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.

Could there be a right to privacy in the Second Amendment?

Early in American history, the right to bear arms was seen by some as supporting a natural right of resistance to oppression, including by Blackstone. Similarly, Alexander Hamilton viewed an important aspect of the Second Amendment to be that of enabling the people to stand up to the government “to defend their own rights and those of their fellow-citizens.”[1] In fact, in the Mount Vernon Conference in March 1785, a central topic of debate became whether civilians in militias would be able to effectively stand up to the federal army’s government, with the Anti Federalists concerned they may not be able to.[2] The framers viewed the right to bear arms as a paramount right, by which other rights could be protected against despotic infringement.[3]

When drafted, the right to bear arms was seen, among other things, as a last resort the people could turn to against a tyrannical government. As summarized by one 20th Century militia leader, there have always been three methods to elicit social change: “The jury box, the ballot box, and the cartridge box.” (pg 644) This theory of the Second Amendment, called the Insurrection Theory, argues that the possession of firearms by the people is in part to give the people the ability to stand up to a turned-despotic government. Apart from the Second Amendment, this right can also be anchored in the Declaration of Independence as a right to change government.[4]

However, the Constitution has numerous provisions that are aimed at preventing and punishing uprisings.[5] The Civil War can also be seen as persuasive evidence that there is no right to insurrection. It could be countered that a right of insurrection validly arises only when the Constitution’s scheme for peaceful and orderly change is improperly abridged or foreclosed. In other words, so long as the ballot and jury box are not compromised, there is no sanctuary in the Second Amendment’s cartridge box. However, if a despotic government does emerge, the Second Amendment may be interpreted as a last bastion of defense, the preservation of which must be ensured now.[6]

In modern society, the evolution of mankind to the Fourth Era has created a new impediment to this ability through the right to communicate freely – man is already, or will soon be no longer able to speak without the overlooking eye of the government present. As outlined in No Place to Hide and in class, the government’s ability to monitor everyone, in real time, enables the government to identify the most likely potential threats using up-to-date information aggregated from everything from your browsing history to the location of your phone, and everything in between.[7] This level of information aggregation and processing, when combined with the current lack of privacy or lack of any real ability to maintain anonymity, effectively thwarts any ability to organize without the government’s implicit permission.

I believe it can be argued that the idea behind the Second Amendment requires a strengthening of the people’s rights to counter the reduced effectiveness of the people’s ability to resist tyranny caused by the emergence of the 4th Era. Due to the financially and socially untenable nature of enabling citizens to arm themselves with adequate weaponry, I believe it is appropriate to look elsewhere to regain this lost ground. The closest, and possibly only, approximation available in today’s society is some ensured amount of privacy and anonymity, so that the people may anonymously congregate. The ability to read, publish, and communicate anonymously would enable at least some amount of congregation and dissemination of viewpoints throughout the populace. While it is unclear whether this would be enough, it is a necessary first step to enable people to be free.

The actual caselaw related to the Second Amendment, unsurprisingly, addresses issues related to the control of guns and not of privacy. However, recent case law does have a tinge of applicability to maintaining privacy. In the 2008 Supreme Court case District of Columbia v. Heller, the court noted that The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, undermining the people’s ability to defend themselves against a politicized standing army or a derelict millita.“ This same rational is also dependent upon the ability of the militia to organize, thereby potentially suggesting some right to privacy or anonymity so that they may organize.

[1] The Federalist Papers No. 29 (Alexander Hamilton) (concerning the militia).

[2] The Federalist Papers No. 46 (James Madison).

[3] Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 223 (1984). See also http://providencefoundation.com/?page_id=2525.

[4] The Declaration of Independence para. 2(U.S. 1776).

[5] See 70 Am. Jur. 2D Sedition, Subersive Activities, and Treason §87 (1987).

[6] See Col. Charles J. Dunlap, Jr. (1995). "Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment". 62 TENN. L. REV. 643.

[7] Robert O'Harrow, No Place to Hide, pp 214-216 (free press, 2005).

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