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None of Your Damn Business

22 October 2019

From The Wall Street Journal:

The word “privacy” appears nowhere in our Constitution, but privacy lies at the root of our constitutional republic. At least that is how John Adams saw it on the day before America declared independence. Writing to his wife, Abigail, on July 3, 1776, Adams observed that the path to independence traced back to “the year 1761,” specifically to “the argument concerning writs of assistance.” Fifteen years before, Adams witnessed a trial in Boston challenging British searches and seizures licensed by broad “writs”—warrants—issued by the king. He even memorialized lawyer James Otis’s case against them: “One of the most essential branches of English liberty is the freedom of one’s house,” Adams summarized at the time. “A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle.”

The argument failed in court but prevailed three decades later in the U.S. Constitution—more specifically, in the Fourth Amendment, which protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Other amendments protected the right not to open one’s home for military troops and the right not to testify against oneself.

Nearly two centuries later, as University of Alabama history professor Lawrence Cappello relates in “None of Your Damn Business,” the Supreme Court concluded that these specific rights implied a much more general “right of privacy.” As the court explained in infamously foggy terms, “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” In the case that prompted these words, Griswold v. Connecticut (1965), a right of privacy guaranteed married couples’ access to contraceptives. A half-century of further emanations and penumbras followed: a right to abortion, a right to same-sex marriage.

. . . .

Mr. Cappello brings together several aspects of “privacy” in American life and law to show how changing technologies and cultural values shaped our expectations of privacy. He reminds us that privacy involves our relationships with corporations—and with one another—as well as our relationship with the government. These themes are exemplified by Louis Brandeis, who before joining the Supreme Court co-wrote “The Right to Privacy,” an article focused not on government surveillance but on the acts of “the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds.” Brandeis argued for a personal right of privacy against them, which came to be known as the right “to be let alone.”

. . . .

Mr. Cappello credits Brandeis with devising “an entirely new approach” by “shifting the emphasis from where an alleged wrong took place . . . to how it affected an individual.” Brandeis lost in Olmstead, but the Supreme Court did adopt a more Brandeisian approach in Katz v. U.S. (1967), overturning a handicapper’s conviction because the police did not obtain a warrant before tapping a phone booth; the Court reframed the issue in terms of what would come to be called “reasonable expectations of privacy.”

Link to the rest at The Wall Street Journal

Legal Stuff, Non-Fiction

4 Comments to “None of Your Damn Business”

  1. An explicit right of privacy with clear bounds is desperately needed.
    But we’re not going to get one as long as people keep relying on fuzzy implied rights legislated by judges.

  2. U.S. Constitution, Amendment 9:
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    It was and is my opinion that this language covers the right of privacy. IMO the SCOTUS dove down the damned rabbit hole with talk of penumbras and emanations. Reliance on the Ninth Amendment would have simplified and strengthened the precedent.

    • Problem is the constitution is primarily about citizen/government interactions. Very little is about citizen/citizen interactions.

      Implicit rights require judicial intervention and that tends to be case by case and reactive. Nowhere near as effective or efficient as a clear set of boundaries. For example, on things like right of publicity, which exists in some states, not in others, and works differently where it does exist.

      • Felix, that’s the whole point. The amendments to the Constitution are not primarily about citizen-government interactions, they are ONLY about citizen-government interactions.

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