Privacy and Due Process: Some Old Cases

A blog noted the anniversary of Gitlow v. N.Y., which upheld a prosecution for advocating anarchy with Holmes (and Brandeis) dissenting. 

The 1925 opinion is remembered for granting certain First Amendment rights are applied to the states:

For present purposes we may and do assume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.

In hindsight, this was the beginning of the modern incorporation doctrine, which is now nearly complete (the Third Amendment was cited in dicta; the grand jury and Seventh Amendment provisions have not been incorporated). The First Amendment (including later religious liberty) led the way. 

A minority opinion arose after the ratification of the Fourteenth Amendment that total incorporation of the Bill of Rights was appropriate. Justice John Harlan was the leading advocate on the Supreme Court.

He wrote the opinion of the Court in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897). The opinion held that just compensation when the government took property for public use was necessary for due process of law. Due process was not merely a right to fair procedure:

In determining what is due process of law regard must be had to substance, not to form. This court, referring to the Fourteenth Amendment, has said: "Can a State make anything due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the States is of no avail, or has no application where the invasion of private rights is effected under the forms of state legislation."

Just compensation was necessary to protect property rights. Property rights were necessary to secure a republican form of government:

Due protection of the rights of property has been regarded as a vital principle of republican institutions. 

The Supreme Court has held the Guarantee Clause is not justiciable. Nonetheless, republican values could be secured by enforcing other provisions. The opinion cited previous declaration of open-ended principle:

[T]here were private rights in every free government beyond the control of the State, and that a government, by whatever name it was called, under which the property of citizens was at the absolute disposition and unlimited control of any depository of power, was, after all, but a despotism, said: "The theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers. There are limitations on such power, which grow out of the essential nature of all free governments, implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name"

Such open-ended boilerplate with reference to "private rights" might have some implication to privacy rights. The traditional security of private property gave people control and privacy on their own propety. 

The Supreme Court regularly, however, rejected attempts to incorporate other rights. Twining v. N.J. (self-incrimination) was a 1908 case leaving open the possibility that other rights enumerated in the Bill of Rights fell under "due process of law." Not because of incorporation:

If this is so, it is not because those rights are enumerated in the first eight Amendment, but because they are of such a nature that they are included in the conception of due process of law. 

Due process of law developed over time:

This court has always declined to give a comprehensive definition of it, and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise. 

Traditional rights provide clear evidence of what is required. Nonetheless, the past is not a straightjacket. Doing otherwise "would be to deny every quality of the law but its age, and to render it incapable of progress or improvement." A "living constitutonalism" approach is not something invented by modern liberals. The case cites a 1880s precedent.

Twining refers back to a 1819 case:

The words 'due process of law' 'were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.' Bank of Columbia v. Okely.

The word "arbitrary" is an open-ended principle that can include volumes. What are "private rights"? The term "distributive justice" also is curious. The term appears to reference an evenhand supply of goods and services. Nonetheless, the term is somewhat vague and open-ended.

Twining referenced the dissenting views about incorporation, noting they were respectable. After all, Harlan was respectable, and he was still around. Nonetheless, the precedent against it was thirty-five years and consistent. The one case about just compensation somewhat an exception.

Incorporation later became offical policy. After the First Amendment, most of the criminal justice amendments were incorporated by the end of the 1960s. The Second Amendment came years later. The Supreme Court around five years ago made clear the Fine Clause is covered too. 

Meanwhile, the true meaning of due process of law is open-ended and still developing. The Dobbs decision disrespected "private rights." Arbitrary exercise of government power continues.