Finding Privacy in the Constitution

In Europe, the right to privacy and freedom of expression carry (in theory) equal weight under the European Convention on Human Rights. Article 8 guarantees for everyone “the right to respect for his private and family life, his home and his correspondence”. Article 10 provides everyone “has the right to freedom of expression”. In contrast, the words “private” or “privacy” do not appear in either the Constitution or the Bill of Rights. But the search for privacy does not end here. Privacy needs to be protected by the Constitution, and this paper argues, is.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” So reads an oft forgotten but in my opinion, critical Amendment. It was discussed at length by Justice Goldberg’s concurrence in Griswold v. Connecticut, 381 U.S 479 (1965). The Ninth Amendment, he explained, was “proffered to quiet fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected” (at 1684). Yet, we systematically hear that there is no Constitutional right to privacy in the United States because “privacy” is not mentioned therein. This is an argument I do not understand. In the words of Justice Goldberg, “To hold that a right so basic and fundamental and so deeply rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever” (at 1685).

Is privacy is a fundamental right? A number of Supreme Court justices think it is. Justice Brandeis, in his famous dissent in Olmstead v. United States, 277 U.S. 438 (1928), argued that “[The makers of our Constitution] sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.” (at 478-79). Justice Marshall, delivering the opinion of the Court in Stanley v. Georgia, 89 S.Ct. 1243(1969), stated unequivocally that “also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy” (at 1248). Justice Marshall summered up the right being asserted by the appellant as follows: “He is asserting the right to read or observe what he pleases – the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library” (at 565). Are we not asserting the same right today? Do we a right to observe what we please on the internet without the inquiry of either the State or social media and tech giants into our new “library”? Are the contents of our minds now shelves these parties are free to peruse? For those who will discard the above decisions as outdated, one need only turn to Justice Breyer’s concurrence in Bartnicki v. Vopper, 532 U.S. 514 (2001), who in no unclear terms stated that “the Constitution permits legislatures to respond flexibly to the challenges new technology may pose the individual’s interest in basic personal privacy” (at 541).

These decisions, often rendered in dissents and concurrences, are nevertheless a compelling basis for holding that privacy is a fundamental right. Once that premise is accepted, and the Ninth Amendment is not forgotten, it follows that privacy is, under the Constitution, a right retained by the people of the United States, on par with other rights explicitly enumerated in the Constitution.

“Congress shall make no law… abridging the freedom of speech, or of the press”. As discussed in our seminar, the First Amendment is not about rights, but rather presents a fundamental limitation on the power of legislation. An entire area of legislation was marked out as being beyond the reach of Congress. The First Amendment uses “speech”, a broad word, which, somewhat ironically, can be used to protect privacy. The “press”, as we discussed in class, was used originally as a noun by the drafters of the First Amendment. It referred to a device, the printing press and the legislature’s inability to limit its use with licenses or by any other means. It is now commonly understood much more broadly as protecting the whole industry of “the press”, the institution we trust to “report”. If our interpretation of “the press” has gone far beyond its original meaning, why could the same not be true of “speech”? After all, our freedom of speech is only truly protected if we are free to speak both what we please but also free to elect to whom we direct that speech. The moment our speech is accessed by a third unintended party (such as phone companies), and such monitoring is sanctioned by Congress, our freedom of speech is jeopardized. Viewed this way, the First Amendment protects both the freedom and privacy of our speech.

Great literature has been produced on the need to translate and interpret our Constitution to protect privacy in the digital era. I wonder whether the need for translation has been, perhaps, overstated. True, the Constitution does not spell out privacy rights as Article 8 in Europe does. It does, however, at the very least, indirectly protect privacy as a fundamental right under the Ninth Amendment. If the Fourth Amendment is a tragedy, the First Amendment a comedy, the Ninth Amendment may be the twist in the Constitutional story by which privacy makes a much-needed comeback.