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Sunday, January 19, 2014

"the purpose of the courts well to uphold the right to privacy"

"Rev." Joe providing some thoughts on Firefly, we move to another favorite subject -- privacy rights.

A recent post cited a good summary of why it is important, some of the reasons at least having a constitutional component. Anita Allen, who wrote some books on the topic, wrote in Balkin's book providing alternative opinions to Roe v. Wade that there were at least four aspects of privacy. Later, she helpfully noted in response to a comment that there are more correctly at least six.  The "right to privacy" might be phrased by some as part of "liberty" (see, e.g., Lawrence v. Texas) now, but I think the concept reflects important principles and deserves to be honored.

The importance of "privacy" was famously addressed by Brandeis and Warren in a famous law review article over a hundred years ago. Various opinions spoke of the importance of "privacy" or "private life" in various respects, related to various things.  So, Griswold v. Connecticut was in no way something that came out of nowhere. It is therefore unfortunate that it is so thinly argued. Like Roe v. Wade, et. al., I am annoyed by the breadth of criticism since as a whole, especially relatively speaking, such opinions have merit.  Particularly for the basic core thing being protected, which is not always able to be expressed in a crystal clear way.

This immediately came to mind in response to a comment by a law professor thinking about writing about the "Four Horsemen." One of the mostly forgotten ones in Justice Butler, though on some level, he seems an interesting character -- e.g., the sole dissenter in Buck v. Bell. See, e.g., the article I linked here.  OTOH, it is somewhat telling that he dissented without an opinion. Like the solo dissent without opinion (then because of illness) in Bradwell v. Illinois (woman's right to be a lawyer), an unfortunate example of an alternative viewpoint being absent.  As suggested by the article, there were lower court opinions declaring eugenics laws unconstitutional. There was another way.

Justice Douglas touched upon cases where there was a right to privacy though it was a half-way effort (Justice Harlan did more in his dissent in Poe v. Ullman).  He did some more heavy-lifting in a separate opinion for Doe v. Bolton, the companion case to Roe.  This included a brief reference to a few cases involving congressional investigatory powers that recognized limits when privacy is violated. Sinclair v. U.S., a unanimous Butler opinion is cited.  The outer limits of Congress' power is unclear but the concern for privacy led the Supreme Court to carefully examine the need and nature of the investigations. IOW, there was -- to use current language -- some heightened scrutiny warranted. As the opinion noted:

It has always been recognized in this country, and it is well to remember, that few if any of the rights of the people guarded by fundamental law are of greater importance to their happiness and safety than the right to be exempt from all unauthorized, arbitrary or unreasonable inquiries and disclosures in respect of their personal and private affairs. In order to illustrate the purpose of the courts well to uphold the right of privacy, we quote from some of their decisions.
The sentiment was followed in Watkins v. U.S., a Red Scare case. Justice Butler, as shown in the article, was consistent -- e.g., he was a dissenting vote in Olmstead v. U.S., the wiretapping case better known for Justice Brandeis' historical dissent. He was not always libertarian (see, e.g., him joining the dissent in Near v. Minnesota), but his economic "four horseman" philosophy was also not just a PTB protection racket.

Anyway, a unanimous 1920s case spoke of "the purpose of the courts well to uphold the right to privacy."

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