Right of Privacy (Update)

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Despite extensive litigation and commentary, the right of privacy has remained uncertain in constitutional law since it was first established in griswold v. connecticut (1965). The abortion decision in roe v. wade (1973] raised the level of controversy about the right of privacy without clarifying the scope or nature of the rights understood under this concept. Sharp criticism of the vagueness of the concept of privacy and persistent doubts about its supporting constitutional text and traditions have not hampered the vitality of the right of privacy. In some areas, such as the right to die, privacy and related concepts have made notable advances in constitutional law. Senate hearings on recent Supreme Court nominees, notably those leading to the rejection of Robert H. Bork and the confirmation of david h. souter seem to confirm these advances as political achievements. We cannot be sure, however, whether or not particular rights (such as the right to abortion) will survive changes in the personnel of the Court.

Recent majorities on the Supreme Court have generally identified the fourteenth amendment's guarantee of "liberty" as the source of privacy rights. This is a notable shift for two reasons. First, it signals the willingness on the part of recent Justices to accept substantive due process as a legitimate concept in constitutional law, so long as it does not touch on economic or labor matters. To Justices of the generation of william o. douglas and hugo l. black, adjudication under such a general rubric was perilous. It encouraged judicial excess. Douglas went to great, perhaps absurd, lengths in Griswold to find textual sources for a right to privacy in the First, Third, Fourth, Fifth and Eighth Amendments. arthur goldberg sought to find privacy in the ninth amendment. This is now widely understood as a fool's errand.

Second, the preference for a more general source of rights reflects continuing uncertainty about definition of the right of privacy together with an unwillingness to surrender its advantages. Whatever its source, Justice harry a. blackmun wrote in Roe v. Wade, "[t]his right of privacy … is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Justices in more recent decisions have sometimes altogether avoided the term privacy, with conservatives often speaking of "liberty interests" and liberals of personal or "intimate" decisions. In Cruzan v. Missouri Department of Health (1990), the "right to die" case, Chief Justice william h. rehnquist made this avoidance explicit: "Although many state courts have held that a right to refuse treatment is encompassed by a generalized constitutional right of privacy, we have never so held." The issue, he added, "is more properly analyzed in terms of a 14th Amendment liberty interest."

Outside of the law of search and seizure, privacy has proven extremely hard to define. Scholars have been unable to agree on the elements of ordinary usage, constitutional history, or moral philosophy from which to construct a normative concept. The concept itself has been of little but rhetorical help in deciding particular cases in which, typically, regulation is seen to invade an individual's preference for seclusion or immunity. All this has made the precedents of Griswold and Roe hard to confine by ordinary arguments. The steps from privacy in marital sexuality to privacy in abortion and from heterosexuality to homosexuality have not been easy to resist when arguments are made in terms of a right to privacy possessed by all persons.

However disappointing to those awaiting clarification, the turn from privacy to liberty may nonetheless make good legal and political sense. Privacy as a term has no plain reference or meaning for most of us. "The right to be let alone," as earl warren and louis brandeis called it, covered many situations and many abuses. In criminal procedure, the protection of "persons, papers, and effects" refers to those things (including one's own body) over which we normally exercise complete control. But the transportation from one context to another—search and seizure, for example, to sexuality—leaves much of the force of argument, as well as precedent and tradition, behind. We are left then with an argument for immunity unaided by the concept under which immunity is claimed. Obviously, private life—la vie privée—must shelter information, decisions, and behaviors of many different kinds. The question is, which ones are to be protected against regulation or governmental intrusion?

Liberty is not much more helpful in this regard than is privacy. Yet liberty offers a plainer inquiry with less confusion and less of a temptation to believe that we will find our rights by simply defining a concept. Moreover, liberty, unlike privacy, is a concept with a long constitutional history.

The inquiry that now seems to govern adjudication is whether or not fundamental liberties extend to certain aspects of private life, including sexuality, reproduction, and perhaps dying. Often, regulations have reached these matters in connection with medical treatment. Thus, the right to die is the right to refuse medical treatment where it might prolong life. The right to abortion is the right to choose whether or not to terminate a pregnancy before the fetus is viable outside the womb. We may generalize from these instances to a concept of privacy in intimate associations or intimate decisions, but the Supreme Court's response to this generalization remains equivocal: Sexuality between consenting adults of the opposite sexes seems at this point effectively protected. Although Griswold relied on the context of marriage for its extension of protection to information about the use of birth control, eisentadt v. baird (1972) seemed to make clear that this context was unnecessary. We should note, however, that the effective protection for disapproved behavior lies in a conjunction of privacy decisions from the Supreme Court and, of equal or greater importance, regulatory reforms from the various state legislatures that permit a greater range of behaviors than heretofore. Sodomy statutes remain on the books in many states, and it is not yet clear that unmarried heterosexual sodomy would be held to be protected by the Supreme Court.

In bowers v. hardwick (1986) the Court upheld a Georgia statute that made sodomy a felony in a case in which charges had been filed and then withdrawn against two consenting adult males. The 5–4 decision sharply divided the Court. "The issue presented," wrote Justice byron r. white, for the majority, "is whether the Federal constitution confers a fundamental right upon homosexuals to engage in sodomy.…" Justices Blackmun, william j. brennan, thurgood marshall, and john paul stevens dissented. "This case is no more about a fundamental right to engage in homosexual sodomy," Justice Blackmun wrote, "than stanley v. georgia (1969) was about a fundamental right to watch obscene movies, or katz v. united states (1967) was about a fundamental right to place interstate bets from a telephone booth." For the dissenters, Brandeis's dissent in olmstead v. united states (1928) provided the applicable concept, "the right to be let alone," as Warren and Brandeis had described it (without any reference to sexuality) in their famous Harvard Law Review article on the "Right to Privacy." Thus, Blackmun insisted on a certain understanding of the concept of privacy: "I believe we must analyze respondent's claim in the light of the values that underlie the constitutional right to privacy. If that right means anything, it means that, before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choice they have made is an "abominable crime not fit to be named among Christians."

The incommensurability of these points of view may be understood from at least three angles. First, and most obvious to students of the concepts of privacy and liberty, there is a difference over the level of abstraction at which the argument will be joined. The majority refused to accept the claim that adult homosexuals might shelter their consensual sexual practices under the same general liberty as adult heterosexuals. To the majority, the assertion is of an immunity to engage in a homosexual act consistently condemned in our tradition. The dissenters argue that this act must be understood in relation to other sexual intimacies protected by the Fourteenth Amendment. It is, after all, an expression of sexuality between consenting adults in the bedroom of a private apartment. (A house-guest had admitted the policeman into the apartment and directed him to Hardwick's bedroom.) Neither position is refutable as illogical or inconsistent. The choice of a level of abstraction will often decide a dispute over rights; yet there seems to be no conclusive argument that one level of abstraction is the appropriate one for a given case. What makes one level preferable to another is the sense of coherence and completeness at that level of whatever issues are understood as pertinent. This is inevitably a circular process of reasoning. Intimacy and sexuality seem the relevant terms to the dissenters, but not to the majority, which focuses on homosexuality. A simpler way to understand this difference is to note that, as always, each side in legal argument denies the applicability of the other side's precedents. In this case, the majority will not accept the force and bearing of Griswold, Eisenstadt, and Roe v. Wade. For the dissenters, however, these are the relevant precedents, pointing the way to a different result.

Finally, there is an important line of argument, going back to the younger Justice john marshall harlan in Poe v. Ullman (1961), that tradition should inform our understanding of the concept of liberty. Constitutional traditions, like others, are notoriously inexact. Moreover, there are good traditions and bad ones. Yet it is undeniable that legal and institutional traditions give us a context in which to understand the terms and arrangements provided for in the Constitution. due process is one example, judicial review is another, and privacy may be a third.

Harlan, in Poe and Griswold, relied on a specific tradition, namely, marriage. The various measures of restriction and permission attached to it by law suggested to him that the concept of privacy had constitutional standing in protecting the uses of sexuality—including contraception—by husband and wife. He never went beyond this point, however, retiring from the Court in 1971, one year before the Eisenstadt decision and two years before Roe v. Wade.

Eisenstadt 's majority opinions had relied on an equal protection argument that left the factual question of the marital status of the recipient of a contraceptive unresolved. Justice Brennan's language, however, was unambiguous: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." This language may be said either to disregard tradition or to generalize it, raising it to a more abstract level. Only in moore v. city of east cleveland (1977) has the Court openly pursued Harlan's approach. In this case, the Court invalidated a zoning ordiance disallowing residence in the same house of a grandmother and two grandchildren who were cousins rather than siblings. Justice lewis f. powell cited Harlan's reasoning in Poe in a plurality opinion insisting on "the sanctity of the family." "Ours is by means a tradition limited to respect for the bonds uniting the members of the nuclear family," he wrote.

Predictions about the future of the right to privacy must rely in part on assumptions about appointments to the Court. The Bork hearings seemed to suggest that a consensus now exists—in the Senate and in public opinion—on the importance of the right to privacy in constitutional law. This consensus does not mean, however, that the right to an abortion is secure. With the departure of Justice Brennan, Roe v. Wade is vulnerable to reversal. Justices anthony m. kennedy, antonin scalia, and Byron White, along with the Chief Justice, have all suggested an eagerness to reverse. Justice sandra day o'connor has also indicated her preference for a new and less restrictive standard of review in abortion cases, although without clarifying its implications. Regulation that does not "unduly" burden abortion will survive judicial scrutiny, she wrote in hodgson v. minnesota (1990). This may well be the last decision to leave Roe 's holding in place. What seems unlikely is that Griswold or Eisenstadt will be reversed. Indeed, many would foresee the likelihood of an extension of privacy protections to homosexuals as inescapable, however conservative the Court. If so, cultural acceptance may ultimately prove more crucial in constitutional debate than the conclusions of scholarship or formal argument.

Similarly, the right to die as an aspect of privacy, liberty, or both, seems at this point to have secured its toehold in constitutional law. Like sexual privacy at the time of Griswold, this right remains uncertain in scope and definition, and the concept at work—once we move beyond a narrow statement of the right to refuse treatment—is both elastic and ambiguous. But these are not fatal intellectual flaws in constitutional law. Privacy, like many legal concepts, is not so much a philosophical conception as a practical one, more readily identified by its messy precedents than by its tidy definition.

Tom Gerety


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