America has a deep tradition of distrust toward the federal government, and a sometimes fundamentalist worship of its founding fathers. These two cultural strands combine to form a common narrative, that we are moving from an idyllic time when America was a truly free nation and are heading toward an era where the government and/or corporations are examining everything we are doing and using that knowledge to shut down dissenting political views, almost always the views of those repeating this narrative. The growth of the domestic surveillance state after 9/11 under both Presidents Bush and Obama has fed what sociologist Richard Hofstadter called the Paranoid Style in American Politics. Elements of left-wing populism, civil libertarianism and nativism have merged into a movement which not only dislikes government but sees an active conspiracy to strip away constitutional freedoms in the name of political power.
Ignoring the question of whether we are currently or will be living under a police state, the whole argument assumes precisely that we are moving away from a past that had strong protections on personal civil liberties. The right to privacy is presupposed to have always been a foundational legal protection, underwriting the spirit of the Bill of Rights. It is also thought to be above partisan politics, with both the anti-government right and the anti-authoritarian left disagreeing only to its extent. The right to privacy also faces its only opposition from the ¨elites¨, as civil libertarians take a page from populist movements which monolithically put the ¨elite¨ into the evil category and the ¨people¨ into the good category.
This view is ahistorical. The right to privacy in terms of court interpretation of the fourth amendment is relatively recent. That says nothing about whether it is a fundamental right, but like most of today´s civil rights protections American society took a while to apply them in a substantive way. Incidentally the right to privacy was firmly established by the Supreme Court at about the same time of the civil rights movement in the 1960´s. To claim that today´s challenges to the fourth amendment are unprecedented is simply not true. The right to privacy took a long time to develop, and has always been denied in some way, right or wrong. What makes today´s surveillance different from that of the past is how much the federal government has gotten involved and on such a large scale. Before the twentieth century, technological limitations prevented widespread government intrusion and the small size of government prevented an ability to exercise that power. The same goes with corporations, which started the violations of privacy not seen when the Bill of Rights was being ratified.
To begin, neither the Bill of Rights nor the Constitution contain the phrase right to privacy or even the word privacy. From a strict textual point of view, there is no general right to privacy. The case for privacy rights then lies not in the direct language of the Constitution, but in the underlying purpose of four amendments, the third, the fourth,the fifth and the ninth. The third and the fourth deal with a specific limitation on government intrusion into the home, the fifth on how it is done, and the ninth species the nature of whether rights no written in the Constitution exist. Together these four reveal that without a general right to privacy none of the stipulations would have any teeth or grounding in any legal principle.
The Third Amendment reads ¨No soldier, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.¨ Quartering occurs when a soldier takes residence in a civilian´s home without their permission, a practice very relevant to the Founders. British troops began quartering after the French and Indian War in Canada where soldiers needed housing to stay in America. The colonial governments were uncooperative, so Parliament passed the Quartering Act of 1765 which gave British troops authority to take over colonists homes and make them provide food and lodging free of charge. Colonial legislatures were still uncooperative, so Parliament passed another quartering act in 1774 in response to the Boston Tea Party of 1773, where colonists dumped British tea into the harbor in protest of colonial trade policy. This act gave enforcement power to Governors loyal to Britain. After the Revolutionary War, Americans generally agreed they did not want a military with unlimited powers and sought to circumscribe its role. This was especially important since the Constitution repacing the previous government under the Articles of Confederation gave congress the power to raise a standing army, an ability the previous government lacked. As part of the original Bill of Rights, the anti-quartering third amendment was ratified. Clearly underlying its language is the concept that during times of peace citizens should be free of government intrusion into their homes.
A much broader protection of the right to be king of ones castle is the Fourth Amendment, ¨the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.¨ This extends the privacy of the home to be protected from all government agents and further puts the burden of proof on the government. The intrusion that occurred from unlimited searches and seizures was more common and deeper than that of quartering soldiers. Although home privacy and the requirement of a search warrant was established in Britain since at least the time of Sir Edward Coke and the famous Seymane´s Case of 1604, the protections did not apply to the colonies. The main government officials searching homes were tax collectors, never popular in any civilization. They obtained general warrants and could search just about any home they wanted to seize prohibited and uncustomed goods. The warrants were known as Writs of Assistance which were made to enforce laws and not tailor made to go after individual violators. These general warrants were the more egregious because they did not expire. Colonists were guilty until proven innocent. The powers were given under the Excise Act of 1754 which also gave tax collectors ability to conduct interrogations. The Massachusetts legislature acted in 1756 and forbade general warrants. This was the first act in America that curtailed seizure efforts. Things became complicated when in 1760 King George II died. With the death of a king, all warrants expire six months after his death unless renewed by his successor, George III. The next year in 1761, over 50 merchants in Massachusetts petitioned for a hearing on the warrants. Lawyer James Otis represented their interests for a five hour hearing where he denounced the general warrants in favor of limitations. The court did not rule in his favor. Dismayed, Otis was elected the the Massachusetts legislature and helped pass a law limiting the power of warrant issue. It was overturned by the governor, due to its defiance of parliament.
The protection against general warrants did become codified in the 1776 Virginia Declaration of Rights, which provided inspiration for the Declaration of Independence and the Constitution.
¨That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.¨
The 1780 Massachusetts Declaration of Rights, of the same state that fought against unreasonable search and seizure, put the closest thing to a right to privacy before the fourth amendment.
¨Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions.¨
Here, it is the person and their property regardless of suspicion who is protected. Notice the broad language of every subject and all unreasonable searches.
The fourth amendment became part of the constitution as part of the broader compromise of the Bill of Rights. Several states withheld ratification because of their fear that the new government would not be respectful of individual rights. Supporters of the constitution sans the Bill of Rights like James Madison eventually changed their minds and agreed specific protections were needed. On June 8, 1789, James Madison proposed to the First Congress twenty amendments to be added to the Constitution. One of these amendments eventually became the 4th Amendment. Congress approved twelve of the original amendments first suggested by Madison and ten of those were eventually ratified by the states. The First Ten Amendments, also known as the Bill of Rights, became law on December 15, 1791.
In terms of privacy, the relevant passage of the Fifth Amendment is the most well known, ¨no person... shall be deprived of life, liberty, or property without due process of law.¨ The relevant history in its defense of a general right against government intrusion occurs in the early 20th century in Lochner vs. New York. The court struck down a New York statute which limited working hours, because it was seen as a violation of the protection of life, liberty, and property and not justified by due process. This was an early instance of carving out a general principle not listed in the constitution. The principle would become known as Substantive Due Process, the idea that certain government actions are outside of its authority to regulate and cannot be justified by even a fair legal process. A sphere of individual liberty has to be assumed when crafting laws. Although the court threw out this ruling later as being decided in the interest of businesses fighting regulation, it went on to define other rights which could not be violated
One of the amendments not as well known, but important to interpreting a right of privacy from the Fourth Amendment is the ninth. The Ninth Amendment to the constitution reads ¨the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.¨ This was a concern, ironically, of the Federalists who did not favor a Bill of Rights. Their argument, summed up by Alexander Hamilton in the Federalist Paper 84 was "why declare that things shall not be done which there is no power to do?" Their concern was that listing rights would imply to future lawmakers that if other rights were not directly listed they did not exist and could be denied. The solution even more ironic was to ad an amendment listing the Federalists objection to the concept of enumerated rights. The Virginia state convention drafted the original language in their amendment proposal reading ¨that those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. It was ratified likewise with the other amendments.
Although the term right to privacy or the word privacy itself are not in the constitution, the ninth amendment makes it clear that just because it is not listed does not mean that it does not exist. The amendments are limitations on government, and not grants of power implying other rights may be denied. The underlying philosophy is that under the terms which a free government is formed in the social compact, which is to protect liberty, limitation of freedom must be justified. Without government, we are in a state of natural liberty. That state of absolute liberty is unworkable due to human frailty, so we create government to limit freedoms so society can function. But this agreement is only made out of necessity. Remember Thomas Paine´s dictum that government is a necessary evil. After overthrowing British colonial rule and having the chance to govern ourselves, we did not intend to create a government ignorant of liberty. The assumption that the individual out to be left alone unless there is good reason, and not the other way around. The burden of proof is on the government, the reversal of the principle of general warrants. Helpful in understanding this is the fifth amendment which prohibits the taking of life, liberty, or property without due process. Without good reason, there is a basic right to be left alone as part of being a party to the social contract that is the constitution. The legal principle of Substantive Due Process says that certain government actions are not allowed even if they have some practical reason because part of due process is considering the rights which will be denied. If there are not sufficient safeguards, it is not following the spirit of the law.
Privacy rights germinated in legal scholarship long before they became legal precedent. Writing in the Harvard Law Review in 1890, law partners Samuel Warren and future Supreme Court justice Louis Brandeis published “The Right to Privacy,” one of the most influential law articles ever written and the first well read defense of a general right to privacy.
The impetus for the article was the prominence of Sam Warren´s family in Boston which made them a target of the late nineteenth century version of paparazzi, who exploited what the article called “instantaneous photographs.” The recent development of photography allowed individuals to keep a visual record of the inside of a persons home and display it to people who did not disturb anyone´s privacy but still could invade it by buying a newspaper. Beginning with “the individual shall have full protection in person and in property is a principle as old as the common law…,” Warren and Brandeis build a case for extending the means to seek recourse for privacy infringement, no matter what the means.
The authors definitely had legal standing to justify arguing for individual privacy. It is not arbitrary that they wrote ¨if you may not reproduce a woman’s face photographically without her consent, how much less should be tolerated the reproduction of her face, her form and her actions, by graphic descriptions colored to suit a gross and depraved imagination.” Warren’s daughter had recently been married, and tabloid reporters had disrupted the otherwise happy occasion.
The article concludes with a provocative question that foreshadows Brandeis’s future role in constitutional issues of privacy making reference to English Common Law and its protection of privacy in ones home.
¨The common law has always recognized a man’s house as his castle, impregnable, often, even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to the constituted authority, and open wide the back door to idle or prurient curiosity?¨
Louis Brandeis became associate justice of the Supreme Court in 1916 due to patronage from president Woodrow Wilson, who he was a close advisor to. He would remain until 1939, in the meantime unsuccessfully fighting for his ¨right to be let alone¨ to become jurisprudence. Although he would not live to see the fruits of his labor, he laid the intellectual groundwork for future courts to establish what is now as American as baseball.
The era of alcohol prohibition brought privacy issues to the Supreme Court in a case concerning wiretapping, Olmstead v. United States (1928). Roy Olmstead was convicted of bootlegging, using evidence obtained from a wiretap on his personal phone line. This case returned Brandeis to the privacy cause. The Court narrowly interpreted the Fourth Amendment as applying to only searches and seizures involving tangible objects. But in dissent and drawing from his and Warrens article, Justice Brandeis contended that the Constitution conferred upon each individual a general right of privacy, and foreshadowed the modern constitutional right to privacy. Brandeis recognized that more subtle and more far-reaching means of invading privacy have become available to Governments. Discovery and invention of skeletons in the closet have made it possible for the Government, by means far more effective than physical coercion, to obtain disclosure in court of whatever is whispered in the closet.
The constitutional right of privacy as we know it today was not part of the law of the land until 1965, when the Court ruled in Griswold v. Connecticut. As far back as the late nineteenth century the Court categorized certain unlisted rights as fundamental and immunized them from governmental encroachment. Surprisingly, one of these rights is the subject another historical misconception, which is that the presumption of innocence and the standard of proof beyond a reasonable doubt are foundational principles in the American judicial system; not so. Actually the case that established those rights was not decided until 1895, over a century after the Bill of Rights.
In his very brief majority opinion in Griswold of only a few hundred words, Justice Douglas wrote that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” Douglas cites the First, Third, Fourth and Fifth Amendments, and finally the all-encompassing Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The closing paragraph of Douglas makes reference to rights which precede governments by way of our consent to the social contact by using the metaphor of marriage.
¨We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet is an association for as noble a purpose as any involved in our prior decisions.¨
Griswold was cited in the Court’s future opinion in Roe v. Wade, and considering the controversy that still surrounds that 1973 case, it’s safe to say that privacy issues will be a frequent cause of disagreement for as long as anyone can foresee. Atlanta civil rights attorney Chris Balch pointed out in an email that “Griswold and Roe both arise from the 14th Amendment’s due process clause and are founded in substantive due process analysis created for certain rights deemed by the Court as fundamental to any notion of freedom.” Balch helpfully offers a concise summary of that intimidating phrase, “substantive due process.”
¨It defines the Court's understanding of what is involved in life, liberty and property which may not be infringed without due process of law. Life is not just the mere act of existing, eating, breathing, and walking around. Life involves our human relationships as well. Thus, the substance of life is the right to be free from interference by the Government or the State without due process. It is also a concept that the Constitution limits the substance of what the legislature may direct, not just the process by which it directs such edicts.¨
A few years later in 1967´s Katz v. United States, the court took Brandeis´s side and officially overruled Olmstead and made his dissent the law by arguing that individuals have a ¨reasonable expectation of privacy.¨
Privacy as a constitutional right was a late arrival, first adopted by the Supreme Court almost two centuries after the Bill of Rights. Its long history should put to rest the common belief that it has always been clear that we even have a right to privacy. Today´s post-Patriot Act and FISA courts world may seem as a blatant rejection of the fourth amendment, but that is only when taking a modern view. In reality the pendulum is swaying back to more limitations, but even the most staunch defenders of current surveillance use the language of privacy rights when making public arguments. This swing is mostly due to the rise of Strict Constructionism, a conservative legal interpretation which claims the only rights protected are those actually written. The job of a judge they argue is not to reinterpret the past laws in light of societal change, but to allow elected representatives to change them unless they do something directly prescribed against. Civil liberties like the right to privacy are islands in an ocean of government authority when it comes to judges. This view has become widespread because American voters elected Republican presidents a majority of the time from 1968 to 2008, and the president nominates and appoints judges. A majority of the Supreme Court has been Republican appointed since the 1970´s and has opted to limit privacy rights on issues like abortion. FISA courts which hear privacy cases and approve warrants for government surveillance are appointed by the president alone are majority Republican. The challenge to privacy is in a way democratic and most certainly deliberate by opponents of Griswold and Roe.*
If you want more robust safeguards for privacy, vote for civil libertarians.
2/4/2017: I agree with this view. Glad I articulated it so well over 2 years ago.
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