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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Sunday, June 12, 2016

Griswold Turns 51

Since high school -- mind you I went to a Catholic one -- had a interest in Roe v. Wade. The Webster case was decided around that time and wrote in my illegible scrawl about the case. The diverse issues (privacy, gender, religion, medicine, history, constitutional law, etc.) involved was apparent to me even then. A few years later, it was again of central importance, there a belief that there was five justices present to overrule.

But, in 1991, the Casey ruling did not do that. Instead, it firmly held that there are broad "liberty" rights, included unenumerated ones.  Clinton (here we go again?) was elected and a sixth vote was available though among the Roe dissenters, White joined to some degree the idea of a general liberty interest as seen by his concurrence in the 1965 Griswold decision handed down in around this time of the year. I have talked about this case a lot here and elsewhere for quite some time as this 2006 blog post shows. As noted there, the idea of "private rights" that people retained is not something that merely was found to exist sometime during the Johnson Administration. The Federalist Papers made a couple references. Such things were directly the concern of multiple amendments of the Bill of Rights. Slavery was wrong in part because one's private life was in control of others.

The term "private rights" underline the breadth of the term "privacy," which is not merely a matter of secrecy.  Your family life was "private" but others might know about it. Whalen v. Roe, e.g., discusses the various aspects of privacy. Professor Anita Allen once spoke of four, later expanding it to at least six.  Various people favor other terms but repeatedly things like "intimate" or "personal" arise that return us to the word "privacy." And, to the degree it matters,"privacy" has a long history. No word is absolute any more than any right tends to be. This one seems suitable in my personal opinion but the right not label is most important.

A seminal moment in the history of the right of privacy in this country, if perhaps only in hindsight, is the 1890 law review co-written by Brandeis. The fact the two authors weren't writing in a vacuum is seen by the Boyd v. U.S. case of that time that also argued that the Fourth Amendment protected a broad right of privacy. The Supreme Court protected this with an exclusionary rule as applied to the federal government, again that rule is over a hundred years old (see the Weeks case). Justice Douglas in his concurrence in Doe v. Bolton (along with Poe v.Ullman, his separate opinions in some ways better than his opinion for the Court in Griswold) also references from that era of the concern for privacy being invaded by legislative investigations.  One opinion connected this to Boyd showing the general right to privacy involved:
We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of congress. Neither branch of the legislative department, still less any merely administrative body, established by congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168, 190. We said in Boyd v. U. S., 116 U. S. 616, 630, 6 Sup. Ct. 524,—and it cannot be too often repeated,—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of his life. As said by Mr. Justice Field in Re Pacific Ry. Commission, 32 Fed. 241, 250, 'of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.'
The era was also when "substantive due process" came into its own though research has determined that the general idea that there are general limits to legislative action were in some form understood from our beginnings. Even someone who thought the idea absurd like John Hart Ely Jr. made some reference (as I recall reading his famous work) to "legislative due process," some concept that the legislative process can be arbitrary and illegitimate. He also accepted some idea of unenumerated rights, which is basically in practice just getting to the same place by different means.

[Note: To toss it in, one such means -- used by Justice Thomas to cover some of this ground -- is to determine these things are privileges and/or (still don't know why the different clauses use a different conjunction) immunities of citizenship. Non-citizens would still be protected by equal protection and other means.]

Justice Douglas in Griswold spoke of "penumbras" and "emanations" of enumerated rights, but elsewhere also spoke of rights generally necessary for freedom. Coming from a tradition that rejected "substantive due process" as basically a matter of conservative economic rights, he was wary of the term. In Doe, he spoke of it as a "vessel to be filled with one's personal choices of values, whether drawn from the laissez faire school, from the socialistic school, or from the technocrats." Or, to quote Justice Black, "unreasonable, that is, unwise or incompatible with some particular economic or social philosophy."

But, liberals -- influenced by personal choices of values -- overall continued (use the term advisedly) to accept there were certain personal rights essential to liberty, even if they had to be protected via constitutional review. A broad protection of explicit enumerated protections took you far.  Justice Black was strongly against going further but managed to go further than many as is (e.g., "one person, one vote") while noting going far enough at times (e.g., electronic clairvoyance or symbolic speech). Saying the rights are "associated" with certain enumerated rights -- as Douglas once summarized Griswold -- is telling. He basically was right the first time:
"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.
Looking toward enumerated rights is appropriate -- the rights in the first ten amendments were chosen not because they were the only ones we had (see Ninth) but because of their basic importance to the people of the time. Certain rights were just so fundamental that a special listing was deemed necessary. And, overall, the rights retain valuable.  Furthermore, as each justice in the famous Olmstead opinion (best known for Brandeis' new constitutional phrasing of his privacy article) recognized, they deserve to be treated liberally. As Justice Holmes noted: the "words import a policy that goes beyond them." Thus, the right to privacy.*

All the same, Justice Douglas was right to speak of the second half of his "Poe" test, noting various examples found in case law. Back in 1920, in a dissent, Justice Brandeis spoke of the "privacy and freedom of the home." He joined without comment Meyer v. Nebraska, which included marriage and family life protected by the "liberty" of the Due Process Clause.  There were various rights -- travel is another -- that "experience with the requirements of a free society" were determined to be fundamental. As I covered in the past, the Ninth Amendment also serves this purpose.

Justice Douglas also was correct to see the right to privacy as basically a structural protection, something that was necessary protect freedom in general -- a zone of privacy to make decisions and thrive in  a free society:
If liberty is to flourish, government should never be allowed to force people to listen to any radio program. The right of privacy should include the right to pick and choose from competing entertainments, competing propaganda, competing political philosophies. If people are let alone in those choices, the right of privacy will pay dividends in character and integrity. The strength of our system is in the dignity, the resourcefulness, and the independence of our people. Our confidence is in their ability as individuals to make the wisest choice. That system cannot flourish if regimentation takes hold. The right of privacy, today violated, is a powerful deterrent to any one who would control men's minds.
Privacy is not just about making choices, but having intimate zones and associations. So all three threads are important: explicit text is a type of "signpost" that can take you further, helped by traditional rights (whose meaning develop) and underlining principles the flesh out whys.  And, other rights, including equality, procedural due process and so forth help as well since constitutional rights and powers tend not to be isolated from each other.  And, so it continues.

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* Griswold cites the First, Third, Fourth, Fifth and Ninth Amendments. The Third is a bit of a joker, but has a rich history as a means to protect privacy. The opinion could have also expanded how the Self-Incrimination Clause protects "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."

Douglas was not big on the individual right to bear arms, but the Second Amendment also has a privacy aspect. The dissent in a lower court case that upheld a local handgun ban noted "the fundamental right to privacy and the fundamental right to defend the home against unlawful intrusion within the parameters of the criminal law." And, Heller held that the 2A was at its core in the home. Well, perhaps personal defense is?  Castle doctrine etc.

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