Various bad things occur, and books don't "take," but a few things provide a certain degree of security, and a few Supreme Court cases provide that for me. It's interesting and pleasant time wasters. So, I'm going to cover some standard ground yet again. It will involve some privacy cases.
Griswold v. Connecticut is generally recognized as the Supreme Court case that first held that there was a constitutional right of privacy. Many still reference such a right though the Supreme Court later focused more on a broad "liberty" that "presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." As I have spoken of in the past, however, "privacy" does touch upon the sort of interests that many deem at issue here. Not "secrecy" alone, but some realm of interests that are private to you personally, such as who you marry or some such. And, this doesn't mean absolute autonomy, but a higher degree of it.
[The "liberty" approach is appropriate since there is a mixture of things involved here and various cases do recognize specific rights such as marriage or choices over child-rearing, which need not fit into a wider "privacy" argument necessarily. A general principle is that many things do not have one "point," and in the area of constitutional law, there is often overlapping principles. Doctrinal lines are at times artificially neat.]
Griswold is often criticized but the opinion cited various cases that protected some zone of "privacy" that was understood to have constitutional significance. Fourth Amendment cases in particular spoke of some right to "privacy," particularly of the home. And, particularly when dealing with states, the means to protect the rights here was the "liberty" component of due process in the Fourteenth Amendment. Finally, as that opinion notes, the Fourth Amendment in certain opinions was said to have wide reach. It ultimately protected private life as a whole.
One case referenced to show that interests of "privacy and repose" were respected was Breard v. Alexandria (1951), which upheld a law against door to door solicitation of magazines and such. Two justices opposed it on First Amendment grounds, while a third (with one agreeing) saw it as a matter of interstate commerce. The majority cited a major free speech advocate to show that an earlier case (by a divided Court) striking down a law barring door to door canvassing (there involving religious pamphlets, so also raising free exercise concerns) was at best a borderline case. In each case, the privacy of the home was flagged. A taste:
These cases are somewhat different in that they recognize a state interest to protect privacy, but they are informative regarding the type of rights the people have. The cases show that even at times when it might limit the rights of communication to some degree (solicitation of magazines etc.), there is a zone of privacy that can be protected. If so, it is not too surprising that there is also a right of privacy that protects people from governmental power. A person in the privacy of their own home has the power to keep out that solicitor of magazines as much as the government as they do private things. At least, intrusion needs to be carefully justified.
The Bill of Rights lists various protections but "the protection of the Bill of Rights goes beyond the specific guarantees to protect from [governmental] abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful." It is somewhat unfortunate that is not how things were phrased instead of the whole "penumbra" concept that has received some tedious ridicule. Again, back in the late 19th Century, the Supreme Court recognized the Fourth Amendment is not just there to provide specific procedural safeguards. They are there to safeguard wider rights. Ditto the right against self-incrimination and the right of public trials in criminal cases.
[See also, Justice Douglas' concurring opinion in Doe v. Bolton, the companion case to the main abortion case, which references various early congressional investigation cases that recognizes an interest of privacy from congressional power there. His Poe v. Ullman dissent also adds further argument on how privacy is a necessary aspect of liberty, including private associations such as families, religious groups and so forth.]
The specific rights and language of the Constitution in general is of some importance. I touched upon this in my comments on impeachment* in answer to those who reference some open-ended power to impeach as if specific grounds are not cited. But, the language is only of limited reach in that respect, especially when we are talking about the open-ended nature of much of it (what is free speech?). Justice Black dissented in the contraceptives case in part because of his long campaign against treating specific rights as a sort of "reasonableness" test that he thought was a threat to liberty (see Red Scare) and giving too much power to the courts. He had a point, but especially with some of the open-ended language as well as the Ninth Amendment, only so much.
The specific text historically was understood to have a wide reach, including an understanding that there is a broad liberty over making decisions involving marriage, child-rearing and privacy at home. This includes a greater right to use force in the home and in cases of self-defense of one's person even in public. What this entails respecting carrying weapons in public places is a more complex question, but it is factors into the realm of things. And, the Supreme Court (term begins tomorrow) will decide such a matter in an upcoming Second Amendment case.
---
* Here is a good summary of where we are now. Things seem to be ratcheting up and getting pretty serious. What it will amount to is still an open question, but it is damn important.
Griswold v. Connecticut is generally recognized as the Supreme Court case that first held that there was a constitutional right of privacy. Many still reference such a right though the Supreme Court later focused more on a broad "liberty" that "presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." As I have spoken of in the past, however, "privacy" does touch upon the sort of interests that many deem at issue here. Not "secrecy" alone, but some realm of interests that are private to you personally, such as who you marry or some such. And, this doesn't mean absolute autonomy, but a higher degree of it.
[The "liberty" approach is appropriate since there is a mixture of things involved here and various cases do recognize specific rights such as marriage or choices over child-rearing, which need not fit into a wider "privacy" argument necessarily. A general principle is that many things do not have one "point," and in the area of constitutional law, there is often overlapping principles. Doctrinal lines are at times artificially neat.]
Griswold is often criticized but the opinion cited various cases that protected some zone of "privacy" that was understood to have constitutional significance. Fourth Amendment cases in particular spoke of some right to "privacy," particularly of the home. And, particularly when dealing with states, the means to protect the rights here was the "liberty" component of due process in the Fourteenth Amendment. Finally, as that opinion notes, the Fourth Amendment in certain opinions was said to have wide reach. It ultimately protected private life as a whole.
One case referenced to show that interests of "privacy and repose" were respected was Breard v. Alexandria (1951), which upheld a law against door to door solicitation of magazines and such. Two justices opposed it on First Amendment grounds, while a third (with one agreeing) saw it as a matter of interstate commerce. The majority cited a major free speech advocate to show that an earlier case (by a divided Court) striking down a law barring door to door canvassing (there involving religious pamphlets, so also raising free exercise concerns) was at best a borderline case. In each case, the privacy of the home was flagged. A taste:
The issue brings into collision the rights of the hospitable housewife, peering on Monday morning around her chained door with those of Mr. Breard's courteous, well trained but possibly persistent solicitor, offering a bargain on culture and information through a joint subscription to the Saturday Evening Post, Pic and Today's Woman. Behind the housewife are many housewives and homeowners in the towns where Green River ordinances offer their aid.In the earlier case, three liberal justices specifically recognized the "privacy and safety of the home" and the home is a man's castle principle. But, the majority in that case held that the home owner themselves can handle keeping unwanted people out, presumably by means of signs and so forth. The case was decided during WWII and a reference to people sleeping because of late shifts underlines the privacy interests involved. Years later, a law allowing people to choose to keep out certain types of mail (see also don't call lists) was uphold to protect the privacy of the home too. This was after Griswold and its author joined the opinion.
These cases are somewhat different in that they recognize a state interest to protect privacy, but they are informative regarding the type of rights the people have. The cases show that even at times when it might limit the rights of communication to some degree (solicitation of magazines etc.), there is a zone of privacy that can be protected. If so, it is not too surprising that there is also a right of privacy that protects people from governmental power. A person in the privacy of their own home has the power to keep out that solicitor of magazines as much as the government as they do private things. At least, intrusion needs to be carefully justified.
The Bill of Rights lists various protections but "the protection of the Bill of Rights goes beyond the specific guarantees to protect from [governmental] abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful." It is somewhat unfortunate that is not how things were phrased instead of the whole "penumbra" concept that has received some tedious ridicule. Again, back in the late 19th Century, the Supreme Court recognized the Fourth Amendment is not just there to provide specific procedural safeguards. They are there to safeguard wider rights. Ditto the right against self-incrimination and the right of public trials in criminal cases.
[See also, Justice Douglas' concurring opinion in Doe v. Bolton, the companion case to the main abortion case, which references various early congressional investigation cases that recognizes an interest of privacy from congressional power there. His Poe v. Ullman dissent also adds further argument on how privacy is a necessary aspect of liberty, including private associations such as families, religious groups and so forth.]
The specific rights and language of the Constitution in general is of some importance. I touched upon this in my comments on impeachment* in answer to those who reference some open-ended power to impeach as if specific grounds are not cited. But, the language is only of limited reach in that respect, especially when we are talking about the open-ended nature of much of it (what is free speech?). Justice Black dissented in the contraceptives case in part because of his long campaign against treating specific rights as a sort of "reasonableness" test that he thought was a threat to liberty (see Red Scare) and giving too much power to the courts. He had a point, but especially with some of the open-ended language as well as the Ninth Amendment, only so much.
The specific text historically was understood to have a wide reach, including an understanding that there is a broad liberty over making decisions involving marriage, child-rearing and privacy at home. This includes a greater right to use force in the home and in cases of self-defense of one's person even in public. What this entails respecting carrying weapons in public places is a more complex question, but it is factors into the realm of things. And, the Supreme Court (term begins tomorrow) will decide such a matter in an upcoming Second Amendment case.
---
* Here is a good summary of where we are now. Things seem to be ratcheting up and getting pretty serious. What it will amount to is still an open question, but it is damn important.
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