Given that the Constitution does not contain the word “privacy,” how can it guarantee a right to privacy?

Privacy and the Problem of Enumeration Central Questions 1. The Legal Question: Given that the Constitution does not contain the word “privacy,” how can it guarantee a right to privacy? 2. The Moral Question: Should there be a right to privacy? What exactly does privacy protect, and what potential dangers does it create? Class Today 1. The Problem of Enumeration 2. The Legal Question About Privacy: Is it Really a Constitutional Right? 3. Griswold v. Connecticut 4. Exercise: The Value of Privacy 5. The Moral Question About Privacy: Should it Be a Right? 1. The Problem of Enumeration The Basic Difficulty • The word “privacy” does not appear once in the Constitution. • Although the Constitution contains various guarantees — for free speech, against unreasonable search and seizure, etc — it doesn’t mention privacy. • Does this mean that it has nothing to say on the matter? But why must a right be enumerated in the Constitution to be protected by it? Two Ways of Limiting Government 1. Only giving the government certain explicitly defined powers.

– Eg : the powers given to Congress in Art. 1 Sect. 8 2. Specifically protecting certain things from government intervention.

– Eg : the Bill of Rights • Is one method better than the other? The Trouble with Specific Protections?

• Hamilton, in Federalist 84 (1788):

– “[B]ills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.” The 9 th Amendment as Guarantee • 9 th Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” • In other words: The Constitutional enumeration of rights should not mean that the federal government can do anything so long as it’s not explicitly prohibited from doing it. But which unenumerated rights should be enforced? • The 9 th Amendment paves the way for unenumerated rights. But how can courts figure out which unenumerated rights we have? • The 14 th Amendment! – Although Slaughterhouse (1873) largely neutered the privileges and immunities clause, the due process and equal protection clauses still stand. Substantive Due Process • Constitutional Basis:

– 5 th Amendment: “No person shall… be deprived of life, liberty, or property, without due process of law.” – 14 th Amendment: “No state shall… deprive any person of life, liberty, or property, without due process of law.” • Judicial Interpretation : D ue process should protect people from all arbitrary excesses of power and law, not just (say) violations of proper judicial processes. But what exactly is an arbitrary use of power? • Court’s first invocations: contract.

– Lochner v. New York (1905) : NY laws limiting how many hours a week bakers could work was an arbitrary limit on free contract. – Similar decisions followed for minimum wage. – There is no explicit Constitutional guarantee of free contract. But the court presumed it as an unenumerated right. Poe v. Ullman (1961) • Justice Harlan’s famous dissent:

– “[T]he full scope of liberty guaranteed by the Due Process Clause cannot be found or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out… It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.” • The Bill of Rights is a guide to the sorts of rights that are protected, but not an exhaustive list. 3. Griswold v. Connecticut 381 U.S. 479 (1965) Legal Background • An 1870s Connecticut law prohibited the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” • The law was challenged several times before Griswold : – Tileston v. Ullman (1943): challenge brought on behalf of women for whom pregnancy would be dangerous; Supreme Court ruled that they lacked standing, because the law would probably not be enforced against them. – Poe v. Ullman (1961): challenge brought on behalf of a married couple who wanted to avoid pregnancy after their first thee children had denied in infancy. As with Tileston , the court ruled that, because the law had not been enforced against the couple, they did not have standing. Griswold: The Facts of the Case • In the wake of Poe , Planned Parenthood opened a clinic in New Haven, Connecticut specifically dedicated to providing birth control to married women. • Estelle Griswold, executive director of Planned Parenthood Connecticut, was arrested, found guilty, and charged $100. Immediately afterward, she filed suit. The Griswold Opinion: William O. Douglas Douglas Doesn’t Explicitly Cite the 14 th Amendment’s Due Process Clause • Douglas had earlier held that the 14 th automatically and entirely incorporates the first 8 Amendments, and so he didn’t need to site it to apply them to state action in Griswold. • He therefore proceeds straight to an argument based on the Bill of Rights. The Penumbra “Various guarantees create zones of privacy.” • First: right to have one’s associations free from government intrusion • Third: no quartering of troops creates a right of domestic privacy • Fourth: “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” creates a right to an autonomous, private life • Fifth: right against self -incrimination creates a right to keep one’s private life out of government scrutiny Privacy Since Griswold • Griswold protected the right of married couples to use contraception. • Since then, the right of privacy has expanded:

– Eisenstadt v. Baird (1972): contraception for unmarried couples – Roe v. Wade (1973): abortion in first trimester, only regulate in second trimester for health of mother – Lawrence v. Texas (2003): same -sex sexual intimacy 4. Exercise: The Value of Privacy Why (if at all) do you value privacy? What good does it bring to your life, and what would you lose if it weren’t there? Are there parts of your life where you are not concerned with privacy, or where you do not think privacy should be a guaranteed political right? 5. The Moral Question Why should we care about privacy? 1: Human Dignity and Autonomy • Living a full human life requires being able to keep some things out of public view, and public scrutiny.

– Thomas Hobbes: “ The secret thoughts of a man run over all things, holy, profane, clean, obscene, grave, and light, without shame, or blame.” • We must be able to control our presentations in public, to make ourselves as we see fit. Why should we care about privacy? 2: The Protection of Intimacy • Love and friendship require being able to give things to some, and keep them away from others.

– If everything is visible, then nothing is special. • Similarly: Privacy allows us to develop diverse relationships with varieties of others, and thus to live fuller lives. Two Critiques, 1: Privacy is not an independent value. • Judith Jarvis Thomson : appeals to privacy can actually be reduced to appeals to other values:

– Rights to property (physical and intellectual) – Rights to bodily -integrity or “self -ownership” • T.M. Scanlon : while Thomson is conceptually correct, appeals to privacy “have a common foundation in the special interests that we have in being able to be free from certain kinds of intrusions.” – Privacy invokes special moral considerations. Two Critiques, 2: Feminism and Private Domination • Catharine MacKinnon : Historically, private realms utterly free from public scrutiny have facilitated violence and sexual abuse.

– Overcoming “private” injustice requires making the formerly private public. • Anita Allen : While complete privacy can cover up abuse, we still need some privacy to live a good life.

– The difficulty is figuring out where to draw the line.