplementation of the modern era. Their existence isn’t a rebuke to the text. Instead, they are best understood as the culmination of a long-standing trend. This of course is only a descriptive point, but it’s complemented by a norm of practice that establishes the legitimacy of privacy rights, for these rights conform to the framework Madison outlined when settling for interpretive supplementation in lieu of amendment of the text. That is, privacy rights are understandable as “a construction put on the Constitution by the nation” itself (to use Madison’s phrase).9 They can’t be derived by a process of deduction from the rights mentioned in amendments one to eight. They do, however, build on those that are mentioned—and so establish a system of rights that complements the ones recognized in the eighteenth and nineteenth centuries. In this respect, privacy rights have modernized constitutional law. Because the framers were committed to a republican plan of government, their nineteenth century successors paid little heed to privacy (while overcoming the legacy of slavery by including an equality right in the text). It’s undeniable, then, that privacy rights go beyond both the original and post-Civil War conceptions of individual liberty. They work a variation on the past while also replicating important features of what was said at the outset. To note this point is not to question the legitimacy of the modern system of privacy rights. Rather, it is to emphasize that while they differ 8

For discussion of Jefferson’s decision to bypass Article V in carrying out the Louisiana Purchase, see supra Chapter 1, notes 8–12 and accompanying text. 9 Madison to the Marquis de Lafayette, November 1826, in 3 Letters and Other Writings of James Madison 542 (1884).


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in content from the rights mentioned in amendments one to eight the method that can be cited to justify them is discernible in the framework Madison employed two centuries ago when deciding to move beyond the text in the absence of Article V authorization. Because privacy rights protect an expressive individualism that has emerged over the last century or so, it’s hardly surprising that they don’t mesh entirely with the republican ideology that informed the founding. They do, however, credibly bridge the gap between past and present, one in which a factor not taken seriously at the outset—an afterthought—has now been integrated into doctrine through supplementation of the text’s enumeration of rights.


Appendix A Privacy in the Supreme Court: A Complete Listing of References to the Term in the First 175 Years of United States Reports

Š The Author(s) 2016 W.C. Heernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2

297


8. Boyd v. U.S., 116 U.S. 616, 630 (1886) 9. The Sraithairly, 124 U.S. 558, 577 (1888) 10. Brennan v. Titusville, 153 U.S. 289, 296 (1894) 11. I.C.C. v. Brimson, 154 U.S. 447, 479 (1894)

5. Goesele v. Bimeler, 55 U.S. (14 How.) 589, 603 (1853) 6. Deery v. Cray, 72 U.S. (5 Wall.) 745, 806–7 (1867) 7. Cannon v. U.S., 116 U.S. 55, 72 (1885)

“Secrecy was practiced,—privacy as to the real offers,—stratagem,— which, as already seen, is in the teeth of a valid public sale.” In commenting on administrators of estates in different states, counsel asserts that “in contemplation of the law there is no privacy between him and the other administrator.” “ . . . the safety of Bimeler depended on his frequent changes of residence, living in the utmost privacy.” “As the object of the statute was not to provide for strict privacy from all persons, but only privacy from the husband. . . . ” “Nor . . . does the statute pry into the initimacies of the marriage relation . . . ”. It operates “without reference to what may occur in the privacy of those relations.” The Fourth and Fifth Amendments protect “the privacies of life. . . . ” “There is quite as much need that a steerage passenger shall have the ‘space’ and privacy. . . . ” Itinerant peddlers and canvassers “assail the privacy of domestic life.” “We said in Boyd v. United States [case #8]—and it cannot be repeated too often—that the principles that embody the essence of constitutional liberty and security forbid all invasions

Justice Woodbury

Justice Harlan

Counsel

Justice Matthews

Justice Bradley

Justice Blatchford

Justice Miller

Justice McLean

Counsel

Counsel

Counsel

1. Childress v. Emory, 21 U.S. (8 Wheat.) 642 650 (1823) 2. Caldwell v. Taggart, 29 U.S. (4 Pet.) 190, 194 (1830) 3. Veazie v. Williams, 49 U.S. (8 How.) 134, 156 (1850) 4. Hill v. Tucker, 54 U.S. (13 How.) 458, 460 (1851)

Commentary “Prisons and inns are quasi-publici juris; the prisoner must be received and their reception is not a matter of privacy. . . . ” “That there was no privacy between the mortgages of the 24th October 1817 and 15th September 1819. . . . ”

Commentator

Case

298 Appendix A


Justice Holmes

Counsel

Justice Day

Counsel

12. Harriman v. I.C.C., 211 U.S. 407, 419–20 (1908)

13. Peck v. Tribune Co., 214 U.S. 185, 187 (1909)

14. Flint v. Stone Tracy, 220 U.S. 107, 174 (1911)

15. Wheeler v. U.S., 226 U.S. 478, 481 (1913) 16. Lewis Publ. Co. v. Morgan, 229 U.S. 288, 292 (1913) 17. Weeks v. U.S., 232 U.S. 383, 389–90 (1914) Justice Day

Counsel

Commentator

Case

(continued )

on the part of the government and its employees of the sanctity of a man’s home, and the privacies of his life.” “ . . . the power to require testimony is limited, as it usually is in English-speaking countries, at least, to cases where the sacrifice of privacy is necessary—those where investigations concern a specific breach of the law.” “The advertisement not being libelous per se, petitioner cannot maintain an action for the publication of her picture [on the ground that] it violates her privacy . . . ” citing Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (1902), an opinion by the New York Court of Appeals that declined to adopt the Brandeis common law right for involuntary publication of someone’s likeness. Citing Boyd (case #8): “This Amendment [the Fourth] was adopted to protect against abuses in judicial procedure under the guise of law, which invade the privacy of persons in their homes, papers, and effects. . . . ” Boyd (case # 8) distinguished: “An order to produce corporate papers does not invade its privacy.” “The compulsory disclosure to the public of the circulation of a newspaper is calculated to impair its influence and violate the privacy of its business.” Citing Boyd (case #8), the opinion accounts for the adoption of the Fourth Amendment by stating that it secured “to the

Commentary

Appendix A

299


21. Chicago, Milwaukee St. Lamar Paul & Pacific RR v. Wisconsin, 238 U.S. 491, 500 (1915) 22. Perlman v. U.S., 247 U.S. 7, 13–4 (1918)

Counsel

18. Henry v Henkel, 235 U.S. 219, 221 (1914) 19. Ellis v. I.C.C., 237 U.S. 434, 440 (1915) 20. Adams Express Co. v. Ky., 237 U.S. 190, 201 (1915).

Justice McKenna

Justice Lamar

Justice Day

Counsel

Commentator

Case

“In all [the incidents cited by appellant] there was force or threats or trespass upon property, some invasion of privacy or governmental extortion.” Citing Boyd (case #8) and other cases.

American people . . . those safeguards which had grown up in England to protect the people from unreasonable searches and seizures, such as were permitted under the general warrants issued under authority of the Government by which there had been invasions of the home and privacy of citizens and the seizure of their private papers in support of charges . . . made against them. . . . ” “The power to invade the right of privacy can be justified only on the ground of necessity. . . . ” “To require the Armour Car Lines [to produce documents] would not necessarily invade the privacy of a corporation. . . . ” “It is not within the competency of government to invade the privacy of a citizen’s life and to regulate his conduct in matters in which he alone is concerned. . . . ” Quoting Commonwealth v Campbell, 133 Kentucky 50 (1909) “ . . . it is common knowledge that to let down the upper birth during the night would necessarily be an intrusion upon the privacy of those occupying the lower births. . . . ”

Commentary

300 Appendix A


Testator alleges that construction of a railroad “caused and would continue to cause injury to the property by noise, smoke, dirt, shutting off air and light, disturbing privacy, and impairing the freedom of ingress and egress. . . . ” “Section 3 [of a Minnesota statute] makes it punishable to teach in any place that a citizen should not aid in carrying on a war no matter what the relation of the parties may be. Thus the statute invades the privacy and freedom of the home.” “Although search warrants have thus been used in many cases ever since the adoption of the Constitution, and although their use has been extended from time to time to meet new cases within the old rules, nevertheless it is clear that, at common law and the result of the Boyd [case #8] and Weeks [case #17] cases, they may not be used as a means of gaining access to a man’s house or office and papers solely for the purpose of making a search to secure evidence to be used against him in a criminal or penal proceeding, but that they may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or that complainant may have in the property to be seized, or in the right to the possession of it, or when a valid exercise of the police power renders possession of the property by the accused unlawful and provides that it may be taken.”

Justice Brandeis, dissenting

Justice Clarke

23. McCoy v. Union Elevated Railroad, 247 U.S. 354, 355 (1918)

24. Gilbert v. Minn., 254 U.S. 325, 335 (1920)

25. Gouled v. U.S., 255 U.S. 298, 309 (1921)

(continued )

Commentary

Commentator Justice McReynolds

Case

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(1) He cites Boyd (case #8) as holding that the Fourth Amendment protects “the privacies of life,” (2) “Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded. . . . ” “In order to illustrate the purpose of the courts to uphold the right of privacy, we quote from some of their decisions.” Citation follows to Boyd (case #8) on “the privacies of life. . . . ” Citation to Boyd on “the privacies of life”

Justice Brandeis, dissenting

Justice Butler

Justice Butler

31. Sinclair v. U.S., 279 U.S. 263, 292–3 (1929)

32. U.S. v. Lefkowitz, 285 U.S. 452, 464 (1932)

Counsel

After citing Boyd (case #8) and Weeks (case #17), the Court remarks: “to the end that government employees without a warrant shall not invade the homes of the people and violate the privacies of life, Congress made it a criminal offense . . . for any officer . . . to search a private dwelling without a warrant. . . . ” There was an “unreasonable invasion of privacy”

Justice Butler

29. FTC v. Claire Furnace, 274 U.S. 160, 162–73 (1927) 30. Olmstead v. U.S., 277 U.S. 438, 473 475 (1928)

“ . . . from which is deduced [from state constitutions] a right of privacy called the ‘liberty of silence’ . . . ”

Justice Pitney

26. Burdeau v. McDowell, 256 U.S. 465, 468 (1921) 27. Prudential Ins. Co. v. Cheek, 259 U.S. 530, 542 (1922) 28. Agnello v. 269 U.S. 20, 32–3 (1925)

Commentary There was “no invasion of the appellee’s right of privacy.”

Commentator Counsel

Case

302 Appendix A


(continued )

In overturning a conviction for public proselytizing, the Court remarks that “the playing of a phonograph on the streets

Justice Murphy

39. Carlson v. California, 310 U.S. 106, 113 (1940) 40. Cantwell v. Connecticut, 310 U.S. 296, 307 (1940) Justice Roberts

Justice Murphy

“ . . . two opposing concerns must be harmonized: on the one hand, the stern enforcement of the criminal law; on the other, protection of that realm of privacy left free by Constitution but capable of infringement either through zeal or design.” “The power and duty of the State to take adequate steps to preserve peace and protect the privacy, the lives, and the property of its residents cannot be doubted.” Same comment as in Thornhill (case #38).

Justice Frankfurter

Justice McReynolds

Counsel

38. Thornhill v. Alabama, 310 U.S. 88, 113 (1940)

35. Scher v. U.S., 305 U.S. 251, 257 (1938) 36. Utah Fuel Co. v. Nat’l Bituminous Coal Comm., 306 U.S. 56, 59 (1939) 37. Nardone v. U.S., 308 U.S. 338, 340 (1939) (Nardone II)

In a case involving labor picketing, the Court remarks that “[t]he state has, of course power to afford protection to interests of personality, such as ‘the right of privacy.’” In adopting Section 605 of the Communications Act of 1934, Congress was concerned about “practices and procedures violative of privacy, embodied in the Fourth and Fifth Amendments of the Constitution.” “The constitutional prohibition against unreasonable searches and seizures is construed liberally to protect privacy.” Appellants speak of “the promise of privacy inferable from” the Commission’s orders.

Justice Brandeis

33. Senn v. Tile Layers Protective Union, 301 U.S. 468, 482 n. 5 (1937) 34. Nardone v. U.S., 302 U.S. 379, 383 (1937) (Nardone I) Justice Roberts

Commentary

Commentator

Case

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303


Justice Frankfurter

42. Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 298 n. 2 (1941) 43. Bridges v. California, 314 U.S. 252, 262 (1941)

44. Hotel & Restaurant Employees Int’l. Alliance v. Wisc. Employment Rel. Bd., 315 U.S. 437, 441 (1942) 45. Bakery & Pastry Drivers & Helpers v. Wohl, 315 U.S. 769, 776 (1942)

Justice Frankfurter, dissenting

41. Sibbach v. Wilson & Co., 312 U.S. 1, 18 (1941)

Justice Jackson

Justice Frankfurter

Justice Black

Commentator

Case

Same citation to Thornhill (case #38) as in case #44

“[V]ery recently we have also suggested that ‘clear and present danger’ is an appropriate guide to determining the constitutionality of restrictions upon expression where the substantive evil sought to be prevented by the restriction is ‘destruction of life or property, or invasion of the right of privacy.’” Picketing case in which the Court cites Thornhill (case #38) on privacy as a pertinent police power consideration.

should in the interest of comfort or privacy be limited or prevented.” “[D]isobedience of an order under [Federal] Rule 35 cannot be visited with punishment, for contempt does not mitigate its intrusion into an historic immunity of the privacy of the person.” Citation to Carlson (case #39) on police power and privacy

Commentary

304 Appendix A


Justice Frankfurter

Justice Reed, dissenting

50. Switchman’s Union of N.A. v. National Mediation Bd., 320 U.S. 297, 315 (1943) 51. Ashcraft et al. v. Tennessee, 322 U.S. 143, 151 n. 5 (1944) 52. Feldman v. U.S., 322 U.S. 487, 489–90 (1944)

(continued )

Citing the Wickersham Commission Report (1931), the Court notes that “upstairs rooms or back rooms [of police station houses are] sometimes picked out for their greater privacy.” “We are immediately concerned with the Fourth and Fifth Amendments, intertwined as they are, and expressing as they

Justice Murphy, concurring

49. West Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 646 (1943)

Justice Black

47. Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 513 (1942) 48. Martin v. Struthers, 319 U.S. 141, 151 (1943)

Commentary “On the value of the right to privacy, as dear as any to free men, little need be added to what was said in Entick, Boyd [case #8], and Justice Brandeis’s memorable dissent in Olmstead [case #30].” “ . . . petitioner is entitled to a judicial determination of this issue before its privacy is invaded.” “Concededly, the Due Process Clause of the Fourteenth Amendment did not abrogate the power of the States to recognize that homes are sanctuaries from intrusions upon privacy. . . . ” “I am unable to agree that the benefits that may accrue to society from the compulsory flag salute are sufficiently definite and tangible to justify the invasion of freedom and privacy that is entailed. . . . ” Concerning “an interest recognized by law in the selection of representatives,” Reed asserts that “[t]his right adheres to his condition as an employee as a right of privacy does.”

Justice Murphy, dissenting

46. Goldman v. U.S., 316 U.S. 129, 137 (1942)

Justice Frankfurter, dissenting

Commentator Justice Murphy, dissenting

Case

Appendix A

305


Commentator

Justice Murphy

Justice Murphy, concurring Justice Rutledge

Justice Douglas

Justice Douglas

Case

53. U.S. v. White, 322 U.S. 694, 699–700 (1944)

54. Bridges v. Wixon, 326 U.S. 135, 157 (1945)

55. Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 202 (1946)

56. Zap v. U.S., 328 U.S. 624, 628 (1946)

57. Davis v. U.S., 328 U.S. 582, 593 (1946)

do, supplementing phases of the same constitutional purpose— to maintain inviolate large areas of personal privacy.” (citing Boyd, case #8) Documents maintained by an organization “are not the private records of the individual members or officers of the organization. . . . They therefore embody no element of personal privacy and carry with them no claim of personal privilege” under the Fifth Amendment. “Wire-tapping, searches and seizures without warrants and other forms of the invasion of the right of privacy have been widely employed in this deportation drive.” In his opinion for the Court concerning enforcement of a subpoena duces tecum, Rutledge speaks of “different areas of privacy. . . . ” Continuing, he remarks that “the history of such intrusions has brought forth some of the stoutest and most effective instances of resistance to excess of governmental authority.” “[W]hen petitioner, in order to obtain Government’s business, specifically agreed to permit inspection of his accounts and records, he voluntarily waived such claim to privacy.” “The right of privacy, of course, remains. But, as we have said, the filling station was a place of business, not a private residence.”

Commentary

306 Appendix A


Justice Murphy

Justice Jackson, dissenting Chief Justice Vinson Justice Frankfurter, dissenting Justice Jackson

Justice Frankfurter,

Chief Justice Vinson, dissenting Justice, Frankfurter, dissenting

58. NLRB v. A.J. Tower Co., 329 U.S. 324, 332 (1946)

59. Hickman v. Taylor, 329 U.S. 495, 497 (1947)

60. Everson v. Bd. of Ed. 330 U.S. 1, 27 (1947) 61. Harris v. U.S., 331 U.S. 145, 150 (1947) 331 U.S. 198

63. Saia v. New York, 334 U.S. 558, 563 (1948)

64. Trupiano v. U.S., 334 U.S. 699, 709 (1948) 65. Shapiro v. U.S., 335 U.S. 1, 70 (1948)

62. Johnson v. U.S., 333 U.S. 10, 14 (1948)

Commentator Justice Murphy

Case

Commentary

(continued )

“If Congress by the easy device of requiring a man to keep the private papers that he has customarily kept can render such

(1) Vinson’s opinion of the Court refers in passing to “the rights of privacy and security protected by the Fourth Amendment. . . . ” (2) “The founders may have overvalued privacy, but I am not disposed to set their command at naught.” “Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing.” “[M]odern devices for amplifying the range and volume of the voice, or its recording, afford easy, too easy, opportunities for aural aggression. If uncontrolled, the result is intrusion into cherished privacy.” His dissent refers to “the vital rights of privacy.”

“The privacy of the voting process [in union elections], which is of great importance in the industrial world, would frequently be destroyed by post-election challenges.” “It is not without reason that various safeguards have been established to preclude unwarranted excursions into the privacy of a man’s work.” “ . . . privacy of the home” is a legitimate state interest.

Appendix A

307


Justice Douglas

66. McDonald v. U.S., 335 U. S. 451, 453 (1948) 67. Kovacs v. Cooper, 336 U. S. 77, 86–7 (1949)

Justice Black

Justice Frankfurter

Justice Frankfurter (plurality opinion) Justice Rutledge

68. U.S. v. Wallace & Tiernan, 336 U.S. 793, 798 (1949)

69. Wolf v. Colorado, 338 U.S. 25, 28 (1949)

70. Lustig v. U.S., 338 U.S. 74, 79 (1949)

71. Brinegar v. U.S., 338 U.S. 160, 176 (1949)

Justice Reed (plurality opinion)

Commentator

Case

papers ‘public’ and non-privileged, there is little left to either the right of privacy or the constitutional privilege.” His majority opinion characterizes “the right of privacy as one of the unique values of our civilization.” “The unwilling listener is not like the passer-by who may be offered a pamphlet but cannot be made to take it. In his home or on the street he is practically helpless to escape this interference with his privacy by loud speakers except through the protection of the municipality.” “The Silverthorne exclusion as explained in that case was designed to protect the privacy of people. . . . ” (It should be noted that Justice Holmes’s for the Silverthorne Court, 251 U.S. 385 (1920), makes no reference to privacy.) “Accordingly, we have no hesitation in saying that were a State to affirmatively sanction such police intrusion into privacy it would run counter to the guaranty of the Fourteenth Amendment. But the ways of enforcing such a basic right raise questions of a different order.” “The fact that state officers preceded him in breach of the rights of privacy does not negative the legal significance of this collaboration in the illegal enterprise before it ran its course.” Because “long-prevailing standards” protect privacy, “[n]o problem of searching the home or any other place of privacy was presented either in Carroll or here.”

Commentary

308 Appendix A


Justice Frankfurter, dissenting

Justice Black

Chief Justice Vinson

72. U.S. v. Morton Salt, 338 U.S. 632, 652 (1950)

73. U.S. v. Rabinowitz, 339 U.S. 56, 66 (1950)

74. Dist. of Columbia v. Little, 339 U.S. 1, 7 (1950)

75. American Communication Ass’n. v. Dodds, 339 U.S. 382, 398 (1950) 76. Niemotoko v. Maryland, 340 U.S. 268, 278 (1951) Justice Frankfurter, concurring in the result

Commentator Justice Jackson

Case

Commentary

(continued )

“Prevention of crime and assuring privacy in an industrial community where many worked night shifts, and had to obtain their sleep during the day, were held insufficient to justify the ordinance. . . . ”

“ . . . corporations can claim no equality with individuals in in the enjoyment of a right to privacy. . . . [L]aw-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.” “It is true that when one has been arrested in his home or his office, his privacy has already been invaded; but that interest, though lost, is altogether separate from the interest in protecting his papers from indiscriminate rummage, even though both are customarily grouped together as parts of the ‘right of privacy.’” (citing Learned Hand’s opinion for the Second Circuit in the same case, 176 F2d 732, 735 (CA 2, 1950)) “The right to privacy in the home holds too high a place in our system of laws to justify a statutory interpretation that would impose a criminal punishment on one who does nothing more than respondent here.” (Defendant was charged with interfering with a health inspection.) “We have noted that the blaring sound truck invades the privacy of the home. . . . ”

Appendix A

309


“No clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the right of privacy, or breach of peace can be thought to be inherent in the activities of every person who approaches the premises of an employee and publicizes the fact of a labor dispute involving the latter.” City invokes residential privacy as one of many interests to justify an anti-peddling ordinance. “The Government argues . . . that the search did not invade respondent’s privacy, and that he therefore lacked the necessary standing to suppress the evidence seized.” This argument is rejected. “We in this country . . . early made the choice—that the dignity and privacy of the individual were worth more to society than an all-powerful police.” “Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. . . . At times it has been his property that has been invaded, at times his privacy. . . . ”

Justice Frankfurter, concurring in the judgment

Justice Douglas, concurring Justice Douglas, concurring

81. U.S. v. Carnigan, 342 U.S. 36, 46 (1951)

82. U.S. v. Wunderlich 342 U. S. 98, 101 (1951)

Justice Clark

Justice Reed

“But the right of privacy does not extend to organized groups or associations which solicit funds or memberships or to corporations dependent upon the state for their charters.”

Justice Frankfurter, concurring

77. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 184 (1951) 78. Dennis v. United States, 341 U.S. 494, 557 (1951)

79. Breard v. Alexandria, 341 U.S. 622, 625 (1951) 80. U.S. v. Jeffers, 342 U.S. 48, 52 (1951)

Commentary

Commentator

Case

310 Appendix A


Commentator Justice Frankfurter

Justice Frankfurter

Justice Black, dissenting

Justice Douglas, dissenting

Justice Frankfurter, explaining his rationale for recusal

Case

83. Stefanelli v. Minard, 342 U.S. 117, 119 (1951)

84. Rochin v. California, 342 U.S. 165, 172 (1952)

85. Beauharnais v. Illinois, 343 U.S. 250, 285 (1952)

86. Public Utilities Commission v. Pollak, 343 U.S. 467–8 (1952)

343 U.S. 467

(continued )

Citation to Wolf’s (case #69) statement that “the security of one’s privacy against arbitrary intrusion by the police— which is the core of the Fourth Amendment—is basic to a free society.” “This is the conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents—this course of proceeding by agents of the government to obtain evidence is bound to offend even hardened sensibilities.” “Speech has . . . a preferred position as contrasted with other civil rights. For example, privacy, equally sacred to some, is protected by the Fourth Amendment only against unreasonable searches and seizures. There is room for regulation of the ways and means of invading privacy. No such leeway is granted the invasion of the rights of free speech. . . . ” (1) Dissenting from an opinion that upholds a street railway company’s authority to broadcast radio program through its loudspeakers, Douglas states: “The right to be let alone is indeed the beginning of all freedom. . . . My protest is against the invasion of . . . privacy over and beyond the risks of travel.” (2) “My feelings are so strongly engaged as a victim of the practice that I had better not participate in judicial judgment upon it. I am explicit as to the reason for my non-participation in this

Commentary

Appendix A

311


Commentator

Justice Douglas, dissenting

Justice Douglas, dissenting Justice Burton

Chief Justice Warren Justice Jackson

Justice Frankfurter, dissenting

Case

87. On Lee v. U.S., 343 U.S. 747, 762–3 (1952)

88. Schwartz v. Texas, 344 U. S. 199, 205 (1952) 89. Salsburg v. Maryland, 346 U.S. 545, 554 n. 11 (1954)

90. Pereira v. United States, 347 U.S. 1, 6 (1954)

91. Irvine v. California, 347 U.S. 128, 137 (1954)

347 U.S. 146

Approving citation of Wolf’s (case #69) statement that “were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment.” Approving citation of Wigmore on Evidence: “The presence of a third party negatives the presumption of privacy” in marital communications. (1) The electronic surveillance practices adopted by the police do not involve an “invasion of privacy” more shocking than the one in Wolf (case #69). (2) “Considering the progress that scientific devices are making in extracting evidence without violence or or bodily harm, satisfaction of due process would depend on the astuteness and subtlety with which the police engage in offensive practices and drastically invade privacy without authority of law.”

because I have for some time been of the view that it is desirable to explain why one takes himself out of a case. . . . ” “I now feel that I was wrong in the Goldman case [case #46]. Justice Brandeis in his dissent in Olmstead [case #30] espoused the cause of privacy—the right to be let alone. What he wrote is an historic statement of that point of view. I cannot improve on it.” Wiretapping “invades privacy.”

Commentary

312 Appendix A


Justice Frankfurter

Justice Reed, dissenting Justice Douglas

92. Brooks v. NLRB, 348 U.S. 98, 99–100 (1954)

93. Quinn v. U.S., 349 U.S. 155, 183 (1955) 94. Rea v. U.S., 350 214, 218 (1956) 95. Gold v. U.S., 352 985 (1957) Justice Brennan

Chief Justice Warren Justice Frankfurter, concurring

Justice Harlan, dissenting

96. Jencks v. U.S., 353 U.S. 657, 670 (1957)

97. Watkins v. U.S., 354 U.S. 178 198–9 (1957)

98. Sweezy v. Wyman, 354 U. S. 234, 266–67 (1957)

99. Roth v. U.S., 354 U.S. 476, 502 (1957)

Percuriam

Commentator

Case

Commentary

(continued )

“A petition or a public meeting—in which those voting for and against unionism are disclosed to management, and in which the influences of mass psychology are present—is not comparable to the privacy and independence of the voting booth.” “Mr. Fitzpatrick has been speaking of his right of privacy, speech and association, not of the privilege against self-incrimination.” The Federal Rules of Criminal Procedure “are designed to protect the privacy of the citizen. . . . ” “The judgment is reversed and remanded to the District Court to grant a new trial because of official intrusion into the privacy of the jury.” “The Government argues that [t]he rule urged by petitioner . . . disregards the legitimate interest that each party— including the Government—has in safeguarding the privacy of its files.” “Accommodation of the congressional need for particular information with the individual and personal interest in privacy is an arduous and delicate task.” “To be sure, this is a conclusion based on a judicial judgment in balancing two contending principles—the right of a citizen to political privacy, as protected by the Fourteenth Amendment and the right of the State to self-protection.” “And the State has a legitimate interest in protecting the home against invasion of unsolicited obscenity.”

Appendix A

313


Chief Justice Warren

Justice Brennan

100. Rathbun v. U.S., 355 U. S. 107, 111 (1957)

101. NLRB v. District 50, 355 U.S. 453, 460 (1958) 102. Miller v. U.S., 357 U.S. 301, 313 (1958) Justice Harlan

Justice Harlan

Justice Brennan, dissenting

103. Jones v. U.S., 357 U.S. 493, 497 (1958)

104. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958)

105. Beilan v. Bd. of Public Ed., 357 U.S. 399, 423 (1958)

Justice Brennan

Commentator

Case

“Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain.” Approving quotation of Brooks (case #92) concerning “the privacy and independence of the voting booth.” In referring to the 13th Yearbook of Edward IV, the Court speaks of “the reverence of the law for the individual’s right of privacy in his house. . . . ” “The decisions of this Court have time and again underscored the essential purpose of the Fourth Amendment to shield the citizen from unwarranted intrusions into his privacy.” “This Court has recognized the vital association between freedom to associate and privacy in one’s associations. . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” “I might agree that the Due Process Clause imposes no restraint against dismissal of a teacher who refuses to answer his superior’s questions asked in the privacy of his office and related to the teacher’s fitness to continue in his position.”

Commentary

314 Appendix A


Justice Douglas, dissenting

Justice Frankfurter

Justice Douglas, dissenting Justice Clark

Justice Brennan, dissenting Justice Douglas

107. Draper v. U.S., 358 U.S. 307, 318–19 (1958)

108. Frank v. Maryland, 359 U.S. 360, 362 n. 1 (1959)

359 U.S. 374

109. Uphaus v. Wyman, 360 U.S. 72, 78 (1959)

360 U.S. 84

Justice Stewart

Justice Douglas

106. Flaxer v. U.S., 358 U.S. 147, 149 (1958)

110. Henry v. U.S., 361 U.S. 98, 102 (1959) 111. Bates v. City of Little Rock, 361 U.S. 516, 523 (1960)

Commentator

Case

(continued )

Petitioner objects to disclosure of union membership lists, claiming these are “protected by a right of privacy.” He prevails in the Supreme Court, though not on this ground. “ . . . it is inconceivable that in those days [i.e., the late eighteenth century], when the right of privacy was so greatly cherished, the mere word of an informer . . . would be enough” to legitimate an arrest. (1) Citation to Wolf (case #69) while stating: “But giving the fullest scope to this constitutional right of privacy, its protection cannot be here invoked.” (2) “The decision today dilutes the right of privacy which every homeowner had the right to believe was part of the American heritage.” (1) “The interest of the guests at World Fellowship having been asserted, we have for decision the federal question of whether the public interests counterbalance these private ones.” Order for production of membership list upheld (2) Favorable citation to NAACP v. Alabama (case #104) concerning “freedom to associate and privacy in one’s associations. . . . ” “The immunity of officers cannot be fairly enlarged without jeopardizing the privacy or security of the citizen.” “Inviolability of privacy in group association may in many circumstances be indispensable. . . . ”

Commentary

Appendix A

315


Justice Black

Justice Frankfurter

Justice Douglas, dissenting Justice Frankfurter

Justice Stewart

112. Talley v. California, 362 U.S. 60, 71 (1960)

113. Abel v. U.S., 362 U.S. 217, 237 (1960)

362 U.S. 255

114. Jones v. U.S., 362 U.S. 257, 267 (1960)

115. Elkins v. U.S., 364 U.S. 206, 222 (1960) 116. Ohio ex rel. Eaton v. Price, 364 U.S. 263, 273 (1960) 117. Uphaus v. Wyman, 364 U.S. 388, 390 (1960) 118. Shelton v. Tucker, 364 U.S. 479, 490 (1960) Justice Black, Dissenting Justice Frankfurter, dissenting

Percuriam

Commentator

Case

“We have upheld complete proscription of uninvited door to door canvassing as an invasion of privacy.” Citation to Breard (case #79). (1) “Searches for evidence of crime present situations demanding the greatest, not the least, restraint upon the Government’s intrusion into privacy. . . . ” (2) “It is the individual’s interest in privacy which the [Fourth] Amendment protects, and that would not appear to fluctuate with the ‘intent’ of the invading officers.” Because appellant was lawfully on the premises, “the evidence in the possession of the police may be weighed by an independent judicial officer, whose decision, not that of the police, whether liberty or privacy is to be invaded.” Reference to “the protection of that individual privacy which it was the purpose of the Fourth Amendment to guarantee.” “On an adequate and appropriate showing in particular cases, the privacy of the home must bow before these interests of the public.” The appellant’s interest in “associational privacy” is jeopardized by the state investigation at issue in the case NAACP v. Alabama (case #104) and Bates v. Little Rock (case #111) properly protect an “interest in privacy, in non-disclosure. . . . ” But these cases aren’t relevant to the inquiry being conducted by the state of Arkansas in this case.

Commentary

316 Appendix A


Commentator Justice Frankfurter

Justice Douglas, dissenting

Justice Douglas, dissenting Justice Douglas, concurring

Justice Whittaker

Justice Douglas, dissenting Justice Douglas, dissenting

Case

119. Monroe v. Pape, 365 U. S. 167, 242 (1961)

120. Pugach v. Dollinger, 365 U.S. 458, 460 (1961)

121. Wilson v. Schnettler, 365 U.S. 381, 389 (1961)

122. Silverman v. U.S., 365 U. S. 505, 512–3 (1961)

123. Chapman v. U.S., 365 U. S. 610, 615 (1961)

124. Cohen v. Hurley, 366 U. S. 117, 156 (1961) 125. Communist Party of U.S. A. v. Subversive

(continued )

“The difficulties which confront private citizens who seek to vindicate in traditional common-law actions their state- created rights against lawless invasion of their privacy by local policemen are obvious. . . . ” “Yet today a majority of the Court summarily holds that Schwartz v. Texas is still the law, and petitioner is left only with the consoling knowledge that Congress meant to protect the privacy of his telephone conversations, while the benefits of the congressional amendments are denied him.” “It was before a colonial court that James Otis, Jr. made his plea against the infamous ‘writs of assistance.’ Since then the courts have played an honorable role in the protection of privacy.” “An electronic device on the outside wall of a house is a permissible invasion of privacy, according to Goldman [case #46] while an electronic device that penetrates a wall, as here, is not. Yet the invasion of privacy is as great in one case as in the other.” “When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.” He notes that Wolf (case #69) treats “privacy against arbitrary intrusion by the police” as a component of “ordered liberty.” “The Government may still threaten silence with prison, but its power to do so stops short when information sought is

Commentary

Appendix A

317


Justice Frankfurter (announcing judgment of the Court) Justice Clark

127. Culombe v. Connecticut, 367 U.S. 568, 580 (1961)

128. Mapp v. Ohio, 367 U.S. 643, 650, 656 (1961)

Justice Harlan, dissenting

Justice Douglas, dissenting

Activities Bd., 367 U.S. 1, 180 (1961) 126. Poe v. Ullman, 367 U.S. 517, 521 (1961)

367 U.S. 539

Commentator

Case

incriminating. Even so ardent an advocate of totalitarian states as Thomas Hobbes stopped short of this core of privacy.” (1) “ . . . ‘liberty’ within the purview of the Fifth Amendment [due process clause] includes the ‘right of privacy’. . . . ” The Connecticut anti-contraception statute at issue in the case “is an invasion of privacy that is implicit in a free society.” “This notion of privacy. . . . emanates from the totality of the constitutional scheme under which we live.” (2) “I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable invasion of privacy in the conduct of the most intimate concerns of an individual’s life.” “Often the place of questioning will have to be a police interrogation room, both because it is important to assure the proper atmosphere of privacy and non-distraction if judgment of questioning is to be productive. . . . ” (1) “Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government.” The Fourth and Fifth Amendments express “supplementing phrases of the same constitutional purpose—to maintain inviolate large areas of personal privacy.”

Commentary

318 Appendix A


Justice Harlan, concurring in the Judgment Justice Stewart

Justice Black, dissenting

129. Garner v. Louisiana, 368 U.S. 157, 203, n. 10 (1961)

130. Lanza v. New York, 370 U.S. 139, 143 (1962)

131. Shotwell Mfg. Co. v. U.S., 371 U.S. 341, 374, n. 12 (1963) 132. Cleary v. Bolger, 371 U.S. 392, 412 (1963) 133. Wong Sun v. U.S., 371 U.S. 471, 492 (1963)

134. Edwards v. South Carolina, 372 U.S. 229, 242 (1963)

Justice Harlan, dissenting

367 U.S. 678

Justice Clark, dissenting

Justice Douglas, dissenting Justice Brennan

Commentator

Case

Commentary

(continued )

His dissent criticizes “the unsound premise that, because Wolf [case #69] carried into the States, . . . the principle of ‘privacy’ underlying the Fourth Amendment, it must follow that whatever configurations of the Fourth Amendment have been developed . . . are likewise to be deemed a part of ‘ordered liberty’. . . . ” Approving quotation of Justice Roberts’s Cantwell remark about a “judgment that the playing of a phonograph on the streets should in the interest of comfort and privacy be limited or prevented.” “ . . . it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day.” “ . . . the freedom from unconscionable invasions of privacy and the freedom from convictions based upon coerced confessions do enjoy an ‘intimate relation’. . . . ” (Citing Mapp, case #128). Cites Wolf (case #69) in speaking of the state’s obligation to protect privacy. “The seizure of this heroin invaded no right of privacy of person or premises which would entitle Wong Sun to object to its use at trial.” Cites Thornhill (case #38) in arguing that the “power and the duty of the State to take adequate steps to preserve the peace and

Appendix A

319


Justice Brennan, dissenting

Justice Clark (plurality opinion)

Justice White, dissenting

373 U.S. 449

138. Ker v. U.S. 23, 30 n. 7 (1963)

139. Yellin v. U.S., 374 U.S. 109, 147 (1963)

136. Lombard v. Louisiana, 373 U.S. 267, 274 (1963) 137. Lopez v. U.S., 373 U.S. 427, 438 (1963)

Justice Goldberg

135. Gibson v. Fla. Legisl. Comm., 372 U.S. 539, 544 (1963) 372 U.S. 575 Justice Douglas, concurring Chief Justice Warren Justice Harlan

Commentator

Case

(2) “Where government is Big Brother [citing 1984], privacy gives way to surveillance.” “But a restaurant . . . has no aura of constitutionally protected privacy about it.” (1) “He was in the office with petitioner’s consent, and while there he did not violate the privacy of the office by seizing something surreptitiously without petitioner’s knowledge.” (2) “The right of privacy would mean little if it were limited to a person’s solitary thoughts, and so fostered secretiveness. It must embrace a concept of the liberty of one’s communications, and historically it has.” “Our holding as to enforceability of this federal constitutional rule [i.e., the Fourth Amendment exclusionary rule] against the States had its source in the following declaration in Wolf [case #69]: ‘The security of one’s privacy against arbitrary intrusion by the police . . . is implicit in the concept of ordered liberty. . . . ’” “ . . . the Committee’s construction of its own rule heralds no break with the tradition of the House or of Congress in

protect the privacy, the lives, and the property of its citizens cannot be doubted.” (1) The Due Process guarantee “encompasses protection of the privacy of association in organizations.”

Commentary

320 Appendix A


Commentator

Justice Douglas, concurring Justice White

Justice Brennan

Justice Clark, dissenting Justice Brennan

Justice Goldberg, Concurring

Case

140. Sherbert v. Verner, 374 U.S. 398, 412 (1963)

141. Ungar v. Sarafite, 376 U.S. 575, 585 (1964)

142. Malloy v. Hogan, 378 U.S. 1, 5 (1964)

143. Aguilar v. Texas, 378 U.S. 108, 121 (1964)

144. Bell v. Maryland, 378 U.S. 226, 253 (1964)

378 U.S. 313

(continued )

affording privacy to a witness when the hearing may be a fishing expedition. . . . ” “The harm is the interference with the individual’s scruples or conscience—an important area of privacy which the First Amendment fences off from the government.” “Neither in the courtroom nor in the privacy of chambers did the judge become embroiled in intemperate wrangling with petitioner.” “In light of later decisions [such as Mapp, case #128], it was taken as settled that the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth” Amendment. Approving citation of Brinegar’s (case #71) statement that “longprevailing standards seek to safeguard citizens against unreasonable interferences with privacy. . . . ” “The facts of these sit-in cases have little resemblance to any institution of property which we customarily associate with privacy.” “ . . . the constitutional protection afforded to private association assures against the imposition of social equality. . . . Prejudice and bigotry . . . are regrettable, but it is the constitutional right of every person to close his home or club or to choose his intimates and business partners solely on the basis of personal prejudices including race. These and other rights pertaining to

Commentary

Appendix A

321


Justice Brennan

145. Garrison v. Louisiana, 379 U.S. 64, 73 n. 9 (1964) 146. Schlagenhauf v. Holder, 379 U.S. 104, 112 (1964)

381 U.S. 491

Justice Goldberg

148. U.S. v. Ventresca, 380 U.S. 102, 105 (1965) 149. Griswold v. Connecticut, 381 U.S. 479, 485–6 (1965)

Justice Goldberg, concurring

Justice Douglas

Justice Stewart

147. Stanford v. Texas, 379 U.S. 476, 483 (1965)

Justice Goldberg

Commentator

Case

privacy and private association are themselves constitutionally protected liberties.” “Even the law of privacy, which evolved to meet Lord Campbell’s reservations, recognizes severe limitations where public figures or newsworthy facts are involved.” Rejecting a claim that discovery of medical records pursuant to Federal Rule of Civil Procedure 35 would be “an unconstitutional invasion of [petitioner’s] privacy. . . . ” “ . . . it was in the context of the latter kinds of general warrants that the battle for individual liberty and privacy finally won—in the landmark cases of Wilkes v. Wood and Entick v. Carrington.” The Fourth Amendment offers protection against “unnecessary invasions of privacy.” (1) “The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.” “We deal with a right of privacy older than the Bill of Rights—older than our political liberties, older than our school system.” (2) “To hold that a right so basic and fundamental and so deeprooted in our society as the right of privacy in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and give it no effect whatsoever.”

Commentary

322 Appendix A


Commentator Justice White, concurring in the judgment

Justice Black, dissenting

Justice Stewart, dissenting

Justice Clark

Case

381 U.S. 503–4

381 U.S. 508

381 U.S. 530

150. Linkletter v. Walker, 381 U.S. 618, 629, 637 (1965)

Commentary (3) “An examination of the justification offered . . . cannot be avoided by saying that the Connecticut anti-use statute invades a protected area of privacy and association or that it demeans the marriage relationship. The nature of the right invaded is pertinent, for statutes regulating sensitive areas of liberty do . . . require ‘strict scrutiny’ and ‘must be viewed in the light of less drastic means for achieving the same purpose.’” (4) “The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever law that might be passed which might abridge the ‘privacy’ of individuals. But there is not.” (5) “What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy ‘created by several constitutional guarantees.’ With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.” “ . . . the right to privacy [is] ‘the core of the Fourth Amendment.’” “ . . . the ruptured privacy of the victims’ homes and effects cannot be restored. Reparation comes too late.”

Appendix A

323


324

Appendix A

A Note on Methodology This appendix was constructed by conducting a LEXIS search for all references to the word privacy contained in the first 175 years of United States Reports. The first volume of this series is concerned with cases decided in 1790. The search ends in 1965, the year in which Griswold v. Connecticut was decided. Included in the appendix are references to privacy by counsel appearing before the Court. From volume 306 on, United States Reports omitted summaries of opposing arguments before the Court, so lawyers’ references to the term are provided only for the first century and a half or so of United States Reports. In many of the twentieth century cases cited, privacy is mentioned on multiple occasions. When the term is used more than once, the following criteria were employed in determining which passages to quote. First, at least one passage from a majority, plurality, concurring, or dissenting opinion is included. Second, the most important passages within these opinions have been selected for inclusion. And third, references to privacy by counsel in any given case are cited only when no opinion by a justice uses the term. Citations to cases other than those already mentioned in this Appendix have been omitted.


Appendix B Privacy and the Fourth Amendment Exclusionary Rule

Nineteenth century common law courts did not employ the exclusionary rule. Simon Greenleaf, a professor at Harvard Law School whose treatise on evidence was widely cited during the 1870s and 80s, outlined the standard approach of the day: It may be mentioned in this place that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.1

1

1 Greenleaf on Evidence Sect. 254 (a) (3d ed. 1892).

© The Author(s) 2016 W.C. Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2

325


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Appendix B

Boyd changed matters.2 Relying on its authority, the early twentieth century Court announced a number of rights-based rationales for excluding illegally seized evidence—rationales that drew on the Fourth Amendment (and sometimes the Fifth as well) to mandate suppression of evidence at trial when it had been secured in violation of a defendant’s constitutional rights. But while exclusion became entrenched in the federal courts (and was applied to state courts in Mapp v. Ohio, decided in 19613), its rise triggered a crisis of judicial confidence in the principles on which it relied, with the result that late twentieth century opinions repudiated the rights-based justifications previously offered for the exclusionary rule. The modern Court hasn’t returned to the pre-Boyd regime, however. Instead, it has recharacterized suppression as a remedy, stated that its aim is to deter police illegality, and substantially limited the rule’s scope by comparison with the version of it announced in Mapp. Put differently, the late twentieth century exclusionary rule went on a diet—but it stayed alive in American criminal courts. Because judicial reflections on privacy played an important role in both the rights-based version of the rule and in the modern conception of it as a remedy, the rise of privacy provides a way to understand what might otherwise appear to be a bewildering array of decisions that address the straightforward question of whether a criminal defendant may secure the suppression at trial of evidence obtained in violation of his rights.

2

It didn’t bring about immediate change. In Adams v. New York, 192 U.S. 585 (1904), Justice Day’s opinion for a unanimous Court relied on Greenleaf’s authority plus numerous decisions by common law courts to reject a defendant’s motion to suppress evidence at trial. Day’s opinion a decade later in Weeks v. United States, 232 U.S. 383 (1914), also for a unanimous Court, took exactly the opposite position: it held that a trial court must grant a defendant’s motion, if made prior to trial, of evidence obtained in violation of the Fourth Amendment’s procedural requirements. Adams and Weeks can be reconciled by saying that the latter upholds a pretrial motion to suppress whereas the former wasn’t concerned with this. To argue along these lines, however, is to place too much emphasis on a procedural fine point. Perhaps the best way to account for this reversal of position is to hypothesize that the Court was finding its way on a novel issue of law. 3 367 U.S. 643 (1961).


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Rights-Based Rationales for the Exclusionary Rule: The Early Twentieth Century Court’s Position If informational privacy is understandable in terms of an exclusionary claim an insider can advance against outsiders, it might seem obvious that someone who has suffered a violation of his right to exclude others should be able to insist at trial on exclusion of information obtained in violation of that right. A rule of this kind would create equivalence between the ex ante and the ex post. It would restore the informational status quo ante that existed before the legal wrong, thereby offering concrete reparation to the person complaining about a rights violation. Only on rare occasions, however, has the Court ever considered exclusion on the reparative ground just outlined.4 Numerous early twentieth judicial opinions, all influenced in one way or another by Boyd, treat exclusion as a matter of constitutional right, but they do so through reliance considerations only tangentially related to the privacybased rationale just outlined. One of these alternative rationales, derived directly from Boyd, relies on property, not privacy, rights: A “Mere Evidence” Rationale Bradley’s Boyd remarks, it will be recalled, distinguish between property the government may lawfully seize and that which it may not. “The two things differ toto coelo,” Bradley states. “In the one case, the government is entitled to the property; in the other it is not.”5 If an object is contraband, for instance, government officials may enter a home or office (provided a warrant authorizes this) and seize it. But if an object is licitly held, Boyd holds, it’s wholly exempt from seizure, an exemption that applies even if a warrant is issued for it. Whether The court appeared to endorse this rationale for suppression when it stated in 1968 that “the exclusion of evidence causally linked to the Government’s illegal activity no more than restores the situation that would have prevailed if the Government had itself obeyed the law” (Harrison v. United States, 392 U.S. 219, 224 n. 10 (1968)). No Court opinion since Harrison, however, has drawn on this rationale for suppression. 5 Boyd, 116 U.S. at 623–4. 4


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this “mere evidence” interpretation of Lord Camden’s Entick opinion is sound (a debatable point), it’s nonetheless the one the Court fashioned in holding private papers wholly exempt from seizure. Bradley’s Boyd reading of Entick thus gave rise to an exclusionary rule that immunizes certain property from government acquisition under any circumstances. The “mere evidence” rule protects privacy incidentally (for if personal papers are wholly exempt from seizure, they can’t be inspected), but the rationale for it is to be found in a claim about the impermissibility of government acquisition of certain kinds of personal property.6 What about contraband? In particular, what about motions to suppress evidence seized in violation of the Fourth Amendment’s procedural requirements (satisfaction of the probable cause threshold, for instance, and use of a warrant absent exigent circumstances) when someone can’t claim a lawful possessory interest in the evidence seized? The early twentieth century Court enlarged substantially on the “mere evidence” rule through reliance on two different, rights-based rationales for exclusion: A “No Use” Rationale for Evidence Seized in Violation of the Fourth Amendment’s Probable Cause Requirements In Weeks v. United States, a 1914 case, and Silverthorne Lumber Co. v. United States, decided in 1920, the Court extended Boyd by prohibiting the government from using evidence at trial when it was a obtained through reliance on a search warrant found to be procedurally defective under the Fourth Amendment. The Court’s Weeks opinion discusses the importance of protecting residential privacy and cites Boyd respectfully.7 But significant as this passage is, the most important portion of the opinion is the platform for a “no-use” rule based solely on the Fourth Amendment. Justice Holmes’s opinion for the Silverthorne Court announces such a rule. “The essence of a provision forbidding the acquisition of evidence in a 6

The Court relied on the mere evidence rule in Gouled v. United States, 255 U.S. 298 (1921) and United States v. Lefkowitz, 285 U.S. 452 (1932). 7 Weeks, 232 U.S. at 391–2.


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certain way,” Holmes remarks, “is not merely that the evidence so acquired shall not be used before the Court but that it shall not be used at all.”8 Holmes qualifies this no-use rule by allowing for evidentiary use of illegally obtained objects provided their acquisition can be traced to a source independent of the original wrong. This said, though, the Weeks/Silverthorne no-use framework vastly expanded the scope of Boyd’s (modest) exclusionary rule, for it focused attention not on the status of objects seized (i.e., whether they were licitly or illicitly held) but instead on the procedures followed in seizing them. The third rationale works an important variation on the no-use framework just outlined, one that returns to a premise essential to Bradley’s Boyd remarks, a premise unrelated to his approach to property rights: A “No Use” Rationale Based on the Interplay of the Fourth and Fifth Amendments Bradley’s Boyd opinion, it will be recalled, emphasizes the close connection between the Fourth and Fifth Amendments. In what was to become the standard framework for justifying the exclusionary rule during the first half of the twentieth century, the Court deployed both amendments to justify suppression of illegally acquired evidence. If something is illegally seized under the Fourth Amendment, the Court held, it is subject to suppression (assuming a defendant requests this prior to trial) under the Fifth Amendment (with, of course, the independent source option still available for presenting the illegally acquired evidence). For instance, in Agnello v. United States, a 1925 case, the Court held that since government agents had seized heroin by entering a defendant’s home without a warrant, the heroin should have been suppressed under the Fifth Amendment.9 Agnello purports to rely on Boyd. The citation notwithstanding, it’s clear a great distance is traveled in moving from “mere evidence” to contraband. 8 9

Silverthorne Lumber Co. v. United States, 251 U.S. 385, 390 (1920). Agnello v. United States, 269 U.S. 20 (1925).


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During the mid-twentieth century, exclusionary rule expansion occurred not by enlarging on Agnello’s scope but instead through the rule’s application to the states. Although the Court initially declined to follow this route,10 its decision in Mapp v. Ohio made exclusion a constitutional requirement in all state, as well as, federal courts—a momentous move since crimes against the person are typically adjudicated in state courts. Justice Clark’s Mapp opinion relies on a bells-and-whistles justification for the exclusionary rule. “[T]he exclusionary rule is an essential ingredient of the Fourth Amendment” itself, the opinion declares, a statement that treats suppression as an individual right through interpretive supplementation of the text.11 But the opinion doesn’t stop here. It also draws on the no-use rationale12 and invokes as well the Fourth/Fifth Amendment framework.13 To these well-worn justifications, Clark’s opinion adds a claim that exclusion is necessary as a deterrent-safeguard against police violations of the Fourth Amendment,14 that it promotes federal-state balance,15 and that it insures judicial integrity.16 Though only five members of the Court subscribed to Clark’s opinion, it seemed as if the exclusionary rule had achieved recognition in Mapp as a necessary component of privacy protection.

Exclusion as a Judicially Created Deterrence Remedy: The Modern Court’s Position But Mapp contained the seeds of its own undoing. Although littlenoticed at the time, the Court promptly produced a rationale that questioned exclusion’s capacity to offer relief for government violations of informational privacy interests. Acts that interfere with privacy interests are irreversible, the Court asserted in Linkletter v. Walker, a 1965 10

See Wolf v. Colorado, 338 U.S. 25 (1949). Mapp, 367 U.S. at 651. 12 Id. 655. 13 Id. 656–7. 14 Id. 656, citing Elkins v. United States, 364 U.S. 206, 217 (1960). 15 Id. 658. 16 Id. 659, citing Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). 11


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case. Violations of property rights can be repaired. If an object is wrongfully taken, it can be returned, thereby restoring the status quo ante. Similarly, violations of liberty interests can be repaired. If someone is falsely imprisoned, that person can be released. But the same can’t be said about informational privacy, the Court claimed. “[T]he ruptured privacy of the victims’ homes and effects cannot be restored,” Linkletter states. “Reparation comes too late.”17 This claim is clearly contestable. Although ruptured informational privacy is irreparable as far as the violating party is concerned, it’s also possible to contain privacy breaches—to take steps to limit disclosure and so to minimize substantially the damage brought about. Indeed, only a moment’s thought about the principles at stake in Whalen v. Roe, the 1977 case concerned not merely with government acquisition of medical data but also with its retention and dissemination, is sufficient to establish that the Court itself has been mindful of the importance of limiting disclosure of personal information.18 It’s by no means clear why this point hasn’t been raised in exclusionary opinions. A reasonable hypothesis for the Court’s failure to heed it is that suppression cases are typically thought to center on “low-value privacy”—on efforts to shield contraband from public scrutiny, in particular. Needless to say, this entire chain of reasoning about irreversible informational privacy wrongs is questionable, but it’s impossible to understand the modern Court’s position on the exclusionary rule without grasping Linkletter’s claim about the irreparability of breaches of informational privacy rights. In building on Linkletter, the modern Court has denied that the exclusionary rule is a personal constitutional right and has instead held that it is a judicially-created remedy whose function is to deter Fourth Amendment violations. More than the Linkletter premise about the irreparability of informational privacy wrongs is essential to this reformulated rationale for exclusion. In particular, it was essential for the Court to rethink the Fifth Amendment’s scope, for Boyd, Agnello, and Mapp (to name only the cases already considered here) all rely on the conjunction of the Fourth and Fifth Amendments to justify exclusion. As far as the Fifth 17 18

381 U.S. 618, 637 (1965). For further discussion of this point, see supra Chapter 11, notes 40–2 and accompanying text.


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Amendment is concerned, another post-Mapp case, Schmerber v. California, was critical, for Schmerber holds that the self-incrimination clause is concerned only with testimonial self-incrimination,19 thus making it impossible to invoke that provision to bar the admission of illegally acquired tangible objects (such as the heroin at issue in Agnello). Furthermore, it was essential to rethink the Fourth Amendment’s scope, for as we have seen early twentieth century decisions relied on a mere evidence rationale to hold that licitly held evidence is wholly immune from seizure. As for this rationale, the Court reversed itself in Warden v. Hayden, holding that “[n]othing in the Fourth Amendment supports the distinction between ‘mere evidence’ and instrumentalities, fruits of crime, or contraband.”20 The Court has gone beyond Linkletter, Schmerber, and Hayden in rethinking Mapp.21 Nonetheless, it’s fair to say that these three postMapp cases are the pillars of the modern claim that the rule is a judicially created deterrent remedy. Justice White’s opinion for the Court in United States v. Leon, decided in 1984, outlines the modern Court’s conception of the rule. In doing so, the White opinion repudiates past justifications of exclusion. At one time, White notes, the Fifth Amendment was thought to require suppression of evidence obtained in violation of the Fourth, but “[t]he Fifth Amendment theory has not withstood critical analysis or the test of time.” The mere use rationale was also rejected. And the no use conception of the Fourth Amendment outlined in Silverthorne has also been rejected, White notes, for the “[t] he Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands.” Moreover, White adds,

19

384 U.S. 757, 760–5 (1966). Warden v. Hayden, 387 U.S. 294, 301 (1967). 21 Andresen v. Maryland, 427 U.S. 463 (1976) is particularly significant in this regard, for it holds that the introduction into evidence of a defendant’s business records does not necessarily violate that defendant’s Fifth Amendment’s rights, thereby repudiating a key premise of Justice Bradley’s Boyd opinion. For an examination of the gradual dismantling of Bradley’s Boyd conclusion (and the retention of his positive valuation of privacy), see Note, “The Life and Times of Boyd v. United States,” 76 Michigan Law Review 184 (1976). 20


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an examination of [the Fourth Amendment’s] origin and purposes makes clear that the use of fruits of a past unlawful search or seizure “works no new Fourth Amendment wrong.” The wrong condemned by the Amendment is “fully accomplished” by the unlawful search or seizure itself, and the exclusionary rule is neither intended nor able to “cure the invasion of the defendant’s rights which has already occurred.” The rule thus operates as a “judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.”22 This passage contains four claims—three negative, and a final positive one—essential to the modern judicial conception of the exclusionary rule. The first claim has to do with the Fourth Amendment’s language— i.e., that it doesn’t mandate suppression of evidence obtained through a violation of its commands. The second claim, also negative, is that use at trial of evidence obtained in violation of a defendant’s rights “works no new Fourth Amendment wrong.” The third generalizes on Linkletter’s conclusion concerning the irreparability of privacy wrongs—i.e., it holds that exclusion is “neither intended nor able to ‘cure the invasion of the defendant’s rights which has already occurred.” The fourth claim has negative and positive elements. It concludes, unsurprisingly, that there is no “personal constitutional right” to exclusion, but it adds, as a consolation prize, that the rule is a judicially created remedy that can be justified as a deterrent safeguard against police violations of the Fourth Amendment. By substituting a remedial for a rights-based conception of the rule, the Court has granted itself considerable leeway in deciding when suppression is appropriate in criminal trials. In particular, its post-Leon decisions permit the prosecution to offer evidence in its case in chief (i.e., to establish guilt) when the evidence has been secured through a reasonable mistake about the legality of a search or seizure—as when a police officer

22

468 U.S. 897, 906 (1984) (citations omitted).


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relies on a statute that later turns out to be unconstitutional23 or relies on data-base information that turns out to be mistaken.24 In modifying the scope of exclusion, the modern Court has relied on a cost-benefit framework, one that considers the tradeoff between forgoing reliable evidence of guilt (a social cost) and deterring police illegality (a social benefit). Police violations of the law are unlikely to be deterred, modern opinions hold, if they are based on reasonable good faith mistakes about the law, so the social costs of deterrence are greater than the benefits generated by the threat of exclusion. In contrast, benefits outweigh costs when police intentionally or recklessly violate the law, in particular because deterrence is possible on these occasions and the social costs of police illegality are higher.25 On this reckoning, the exclusionary rule is a flexible device designed to promote not maximum, but optimal, deterrence of police illegality—i.e., suppression is warranted only when the “marginal benefits” of exclusion cannot “justify the substantial costs of exclusion.”26 Thus no criminal defendant can lay claim to exclusion as a matter of constitutional right, but suppression remains in place (in some, though not all) settings where illegally acquired evidence is presented at trial because of suppression’s general deterrent effect on police behavior.

Rethinking the Remedial Function of the Exclusionary Rule There is an obvious air of unreality to the cost-benefit framework used to justify the Court’s remedial conception of exclusion. Unreality because the benefits can’t be definitively established—since the deterrent effect of 23

Illinois v. Krull, 480 U.S. 340 (1987). Herring v. United States, 555 U.S. 135 (2009). 25 Leon outlines the cost-benefit framework at 468 U.S. at 909–13. 26 Optimality is invoked in the Leon Court’s summary of its position: “We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated warrant cannot justify the substantial costs of exclusion” (Id. 922). An appeal to “marginal benefits” presupposes inquiry where policy makers seek to optimize benefits. 24


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a rule that imposes no direct sanction on erring police officers has always been, and is likely always to remain, a matter of speculation.27 And further unreality because, even if the rule’s deterrent effect could be accurately identified, no conversion metric exists for calculating the tradeoff between the benefit of preventing constitutional violations and the cost of forgoing reliable evidence of guilt.28 The modern justification for the exclusionary rule, in other words, relies on ad hoc intuitions about the value to be assigned social costs and benefits. Current opinions appeal to the powerful conceptual tools employed by experts in microeconomics for thinking about optimality and declining marginal utility, but the opinions that invoke this terminology do so in the absence of reliable data for charting the slope of the utility curve under consideration—and they thus provide no way to determine when the nth benefit is exceeded by the nth cost. Is it possible to improve on this charade of microeconomic precision? A better approach can be found, I suggest, once a distinction is drawn between the kinds of remedial relief provided by exclusion. Think first about suppression as a first-party remedy—i.e., as a measure a court offers wronged parties to provide concrete reparation for harm already suffered.29 It can readily be granted that the exclusionary rule cannot be justified on this ground. Linkletter’s claim that informational privacy breaches are irreparable, while exaggerated because steps can be taken to limit the dissemination of illegally acquired information, counts against classifying it this way. But even though Linkletter goes too far, it’s nonetheless pertinent in this context, and in any event there are other reasons why exclusion should not be classified as a first-party remedy. One has to do with the nature of contraband—that is, if contraband 27

The Court has acknowledged that no studies have established that the threat of exclusion has a deterrent effect on police officers. See United States v. Janis, 428 U.S. 433 (1976). It hasn’t acknowledged how difficult it is to establish a deterrent effect of a threatened sanction in numerous other real-world settings. 28 The passage quoted supra in note 26 presupposes a (nonexistent) conversion metric for weighing costs against benefits. 29 The tripartite distinction between first-, second-, and third-parties remedies employed here is developed at greater length in William Heffernan, “The Fourth Amendment Exclusionary Rule as a Constitutional Remedy,” 88 Georgetown Law Journal, 88 Georgetown Law Journal 799 (2000).


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(drugs or guns, for instance) is discovered during the course of an illegal intrusion, it of course shouldn’t be given back, with the result that the exclusionary rule can’t be said to restore the status quo ante (and of course this is the aim of a first-party remedy).30 Another factor worth considering here has to do with defendant perjury. If courts were to disregard information obtained through a privacy wrong, defendants might be able to testify safely by offering false statements about their activities. But this too would be unacceptable—so the prospect of tolerating perjury stands another reason not to think of exclusion in first-party terms.31 The modern Court has moved from these convincing (negative) points to the unconvincing (positive) claim that exclusion can be justified only as a third-party remedy—i.e., as a measure whose sole value is that it protects the public at large. It can readily be granted that the possibility of any remedy is likely to serve as a general deterrent, for in signaling that they’re willing to respond to past wrongs courts also take steps that discourage future wrongs. To note this, however, is merely to say that remedial relief typically has the incidental effect of deterring future wrongdoing. It’s not to say that the sole justification for remedial relief should rely on deterrence, for if so the very notion of a remedy becomes problematic since remedies are provided in response to past wrongdoing, not as a windfall benefit for a party who has no valid claim to relief. Fortunately, there is a relatively straightforward way to escape from the trap the Court has set for itself. This is to think of the exclusionary rule as a second-party remedy—not as a remedy that repairs the wrong suffered by the victim of a Fourth Amendment violation but instead as 30

The Court confronted the issue of contraband in early exclusionary cases: United States v. Amos, 255 U.S. 313 (1921) (alcohol) and Agnello v. United States, 269 U.S. 20 (1925) (heroin). In neither case did the defendant request return of what was taken, but the possibility of restoring the status quo ante existed because Weeks and Silverthorne were concerned with motions for return of lawfully possessed evidence. 31 The Court first addressed the possibility of defendant perjury about the findings of an unlawful search in Walder v. United States, 347 U.S. 62 (1954). It held that illegally seized evidence is inadmissible in the prosecution’s case in chief but may be used to impeach a defendant’s testimony.


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one that disgorges the government of its ill-gotten gains. Disgorgement remedies are commonly employed in unjust enrichment settings.32 As far as search and seizure law is concerned, the government can be said to enrich itself at the expense of a private citizen when it breaches rights of informational privacy. In disgorging the government of the information it acquires through a Fourth Amendment violation, a court takes a step that has the incidental effect of deterring future police illegality. But disgorgement also responds to a wrong that has already occurred since it strips the government of information obtained in violation of the Constitution. By classifying the exclusionary rule as a disgorgement remedy, one can make sense of the “no-use” rationale for suppression announced in Silverthorne. Justice Holmes’s opinion in that case doesn’t appeal to the Fifth Amendment to justify suppression. Indeed, it doesn’t treat exclusion as a matter of individual right. Rather, it relies on the premise that a provision which establishes a protocol for acquiring evidence must be honored by disgorging the government of evidence acquired in violation of that provision. Because this is not a rights-based argument—because it focuses on the government’s wrongdoing—it allows for the kind of flexibility essential to remedial reasoning (it’s compatible, for instance, with a rule that prohibits the return of contraband and compatible with a rule that prevents perjury). Moreover, by thinking about exclusion as a disgorgement remedy, one can d`efend its deterrent effect—incidental deterrent effect, it should be emphasized— on the police while still saying that its primary purpose is to ensure that the government does not enlarge its powers through violation of the charter of its own existence.

32

On the analysis presented here, exclusion adheres to the general principle that informs all cases of unjust enrichment. The principle has been stated in the following way: “It makes sense in all cases to force the wrongdoer to disgorge his profits, even if that puts the plaintiff [i.e., the victim of the wrong] in a better position than if he had never been wronged at all” (Dan Dobbs, Law of Remedies: Damages-Equity-Restitution Sect. 6.1 (4) (2nd ed. 1993)).


Index

A Ackerman, Bruce 52, 52n50 Adair v. United States 168 Adams, Henry 126 Adams, John 103, 103n9 Adams, Samuel 103, 103n8 Adkins v. Children’s Hospital 174 Agnello v. United States 329, 336n30 Alger, Commonwealth v. 172 Alito, Samuel 183, 264, 265, 266 Allgeyer v. Louisiana 168, 293 Amalgamation 90, 92, 96 American Constitution 6, 18, 24–25, 26, 35, 39, 54, 55, 64, 92, 102–108, 154, 157 as a blueprint 10, 88 as a plan of government 5, 10 American constitutionalism 18, 26, 35, 54, 55, 102–108

American Dictionary of the English Language (Webster) 10, 11n23, 30n14 Amsterdam, Anthony 255, 255n42 Arendt, Hannah 104 Aristotle 105, 105n17 Article I 24n3, 32, 43, 68, 135, 167 commerce clause 41, 84 contracts and 167 necessary and proper clause 32 Article II, age threshold for the presidency 68 Article V 6–11, 18, 25, 27, 28, 29, 35, 36, 37, 38, 40, 42, 46, 50, 52, 52n50, 52n51, 53, 55, 57, 58, 60, 62, 64, 72, 78, 79, 81, 86, 87, 95, 133, 134, 154, 155, 204 Article V bypass 42, 52, 57, 95

© The Author(s) 2016 W.C. Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2

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Index

Articles of Confederation 28 Authorization of the Use of Military Force 245

B Baird, Bill 279 Baker, Richard 267, 268, 268n6, 269, 270, 271, 285 Baker v. Nelson 269n7, 270n10 Balkin, Jack 53, 53n52 Barron v. Mayor and City of Baltimore 171 Benson, Egbert 58 Bentham, Jeremy 237, 237n6 Bible 68, 68n24, 154n32 See also Synecdoche-based interpretation Bickel, Alexander 61, 61n8, 87n15 Bill of Rights 1–2, 25, 33, 34, 46, 60, 75, 102, 107, 107n23, 109, 110, 135, 153, 171, 187–212 penumbral emanations from 194–198 See also Penumbras-of-privacy Black, Hugo 6 Blackstone, William 109n26, 110, 111, 136n5, 199 Bolling v. Sharpe 9, 62, 74, 77, 273 Bond v. United States 14, 259 Bowers v. Hardwick 96, 156n35, 273n17, 274 Boyd v. United States 133, 261 See also Privacies of life Bradley, Joseph 138–144, 145, 149, 155–156 Brandeis, Louis 149n11 See also Right to be let alone

Brennan, William 160n48, 230 Brown v. Board of Education 77 Burke, Edmund 272, 272n15, 273, 276, 289, 291 Bush, George W. 236, 236n3, 244, 245, 246, 247, 247n26, 263

C Caldwell v. Taggart 136 California State Constitution 24 Camden, Lord (Charles Pratt) 139–140, 140n16, 141, 143, 150, 161, 193, 213 Cannon v. United States 137 Carolene Products, United States v. 182 Chaucer, Geoffrey 116 Civil Rights Act of 1875 88 Clapper v. Amnesty International 248 Clark, Tom 330 Common law 73, 110, 114, 134, 136, 140, 141, 148, 149–152, 153, 153n25, 154, 159, 160, 209, 210n47, 233n47, 278 Constitutional afterthought 1, 5, 6, 7, 28, 29, 52n50, 104 modern constitutional doctrine 5 Contract, freedom of 91n23, 167–184, 190 contractual freedom 167–170, 175, 177, 178, 180, 181, 191 economic exploitation 178 limitations on 169 unionization and 169 Cooley, Thomas 149


Index

Countermajoritarian difficulty 61, 64, 65, 277 Coverture 199, 200 Crime Control Act of 1968, Omnibus 219n19, 220

D Databases 215, 218 Declaration of Independence 12, 146, 147, 220, 258, 263 Desegregation 77, 80, 82n8, 83, 87, 88–89 Developmental constitutionalism as applied to school segregation 86 emergent doctrine 270 Developmental supplementation 11, 52n50, 74, 77–96, 144, 155–157, 162, 170, 181, 184n44, 190–201, 208, 222, 273, 277 evaluative supplementation 158 Dictionary of the English Language (Johnson) 10, 11n23, 30, 120n13 Discussions and adjudications 37, 42n35, 51, 63, 63n14 See also Federalist;Textual liquidations Douglas, William 107, 143, 153, 155, 183, 188–200, 193n14, 195n17, 196n18, 208, 214, 217, 220, 221, 229, 269, 276 Dred Scott v. Sanford 28n9

341

E Economic individualism 173, 175, 204 Eighth Amendment 18, 18n36, 49, 79n4 Eisenstadt v. Baird 278 Elias, Norbert 114n1, 116–118, 116n6, 117n7 Ellickson, Robert 115, 115n2 Emerson, Ralph Waldo 128, 128n29, 128n30, 129, 129n32, 129n33, 130, 130n34, 151, 151n15, 194, 204, 204n31 Emersonian themes 204 Entick v. Carrington 139, 139n12, 193, 213, 213n2, 264 Erasmus, Desiderius 114 European Convention on Human Rights 23, 23n2 Ex ante deliberation 30 terminological propriety 252 Ex post uncertainty 30, 35

F Federal Communications Act of 1934 217, 217n9, 220 Federalist, The Federalist 10 (Madison) 105, 105n19 Federalist 37 (Madison) 36, 36n24, 42n35, 47, 51, 63, 63n14 (see also Discussions and adjudications; Textual liquidations)


342

Index

Federalist 39 (Madison) 5n12, 25, 25n6, 153, 153n27, 294n4 Federalist 49 (Madison) 35, 35n23, 37 Federalist 69 (Hamilton) 99, 99n2, 100 Field, Stephen 91, 173, 174 Fielding, Henry 104, 120, 121n15, 122 Fifth Amendment due process clause 2, 80, 82, 83, 168, 170, 174, 192, 195n17, 208, 209, 274, 275 grand jury clause 107 self-incrimination clause 332 First Amendment communicative expression 66, 67, 69, 70, 71, 78, 183, 183n42 establishment clause 107 music, right to perform 62, 71, 72, 73, 167 speech and press clauses 62, 66, 147 Fiske, Robert 118 Foreign Intelligence Surveillance Act (FISA) of 1978 236 Fourteenth Amendment citizenship clause 82, 83 due process clause 2, 80, 82, 83, 168, 170, 174, 192, 195n17, 208, 275 (see also Procedural due process; Substantive due process) equal protection; denigration rationale 288 group based vs. individualized 91

Fourth Amendment 1–4, 10, 12, 14n29, 46, 84, 107, 110, 135, 139, 140n16, 142, 145, 156, 158, 161–163, 181, 183, 188, 196, 196n18, 197, 210, 211, 214, 215, 219–226, 229, 231, 238, 242, 245, 246, 250, 255, 256n43, 264, 325–337 exclusionary rule 325–337 Frankfurter, Felix 153, 246 Free labor dignity of 170 ideology 169, 170, 173, 277 Free-market 175 market coercion 177 Frontiero v. Richardson 282

G Gay-marriage 267, 268n6, 270, 278, 285, 289 Ginsburg, Ruth 280–283, 280n28 Global positioning systems surveillance 17, 241, 264 Glucksberg, Washington v. 206, 207, 207n39, 274–275 Goesele v. Bimmler 136 Goldman v. United States 190 Graglia, Lino 82, 82n7 Green, T. H. 177, 177n27 Greenleaf, Simon 325, 326n2 Griswold v. Connecticut 6, 46, 52n50, 84, 107, 153, 183, 187, 188, 269, 293n3


Index

H Hamilton, Alexander 33, 33n20, 34, 40, 41, 41n34, 46, 63n14, 83, 99, 100 Harlan, John Marshall II 12, 13, 15, 226–228, 238, 242, 253–256, 259 See also Privacy, reasonable expectations of Hart, Levi 104, 104n13 Hartley, Thomas 59–60, 67 Hayden, Warden v. 332, 332n20 Hendrick, Thomas 90 Henrich, Joseph 290, 290n49 Hill v. Tucker 136, 136n4 Holmes, Oliver Wendell 152, 152n21 Hook, Theodore 216, 216n5 Hoskins, W.G. 125, 125n19 Hughes, Charles Evans 178–180, 182n36 I Informal social order 115, 131 Interpretive supplementation analogical justification 38, 39, 46, 62, 69 Libertarian approach 159 not in the text rationale 72, 83 as reappraisal 19, 154 as retrojection 148, 153, 154, 154n32, 164, 271 teleological justification 40 as transvaluation 159 See also Madisonian framework; Extended Madisonian framework; Bill of Rights, penumbral emanations from

343

J Jackson, Ex Parte 135, 135n2, 163, 223n31 James, Henry 216, 216n6 Jay, John 100, 123, 123n16 Jefferson, Thomas 27, 27n7, 27n8, 28, 29, 29n12, 35, 294 Johnson, Samuel 11n23, 30n13, 120, 120n13, 120n14 See also Dictionary of the English Language (Johnson) Jones, United States v. 249, 250, 250n34, 264, 264n53, 265n56, 266

K Katz v. United States 1n1, 4n11, 12, 46, 46n37, 187, 212, 213, 220n20, 242n12 Kennedy, Anthony 62, 65n16, 72–74, 79n4, 155, 271, 275, 275n22, 276, 284, 285, 287, 288 Kernan, James 127, 127n25 King, Martin Luther, Jr. 217, 217n11, 219n18 Knox v. Lee 38n30 Kyllo v. United States 211n51, 254, 255n41, 266, 266n57 L Lafayette, Marquis de 41, 42n35, 43–44, 63n14, 295n9 Lawrence v. Texas 17, 17n33, 61n10, 67n21, 84, 155, 155n34, 170, 170n8, 183, 188


344

Index

Lawrence v. Texas (cont.) 188n4, 203, 203n29, 207n39, 267, 271 Lemaistre, J.G. 215, 215n4 Leon, United States v. 332 Linkletter v. Walker 331 Livius, Titus Livy 104n14 Lochner v. New York 159n42, 168, 168n3, 192, 287 Locke, John 109, 110n29, 129, 139, 139n12 See also Privacy rights, Lockean justification for Louisiana Purchase 27, 29, 42, 55 Loving v. Virginia 92, 92n27, 269, 270n9 M Macedon Convention 173 Machiavelli, Niccolo 100, 104, 104n14 Madison, James 5, 10–11, 25–26, 29, 32–44, 46–55, 62–64, 74–75, 96, 100, 102, 105, 105n19, 106, 108, 109–111, 140, 146, 146n4, 150, 153, 153n27, 154, 155, 157, 157n39, 162, 172, 204 Madisonian framework 38–39, 44, 51, 53n52, 62–65, 201 extended Madisonian framework 63, 65, 70, 71, 74, 80, 91, 157, 163, 169, 184n44, 189, 200, 206, 231, 271–278, 281, 286, 287, 291 Mansfield, Lord (William Murray) 19

Mapp v. Ohio 196, 326, 330 marriage, companionate 189, 198, 200 See also Coverture; Gay-marriage McConnell, James 267–269 McConnell, Michael 51n48, 87–88, 88n16, 89, 89n19, 92, 94 McCulloch v. Maryland 38n29, 61, 61n9, 63n14 McLaughlin v. Florida 92, 92n26 McNealy, Scott 235–237 Metadata analysis 262 Mill, John Stuart 206–207 Minimum wage federal legislation 168–169 state legislation 175 Minnesota v. Olson 210, 211n50, 259 Montesquieu, Baron de 105, 105n18 Morris, Gouverneur 9, 28n11, 47, 123 Moschella, William 245, 245n23 Murphy, Francis 153

N NAACP v. Alabama 7n16, 182n38, 195n17 NASA v. Nelson 67n22, 183n41, 183n43, 202n26, 213n1, 214, 229n37 National Security Administration 236 Nicholas, Wilson 27, 27n7 Ninth Amendment 25, 33–34, 37n26, 57n1, 69, 279


Index

O Obergefell v. Hodges 78, 78n3, 203, 203n28, 270n10, 271, 277, 284 Olmstead v. United States 12n24, 145n2, 146, 330n16 Olsen v. Nebraska 190, 190n9, 192 Olson, Theodore 86–87 On Lee v. United States 191, 191n11 Originalism See also Plan-as-draught originalism; Plan-as-scheme originalism; Plan-as-scheme vs. plan-as-draught originalism Orwell, George 216, 216n7, 217–218, 235, 235n2 P Pace v. Alabama 91, 91n22, 92 Packard, Vance 218 Page, John 59, 67, 70 Panopticon 237, 237n6 Passenger Cases 38n32 Peckham, Rufus 168 Penumbras-of-privacy peripheral rights and 199 See also Bill of Rights, penumbral emanations from; Douglas, William; Griswold v. Connecticut Philadelphia Convention 1, 25, 28, 33, 46–47, 106 Physician-assisted suicide 206, 206n35, 207n39 Plan-as-draught originalism precisionizing strategy 51

345

Plan-as-scheme originalism vs. plan-as-draught originalism 47–54 Planned Parenthood v. Casey 207, 207n27, 208n30, 288, 289n33 Plessy v. Ferguson 91, 91n23 Plumbing, indoor 127, 128, 128n21, 129 Police power doctrine of 175 regulatory authority and 178 scope of 177–180, 182, 183 Polygamy 294, 296 Privacies of life 137, 142, 145–147, 149, 153, 160, 165, 198, 200, 200n18, 266 Privacy, reasonable expectations of 254, 261n43 Privacy, taxonomy of Brandeis’s general right to privacy 151 communicative privacy 124, 146, 156, 158, 163–164, 183, 219, 223 corporate privacy interests 261, trade secrets, 261 informational privacy acquisition of 208–209 disclosure of 208–209, 215 privacy-as-autonomy-withinpersonal-life 101, 164, 193, 201 privacy vs. secrecy 250, seclusion interests130 residential privacy 210, 211 substantive vs. procedural 85, 234


346

Index

Privacy conventions secrecy and 13, 122, 124–125, 231 as source of constitutional law in Katz 229 See also Privacy signals Privacy protection forbearance model 14, 14n29, 15, 16, 242–243, 254, 259, 260, 262 vigilance model 242–243 Privacy rights, genealogy of as dependent on property rights 101, 124 modern system of constitutional privacy protection 18 social norms as source of privacy rights 15, 110 as synonymous with privity 99 Privacy signals exclusion and 243 shield-privacy 124 See also Privacy conventions Private facts 116, 118, 118n6, 119, 120, 126, 134, 164, 164n47, 213–214, 216, 236, 237n47, 238, 262, 263, 265, 266 Procedural due process 85, 85n13 Property rights dearest property 140, 143, 150, 194 (see also Entick v. Carrington) Lockean justification for 129 narrow vs. enlarged sense 110 Publius 99–100

R Reconstruction Amendments 169, 172 Republicanism civic vs. liberal republicanism 100, 105 Resulting rights 84, 188 Right to be let alone 115, 145–165, 181, 184, 191, 209, 222, 238, 266 Riley v. California 17, 17n35, 266, 266n58 Roberts, John 183, 287, 290 Roe v. Wade 192n12, 271, 277, 280n28 Roosevelt, Franklin 177, 217, 217n10 Rush, Benjamin 103, 103n7, 103n10, 105, 127, 129 Rutledge, Wiley 153

S Same-sex marriage 78, 78n3, 86, 87, 203, 268, 269, 270, 270n11, 271, 284, 285, 286, 287, 288 Sanger, Margaret 156, 156n36 Scalia, Antonin 48n44, 49, 49n45, 50n47, 51, 62, 65, 65n18, 66, 66n19, 67, 67n21, 68, 69, 70, 71, 71n28, 73, 74, 74n31, 78, 79n4, 86, 87, 183, 183n42, 208, 209, 223, 223n30, 254, 255, 264 Schmerber v. California 332 Second Amendment 107


Index

Sedgwick, Theodore 58–60, 83, 110, 154 Shaw, Lemuel 172, 173, 180 Silverthorne Lumber Co. v. United States 328, 329n8 Sixth Amendment petit jury clause 107 Skinner v. Oklahoma 196n18, 269, 269n8 Slaughter-House Cases 173 Smith v. Maryland 233, 234n49, 242n14, 243, 247, 249, 250n34, 260 Snowden, Edward 236, 236n5, 247, 248, 249, 253, 256, 263 Snowden revelations 247–250 Social Security Act 180 Solove, Daniel 4n11, 160n47, 217, 217n10 Sotomayor, Sonia 249, 250, 250n34, 258, 264, 264n54, 265 Stalin, Josef 216 Stanley v. Georgia 210 State secrets doctrine 252 Stellarwind, Operation 244, 244n19, 245, 245n22, 246, 263 Stevens, John Paul 214, 229–234 Stewart, Potter 187, 193, 193n14, 198, 214, 215, 220, 221, 221n24, 222, 223, 224, 225, 226, 227, 228, 229, 232, 233, 234, 238, 242, 254, 259, 265 Stoner v. California 188n3, 210 Story, Joseph 107, 107n22 Strahilevitz, Lior 256–257, 256n43 Strauss, David 52, 52n51

347

Substantive due process 85, 188, 194, 195n17, 207n39, 231, 233, 269, 272, 274, 275, 276, 281, 287, 288, 289 Supplementation of the constitutional text by amendment 1, 101 by stealth 221 through unobtrusive exercises 230 See also Article V; interpretive supplementation; Madisonian framework Surveillance Surveillance biometric 241 closed-circuit television 241 drones 241 global positioning systems 241, 264 passive millimeter-wave imaging 241 sense-enhancing technology 241 thermal imaging 241, 255, 266 Sutherland, George 174–176 Synecdoche-based interpretation 67, 68, 68n23, 68n24

T Taft, William Howard 161–163, 221, 221n25 Tehan v. Schott 202 Tenth Amendment 32, 34, 40, 42n35 Textualism 5, 210 Textual liquidations 63, 80 See also Discussions and adjudications; Federalist 37


348

Index

Third Amendment 107, 110, 196, 196n18, 201, 210 Third-party doctrine 249 See also Privacy protection, forbearance model Thirteenth Amendment 169 Thoreau, Henry David 128, 128n28, 194 Todorov, Tzevetan 68, 68n25 Tom Jones (Fielding) 120, 121n15 Truman, Harry 9, 9n21, 246 Trumbull, Lyman 90 Tucker, Thomas Tudor 32–33, 33n18, 40

U Unenumerated vs. implied rights 5, 10 incomplete textual specification 32–35, 60, 83 See also Resulting rights United Nations 23 UNIVAC 218 Universal Declaration of Human Rights 23 USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act 243, 249

V Valcourt, Robert de 124, 124n18, 125, 130, 131, 132 moral right of privacy 131 Verdi, Giuseppi 73 W Wagner Act 180 Ward v. Rock against Racism 62, 71 Warren, Earl 78, 81–82 Warren, Samuel 149, 149n11, 159 Webster, Noah 10, 11n23, 30, 30n14, 31, 49, 93, 93n28, 106, 106n21, 107, 108n25 See also American Dictionary of the English Language (Webster) Weeks v. United States 326n2, 328 West Coast Hotel v. Parrish 177, 190 Whalen v. Roe 208, 213, 228, 331 White, Byron 332 Whitman, Walt 128, 128n27 Wilson, James 33, 34 Wiretapping 146, 149, 156, 161, 217, 257 Z Zeitgeist 71, 74