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In time for the fiftieth anniversary of Griswold v. Connecticut, The Connecticut Law Review will publish the product of a recent symposium on privacy. Some, including the author of Lawrence v. Texas (which quoted a separate dissent by Justice Stevens, not the privacy laden dissent of Justice Blackmun, for Bowers v. Hardwick), for a focus on "liberty" in general. The latter opinion opens, however, with what might be seen as a paean to "privacy," if that word is not confused with "secrecy" or the like:
Liberty protects the person from unwarranted government intrusions
into a dwelling or other private places. In our tradition the State is
not omnipresent in the home. And there are other spheres of our lives
and existence, outside the home, where the State should not be a
dominant presence. Freedom extends beyond spatial bounds. Liberty
presumes an autonomy of self that includes freedom of thought, belief,
expression, and certain intimate conduct. The instant case involves
liberty of the person both in its spatial and more transcendent
"Liberty" is an open-ended term. "Privacy" provides some clarity on specific interests. When we say "that is private," it can mean more than one thing (a choice is yours to make, e.g., or it can be a matter of intimacy of space or self). A somewhat obscure case that upheld regulations involving computerized record keeping of possibly sensitive drugs recognized that the term involved various interests:
The first is the right of the individual to be free in his
private affairs from governmental surveillance and intrusion. The second
is the right of an individual not to have his private affairs made
public by the government. The third is the right of an individual to be
free in action, thought, experience, and belief from governmental
Prof. Allen here provides six aspects of privacy. Some accounts of Griswold fail to adequately honor its roots, putting aside that its use of "penumbra" (see, e.g., Justice Holmes' dissenting opinion in Olmstead v. U.S.) was not unique. Douglas first firmly honored a "right to privacy" in a dissenting opinion [note how even the majority opinion at least opens up the possibility of "the privacy to which he is entitled in his own home," but however "complete his right of privacy may be at home," the case involved public transportation] over a decade before, arguing that the "liberty" protected by due process includes privacy, in fact that the "right to be let alone is indeed the beginning of all freedom." This shall we say structural claim was reaffirmed in his dissenting opinion, which was more expansive than his opinion for the court in Griswold, when the Supreme Court avoided deciding the merits of the question in Poe v. Ullman:
"Liberty" is a conception that sometimes gains content from the emanations of other specific guarantees or from experience with the requirements of a free society.
As with the majority opinion in Roe v. Wade largely only summarizing privacy rulings without doing more -- as seen as quite possible if we look at the two main concurrences -- it is unfortunate that Griswold did not spend more time to flesh out the particulars. We are left with later opinions basically summarily assuming things when some more legwork would be useful. The material is there. Thus, e.g., Griswold does little but raise the specter of usage barriers resulting in the violation of marital bedrooms. The overbreadth concern is valid but summarily expression. Cf. Poe:
If it can make this law, it can enforce it. And proof of its violation
necessarily involves an inquiry into the relations between man and wife.
That is an invasion of the privacy that is implicit in a free society.
Justice Harlan's dissenting opinion in this earlier contraceptives case is even more expansive and is a favorite source of quotation, including its discussion of the developing nature of what legal types called "substantive due process" over time. It too points to the problem with usage bans:
Precisely what is involved here is this: the State is asserting the
right to enforce its moral judgment by intruding upon the most intimate
details of the marital relation with the full power of the criminal law.
Potentially, this could allow the deployment of all the incidental
machinery of the criminal law, arrests, searches and seizures;
inevitably, it must mean at the very least the lodging of criminal
charges, a public trial, and testimony as to the corpus delicti. Nor
could any imaginable elaboration of presumptions, testimonial
privileges, or other safeguards, alleviate the necessity for testimony
as to the mode and manner of the married couples' sexual relations, or
at least the opportunity for the accused to make denial of the charges.
In sum, the statute allows the State to enquire into, prove and punish
married people for the private use of their marital intimacy.
Griswold's brevity has its charms, however, since it provides a more open-ended possibility, particularly when it no longer is limited to its marital aspects. The case is only specifically about marriage -- it is in that a relatively easy case -- but more broadly speaks of "privacies of life" and so forth. Nonetheless, there is a value in providing a somewhat careful analysis of the specifics of the case. Let's not pretend, however, that this is always done or that people in general really often care. The average person doesn't read court opinions, more concerned about results.
Still, details and careful analysis provides value, and well crafted opinions and legal thought involve such things. I do wish Roe and Griswold had more of that in some respects though both -- along with other privacy cases -- deserve more respect than some give them. For instance, a full third of Douglas' Poe dissent addresses the First Amendment aspects of the case, birth control advocacy and counseling for years a forbidden subject. The matter is not much covered in Griswold, except to the degree that the counselors here are found to have "standing to raise the constitutional rights of the married people with whom they had a professional relationship."*
Anyway, note the usage of the word "emanations" above. The specific example provided there is the right to association -- it is not expressly found in the Constitution, but it was assumed to be protected as a means to promote First Amendment principles. There is a right to "assembly," but that is not quite the same thing. "Assembly" suggests a temporary association of people at a rally or some such. An "association," with privacy of membership lists and so forth honored in some opinions, is a more complex animal. The matter arose in particular at this time in respect to investigations of certain groups, including as to the breadth of the right of Congress to investigate individuals. See, e.g., Watkins v. U.S., which spoke of "the individual and personal interest in privacy." Such concerns were raised as far back as the late 19th Century (opinion of Douglas) in a similar context.
Griswold shows how enumerated rights in effect have an implicit "necessary and proper" aspect akin to a fence protecting property or some amount of personal space around an individual. Sticking a finger two inches from one's face might work as "I'm not touching you" when an annoying sibling is involved, but not in law. As the opinion notes in respect to expression -- "right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought, and freedom to teach" -- is involved. Douglas cites a "penumbra" (type of shadow) of privacy being in place here. The same can be said regarding religious freedom -- the freedom of conscience is an aspect of privacy. That is, something personal, not "public" for the government and others to invade.
Thus, the opinion argues that there is an overall constitutional right to "privacy" that is necessary to truly protect First Amendment rights. The litigants spent more time defending an independent liberty interest in marriage (Justice White separately simply relied on such precedents), which required the state to more carefully defend the law here. But, the majority saw this as an appeal to disfavored substantive due process cases that "touch economic problems, business affairs, or social conditions" that should be usually left to the legislature. The specter of Lochner was raised. Privacy, a sort of back-up argument, provided a way around this problem. Justice White simply noted past cases showed that matters of family life were treated more carefully than economic matters. And, given the breadth of a term like "social" etc., which the dissent here felt covered just this case, line-drawing could be tricky. See, e.g., later cases that involved the sale of contraceptives or zoning issues (cf. Douglas majority opinion and dissent of Marshall).
The opinion continues down the list of the Bill of Rights, citing the Fourth Amendment, noting in a footnote that a key precedent here stated that "it is the invasion of his indefeasible right of personal security, personal liberty and private property" that is the "essence" of the protection, not merely some property interest (cf. Scalia's opinion inU.S. v. Jones). And, "privacy" was repeatedly noted as being at stake in various previous opinions of the Court here. The Fifth Amendment is mostly merely cited here along with the Third (cited by the dissents in Poe too) and Ninth (left for a concurrence to analyze) though cases like Murphy v. Waterfront Commission could have been cited and its statement that the Self-Incrimination Clause in part honors "our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life."
Justice Harlan in Poe covered this same ground, again with more meat -- when dealing with "liberty" under the Due Process Clause, mere property interests in a home weren't the only thing at issue. Family life was as well and again various opinions recognized this. Douglas here cited one -- Skinner -- though there is no suggestion there some "penumbra" of the Bill of Rights is involved. Harlan is correct to note that appeal to the enumerations of the BOR only takes us so far, since "liberty" means more, but Douglas does provide value in showing how "privacy" can be see as necessary to truly honor the rights specified. But, as spelled out by Justice Goldberg (with an assist from his law clerk, Stephen Breyer), merely because a right is not enumerated should not mean we should disparage it. And, again, Douglas didn't limit himself to specific enumerated rights previously either -- ironically, Griswold attempts to be more restraining.
The opinion as noted above also is somewhat strangely -- Douglas' slipshod nature and laziness in opinion writing is not too surprising overall -- slim in nature given he could have simply flesh things out based on what he wrote in Poe v. Ullman or even past off court writings. Two law articles were cited. [A later exploration of the issue by the author of one of them can be found here with various insights, such as the way rights develop -- see, e.g., FN8 and surrounding text.] For some reason, though he honored it elsewhere as did the Court itself for this purpose, he didn't cite Brandeis' famous Olmstead dissent defense of privacy. In Poe, he cited Warren and Brandeis' famous privacy article, to help show the development of the idea of a right to privacy. Again, the Harlan dissent in Poe shows more material was out there too among various cases honoring a right of privacy.**
Since it is a sensible principle not to go further than one needs to, showing how privacy can often be seen as necessary to uphold specific enumerated liberties such as speech, religion or the private areas specified by the Fourth Amendment has its value. Again, one might want him to do more to flesh out such discussion. But, especially if we look at the concurring opinions (covering five justices) and later opinions, the "liberty" here goes further. It also, citing an opinion Douglas includes, covers not only personal rights but a means to authorize governmental power:
All declare for liberty and proceed to disagree among themselves as to its true meaning. There is equal unanimity that opportunists, for private gain, cannot be permitted to arm themselves with an acceptable principle, such as that of a right to work, a privilege to engage in interstate commerce, or a free press, and proceed to use it as an iron standard to smooth their path by crushing the living rights of others to privacy and repose. This case calls for an adjustment of constitutional rights in the light of the particular living conditions of the time and place. Everyone cannot have his own way and each must yield something to the reasonable satisfaction of the needs of all.
At issue there was the regulation of door-to-door salesman, but the same can arise with "do not call" registries and the like. Privacy is an interest that can be protected against from non-governmental invasion as seen in tort law, which in large part is where the "right to privacy" first developed. A tricky case here would be libel law -- in Time v. Hill, e.g., the liberals split, the dissent arguing that it was proper in that case to regulate the press in such a way to protect the privacy of the family involved. Stricter rules are in place to prove libels when public figures or matters of public concern are involved. Regulation of sound trucks and the like already by that time also recognized a right to privacy that justified regulations even with speech.
Douglas was more correct the first time -- liberty at times can be defined by specific provisions but also other ways. The current same sex marriage debate is in part based on the freedom to marry, something that is not simply an emanation of the First Amendment or something, though the rights there clearly factor in here. Thus, you can -- as the usual account says Douglas did before expanding his Griswold opinion a bit (given its brevity, hard to imagine how shorter it was originally) -- see this as a matter of intimate association arising out of the First Amendment. But, marriage was seen as time honored "liberty" (see, e.g., Meyer v. Nebraska in the 1920s) that went beyond that. All the same, even here, specific guarantees highlight particular concerns (e.g., religious upbringing of children).
I look forward to reading the symposium's results -- there is so much here, such richness of material to cover and contemplate. After all, the Heller opinion even suggested the right to keep and bear arms is particularly strong in the home and to defend oneself. Douglas was no fan (dissenting opinion) of this view of the right, but the Second Amendment could have been included -- see, e.g., the dissenting opinion in this ruling.
* Douglas does return to the matter in a later case, which he separately would have also treated as a First Amendment case though the majority treated it as an equal protection matter regarding birth control and the unmarried. The case involved a birth control advocate handing out contraceptives at a speech, which raises interesting questions regarding speech and action that the majority ignored.
The majority also is an example of use of precedent to expand privacy rights -- birth control is no longer only for the married or the bedroom -- with a few sentences and quotations. It is somewhat striking how few times an in depth discussion is provided with that largely left to concurring and dissenting opinions. Again, to avoid assumptions, not saying this is unique necessarily in this context, but as an observer, it is still a bit striking and rather unfortunate.
** None of the opinions in the two main contraceptive cases cited here did much to talk about the Third Amendment, mostly cited as an example of where privacy is explicitly honored in the Constitution. Douglas in Poe deems it obvious if the Constitution is going to honor privacy in that limited fashion, it must "also bar the police from investigating the intimacies of the marriage relation" without suggesting perhaps the BOR simply is concerned with particular violations of privacy here.
It would be easy, if desired, to discuss the background history here and show how the amendment did have a privacy aspect, along with a concern with the separation of the military from the civil power. Anyway, Douglas' assumption aside, he along with Harlan felt the protection of "liberty" went beyond the enumerated restraints of the BOR anyhow. This is as it should be, especially with the Ninth Amendment's reminder.