A General Right to Privacy? Probably Not

-- By SamuelDostart - 16 Feb 2013

The class discussion about how the 4th Amendment went astray led me to wonder what it would take to put it or our privacy rights back on track.

Lessons from the Past: Brown v. Board of Education

To me, the most obvious relatively recent example of the Supreme Court changing its stance on an integral Constitutional issue with profound societal implications was Brown v Board of Education.

As a brief recap, Plessy v Ferguson, an 1896 case, permitted state-sponsored segregation on the basis of race as long as they were “separate but equal.” The Supreme Court ruled in the 1954 case Brown v Board of Education that “separate but equal is inherently unequal,” requiring desegregation.

I believe there are at least two relevant lessons for 21st century privacy rights learned from the context in which the Brown v. Board decision was rendered. First, at the time of Brown v. Board, the Civil Rights Movement was a recognized component of mainstream U.S. society.

In 1954? In the South? What historical materials did you consult that brought you to this conclusion?

Had it not been, I do not believe the court would have acted.

This reduces "the lessons of history" to what you do or do not believe.

A second lesson I take from Brown v Board comes from the inner workings of how the Supreme Court reached its decision. 8 of the 9 judges personally believed segregation was wrong, and Justice Warren famously argued that the court had to overrule Plessy to maintain its legitimacy as an institution of liberty. This suggests that Supreme Court Justices will be much more likely to pass a landmark case with widespread social implications and high implementation costs if they think that much of society agrees, and they too personally believe doing so is right.

How a single instance of anything could have brought forth a general principle about anything I don't know. The value of history in guiding social action lies in the unbiased comparison of large numbers of instances, in order to isolate durable practical principles from the inexhaustible influence of contingency in human affairs. Reasoning historically from single instances is is inherently invalid.

Applying Brown's Lessons to 21st Century Privacy

Public Support for General Privacy Rights

Unfortunately, most people in today’s society tend to not care or even be aware of the extent to which their personal information is data mined or passed on private parties. There is no mainstream "Privacy Rights" movement -- the closest to a public head, Julian Assange, is sadly not a common topic of conversation. The most common public discussion over privacy rights is frustration over Facebook's ever-changing privacy settings.

Two quotes come to mind:

“The greatest trick the devil ever played was convincing the world that he did not exist.” - Charles Baudelaire

“All that is necessary for the triumph of evil is that good men do nothing.” - Edmond Burke

But even if the quotes come to mind, it would be good to check them, in fact to link to them, and also to check the spelling of the authors' names. In the meantime, though pithy, they are substantively unhelpful. Baudelaire is at best putting the obvious unobviously. Burke is not such a fool as you would have us take him: this is rhetoric rather than analysis. Every activist, reformer, and dissenter knows the value of this tune, but no one steers by it, because it's irrelevant. Overcoming "collective action" problems is one high-falutin' way to say "making things happen in society using words."

Current Supreme Court Justices' Views of a General Right to Privacy

It is also not clear whether a majority of the current Justices believe in a general right to privacy. The only outspoken Justice, Justice Scalia, believes there is no generalized right to privacy.

Are you sure you are using the word "privacy" the same way?

Testing Justice Scalia’s thoughts on the subject, Fordham law professor Joel Reidenberg had his class procure a dossier on Justice Scalia, causing Scalia to tersely respond:

"I stand by my remark... that it is silly to think that every single datum about my life is private.

It is not a rare phenomenon that what is legal may also be quite irresponsible... What can be said often should not be said. Prof. Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any."

Justice Scalia';s remark suggests that he was not aware of the extent to which data mining occurs, and indicates the at least one of the current Justices does not understand the importance of privacy to maintaining a free society in the 21st Century. However, the Supreme Court has previously recognized a limited right to privacy.

I don't understand your comment. He might well understand what is done by advertisers and still choose this rhetorical posture in responding to Professor Reidenberg. He might not understand at the moment something you and I consider to be important to an eventual decision he might make while being perfectly capable of learning it through the briefing at the appropriate moment. Forecasting his future judicial behavior on the basis of a single extrajudicial foray on his part seems impossible to me, and he's a person I actually know, however slightly.

But my bigger problem here is I don't know what the point of the essay is. Are we predicting, apparently negatively, a particular future Supreme Court decision on the "general right of privacy"? If so, why? Why is that an important speculation? What is this "general right of privacy" we're supposed to be talking about not having?

A Brief History of the Right to Privacy

In the 1965 7-2 decision Griswold v Connecticut, Justice Douglas wrote that a right to privacy can be found in the “penumbras” and “emanations” of other Constitutional protections. Justice Harlan and White argued in a concurring opinion that there is a right to privacy in the Due Process Clause of the 14th Amendment. The right to privacy was not unanimously believed in, with two Justices dissenting. In the early 70s another 7-2 decision, Roe v Wade, found that a right to privacy existed and mentioned that it may be based in the Fourteenth Amendment or the Ninth Amendment.

However, in the 1977 case Whalen v. Roe the Supreme Court held that NY State was permitted to keep private information about its citizens’ health records to assist it in policing drug violations. The court held this was a valid exercise of NY’s police powers to protect the health of its citizens.

What kind of brief history is this? Why not, if you're going to be brief, present the reader with the main interpretations of the dominant historical researchers in the field? Surely you would start, here, with David Garrow's [[http://pegasus.law.columbia.edu/search/a?searchtype=t&searcharg=liberty+and+sexuality][Liberty andSexuality: the Right to Privacy and the Making of Roe v. Wade]].

Given the lack of clear public or judicial support for privacy law reform, judicial reform concerning privacy law is unrealistic.

What does this mean? How is this "given" established by what we just read? Does this mean that judges won't change they law if they don't want to?

Further, courts typically look for a balancing of equities, and due to fear mongering by the government, this may not be an open-shut issue. The Military Industrial Complex, citing terrorists with nuclear bombs, bio-terror weapons, and keyboards, will continue to urge the Supreme Court to keep any right to privacy so small as to be trivial.

How can smallness or largeness be the way to describe the inquiry? "Privacy" as sexual and reproductive autonomy has whatever basis in the Constitution it has, and whatever may be said about that it surely is not the same thing that would be said about "privacy" in relation to government search, surveillance or seizure of "papers and effects." Confusion about the meaning of the word "privacy" is imposing incoherence on your argument.

A General Right to Privacy in the Second Amendment?

I believe an adequately strong general right to privacy can be found in the Second Amendment. At the time of the drafting of the Constitution, there was no military industrial complex, and no standing army. Giving civilians the right to bear arms meant that if they joined together in great enough numbers, they could create a sizable opposition to the US government – and potentially win. In other words, I see the core of the Second Amendment to not be the right to own a gun (a trivial right if not tied to a greater purpose). I see the core of the Second Amendment to be the preservation of ultimate freedom in the people, who must be ensured the ability to stand up to the government.

You see that on the basis of what historical sources? Who, among those who passed this legislation in the First Congress, or who voted to ratify it in the state legislatures, wrote or said something that presents evidence that someone peripherally responsible for making this law, meant this thing? Let us leave aside all questions that would arise had not just someone, but most of the people who created that legislation meant such a silly thing—which I can assure you that people who had just watched the actual war that had happened in North America did not for an instant think. They did have many concerns about military policy, standing armies, and their relation to despotism. Which ended up in a very clear sentence explaining that the new federal government was not empowered by its ability to raise armies to dissolve the state militias, or to prevent state government from enrolling them. You forget that they lived in a world you don't live in at all, in which the possession of military forces comprised of citizen volunteers _by State governments_ were considered to be the bulwark of political liberty and the guarantors of safety from an overpowerful imperial federal government.

Given today’s military industrial complex and surveillance state, I would argue that the Second Amendment requires the need for a mandated privacy right strong enough to prevent the government’s ability to gain enough information to control us.

What sort of advantage do we derive with the Justices you have said aren't interested in changing the law from bringing them this new theory of the meaning of the Second Amendment that they've never heard before and for which there is (so far) no additional historical or analytic support? Are we to assume that they will each individually be so convinced of this theory that they will therefore change their views on subjects ranging from search and seizure on the one hand to abortion on the other, or just that they're going to be more completely convinced that a national register of gun owners is unconstitutional? Is this another meaning of "privacy," distinct from the others so far noticed?

I think the path to revision here is to focus on the central point. If that point is "the Second Amendment and its contribution to privacy law," you should start there and develop your argument systematically. If that isn't the point, it's a distraction. Certainly not the point are the historical illustrations, which—being single instances—cannot be arguments. But whatever the central theme is as you recast it, put it first. Show the reader how to develop confidence in the thesis through the following paragraphs, in which sources are identified, arguments put forward, objections answered. Conclude by taking the idea you've established and showing the reader how to take it a step further for herself.

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