David Garrow's Liberty and Sexuality led me to Pavesich v. New England Life Insurance (1905), which might be the first court that expressly spoke of a "right to privacy," even speaking about the due care that should be practiced with newly applied rights. It involved a tort claim for unwanted publicity, but it set forth broad principles. A taste:
The individual surrenders to society many rights and privileges which he would be free to exercise in a state of nature, in exchange for the benefits which he receives as a member of society. But he is not presumed to surrender all those rights, and the public has no more right, without his consent, to invade the domain of those rights which it is necessarily to be presumed he has reserved than he has to violate the valid regulations of the organized government under which he lives. The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence. Any person whose intellect is in a normal condition recognizes at once that as to each individual member of society there are matters private and there are matters public so far as the individual is concerned. Each individual as instinctively resents any encroachment by the public upon his rights which are of a private nature as he does the withdrawal of those of his rights which are of a public nature.
First principles are helpful when considering the true breadth of the National Surveillance State and governmental power generally so as not to be limited in scope to attacks on Cheney or the like. This general issue is a major concern of Jack Balkin. Relatedly, see also Glenn Greenwald today on signs there actually will be some sort of special prosecutor (or something) chosen to investigate the Bush Administration. The contours are hazy as of now -- fears it will be woefully limited -- and I reserve judgment. Don't want some shadow of an investigation, which will be token in scope, but enough for people to say "happy now?" [No]
Meanwhile, Hilzoy is concerned with news that some might be "targeting" Frank Ricci. The article cited (even if the source is generally to be trusted) is overblown with references to Anita Hill and the like. And, if making sure the press understands all sides of the story is bad, should the reporting by Dahlia Lithwick and others on his past discrimination plans be deemed problematic? Personal stories are used by both sides to understand legal principles as it can here, if done right. Anyway, good thing he was not a state employee when he sued for an ADA violation:
We decide here whether employees of the State of Alabama may recover money damages by reason of the State’s failure to comply with the provisions of Title I of the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 330, 42 U.S.C. § 12111—12117.1 We hold that such suits are barred by the Eleventh Amendment.
Maybe Sen. Specter, who is concerned with the lengths of the Court's federalist jurisprudence was taken, particularly in overriding federal law, can bring it up? Oh well ... at least Balkinization is lightening their more restrictive comments policy in important cases. And, a recent hit to my blog was to this interesting past entry.