Privacy Again: Poe

A good place to begin to understand a constitutional right of privacy are the dissenting opinions in Poe v. Ullman, Douglas referencing his own dissent in Griswold and the core of Harlan's dissent in effect becoming the law of the land (shades of Brandeis' dissent in Olmstead; see, e.g., Planned Parenthood v. Casey).* 

Over the years, there were multiple cases that reached the Supreme Court addressing contraceptives, but until Griswold, the Court basically avoided deciding the core constitutional claim.  Poe was of that character -- it held that there was not really a credible case of prosecution though the law did prevent openings of public clinics and during oral argument reference to actual prosecutions were cited. But, it was 5-4, with two justices specifically addressing the merits. Those who find Griswold as too thin (though I think it is not as thin as some say), those dissents are useful.

I will not expansively comment on this yet again (see past comments) but will note a few things here. First, the Justice Harlan dissent in particular defends substantive due process -- a constitutional liberty beyond specific enumerated rights.  And, the application is a "living thing" that is not limited by appeal to mere text or original understanding or whatever but traditional case by case judicial process that respects history and shows modesty.  Partially since it is a dissent, it also is fascinating reading with lots of quotable portions such as:

The secular state is not an examiner of consciences: it must operate in the realm of behavior, of overt actions, and where it does so operate, not only the underlying, moral purpose of its operations, but also the choice of means becomes relevant to any Constitutional judgment on what is done.

The "choice of means" also reflects the limited range of the opinion; it is specifically concerned about private use of contraceptives by married couples.  Marriage specifically a "liberty" respected over the years.  Nonetheless, it also provides a broad examination, in various contexts, the protection of privacy as a whole. Viewing things from a substantive due process lens, specific text such as the Fourth Amendment was not the only concern. The wider principles, such as protection of the privacy of family life, was also respected.  Again, history backed this up.

Justice Douglas infamously relied on "penumbras" and "emanations" in his later opinion but this time around spoke of  constitutional liberty (per the Due Process Clause) obtaining "content from the emanations of other specific guarantees or from experience with the requirements of a free society."  So, the two justices' overall approaches overlapped. He also added some more philosophical discussion regarding the value of privacy to our constitutional republic, including in comparison to a regime lacking it.  Privacy here like federalism is a structural protection not only tied to specific provisions. Finally, again this deserved more attention in later cases, he had a section tying the dispute to the First Amendment since a core aspect of the matter here was clinics advising people regarding birth control.

To jump ahead, Whalen v. Roe also is helpful, though the case regarding regulating drug prescriptions is generally not well known.  The charming thing about this unanimous mid-1970s opinion that upheld the statute is that it summarized the principles of the privacy cases.  It clarified the two threads (though others crafted more categories**): "One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions."  Privacy is not merely secrecy. When someone tries to control one's life, "that is a private matter" is a common refrain even if it is not a secret.  Such as who one marries or what church one chooses.

[The proper lines in regulating religious liberty comes to mind here: something tied to belief as such is the core, a private matter, while public matters can be regulated more. A physical church, e.g., is clearly something that deserves some respect as a 1A matter but even that is allowed to be regulated in various respects such as to prevent public nuisances. Note that beliefs do affect third parties, for good and bad.  Again, "private" and "public" are not simplistic terms but require some degree of nuance.]

Finally, note Justice Stewart's pushback [no, that's a word, spellcheck] to Justice Brennan's concurrence. He argues that Brennan advanced a too open-ended view but recognizes that the Court has protected certain zones of privacy (more than he supported at times).  He helpfully cites the zone honored by the provision against forcing people to testify against oneself in criminal trials: "reflects the Constitution's concern for the right of each individual to a private enclave where he may lead a private life."  This is not absolute (especially if someone is given immunity), but (see, e.g., Douglas' concurrence in Doe v. Bolton, the companion to Roe) was also applied in non-criminal contexts such as limits on congressional testimony.

The Fifth Amendment provision is an example of specific enumeration of what was seen as the most concerning threat to broader liberties. It is not a  reason to merely protect just that, but provides a means to help flesh out other protections. As noted in past discussions, this also is an assist when setting government policy such as what sort of regulations are appropriate to protect personal privacy.***  This also is reflected in Harlan's earlier dissent, which guides constitutional law today.

Finally, reading First, the Justice O'Connor biography, there was a good summary of her limited view of judicial power.  She wished to decide the case at hand, but provide as much discretion to the government as possible, providing a sort of back and forth communication between the courts and other branches. The particular means might be problematic but the goals might be acceptable.  The moderate sense of judicial review is sensible as well as realistic. It provides an answer to claims of "judicial supremacy." To cite the passage in question:

Breyer is the "O'Connor" justice on today's Court.

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* Olmstead was a 1920s case that upheld electronic eavesdropping with multiple interesting dissents though Justice Brandeis' paean to privacy is the one most remembered.  It was eventually overruled.  Casey was the 1990s case that upheld the core of Roe v. Wade (abortion) though allowed for more regulations. A good aspect of the main opinion is that it provided more analysis to the constitutional liberty at issue while Roe was in large part a matter of setting up doctrine while summarizing past cases to in effect assume as granted said liberty.  I think that was misguided.


** The opinion itself cited one three part inquiry:

The concept of a constitutional right of privacy still remains largely undefined. There are at least three facets that have been partially revealed, but their form and shape remain to be fully ascertained. 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 compulsion.

Privacy torts also have various components.

***  One example of such privacy enhancing legislation that was held to meet First Amendment scrutiny was cited in the O'Connor bio. It involves a limit on direct mail solicitation and the opinion cites other cases where privacy interests arose. 

For instance, here Justice Black (a First Amendment absolutist) wrote a strong concurrence (joined by Justice Douglas) that honors the privacy of the home. Black dissented in Griswold, but this shows how respect for the importance of privacy would still have constitutional relevance.  And, relevance as a whole.