« A Thanksgiving Letter | Main | Brown Sex Party on FOX!!! »
The Right to Privacy
Bedrock or Shifting Sand?
Current Events & Constitutional Law
I have been thinking about the” right to privacy” since the GCCC meeting of September 22, where during the wine & cheese reception the discussion came around to video surveillance in the cause of crime fighting. Someone suggested that video cameras be used to counter the outbreak of graffiti vandalism, since the city was considering using cameras for recording traffic violations at intersections. I vividly recall one member being visibly shocked that a member of GCCC would advocate such an invasive and reactionary tactic, and I myself piped up, with something like, “That would be an unconstitutional invasion of privacy, wouldn’t it? Isn’t the ACLU” (of which I’m a card carrying member) “fighting traffic surveillance cameras on just such legal grounds? Doesn’t it violate our constitutional right to privacy?”
A few weeks ago I read an op-ed piece in the Boston Globe, by Jeff Jacoby, Privacy by decree, that shed some light on this issue. I set it aside in the “idea” pile on my desk thinking that it would make a good, informative, thought provoking post for the blog, along with the other partly written posts that pile up waiting for the free time to actually finish the writing. Well, I worked on it in bits and pieces as time allowed, saving the essay, copying and pasting it into Word and typing a few thoughts to keep the slim thread of an idea alive. By the way, I figured out there is no “free” time.
Now, with the news of President Bush’s nomination of Judge Alito to the Supreme Court being prominent in the news, especially the revelation of Alito’s background as a partisan and deeply conservative republican who seemingly opposes abortion rights on ideological grounds, I dug back though that pile on my desk and then found the computer file where I’d begun writing this post in early November.
What struck me about Jacoby’s op-ed piece was the opening line: “Nowhere does the Constitution guarantee the right to privacy.” Jacoby goes on to explain how Justice William O. Douglas, in 1965, discerned “zones of privacy” in “the penumbras, formed by emanations” pertaining to the Bill of Rights in his ruling on the case, Griswold v Connecticut, which struck down a Connecticut law banning the sale and use of contraceptives. This same perceived privacy right was again used in 1972 in a Supreme Court ruling on a Massachusetts case, Eisenstadt v Baird, giving the unmarried the same right to access contraception as the married. In 1973, this perceived right to privacy became the bedrock for the Roe v Wade ruling that guaranteed women the right to choose abortion, as well as the basis for the recent Massachusetts state ruling allowing same sex marriage.
But as bedrock, it may be less than firm, if I read Jacoby correctly. The conservative right in our country sees the chance to overturn Roe V Wade and make abortion illegal by the appointment of a conservative, partisan, ideologue to the Supreme Court bench: in Alito, have they found their man?
Maybe they will ban the teaching of evolution and ban abortion in one fell swoop.
At any rate, it pays to be well informed. I’m no legal scholar -- I don’t even play one on TV -- is there a legal scholar in the house?
I’ve provided the complete text of Jacoby’s, Privacy by Decree, below.
John Twomey
-
Privacy by decree
NOWHERE DOES the Constitution guarantee the right to privacy. The word ''privacy" isn't even mentioned in the text. But if all you had to go by was the obsessive interest in the subject whenever there is a Supreme Court vacancy, you might imagine that privacy is the very bedrock of American constitutional law.
Few legal cows today are more sacred. A judicial nominee who referred dismissively to the ''so-called right to privacy" or insisted that courts should not ''discern such an abstraction in the Constitution" would stand no chance of winning confirmation. That is why John Roberts, who wrote those words as a Reagan administration lawyer in 1981, smoothly disavowed them during his confirmation hearings in September. It is why Samuel Alito's nomination to the court was no sooner announced than his most important Senate ally -- the Judiciary Committee's chairman, Arlen Specter -- called a press conference to say the nominee had assured him that ''there is a right to privacy in the Constitution" and that Griswold v. Connecticut was ''good law."
Griswold was the 1965 case in which Justice William O. Douglas, writing for a 7-2 majority, discovered ''zones of privacy" lurking in the ''penumbras, formed by emanations" from the Bill of Rights. On the strength of that gaseous finding, the court struck down a Connecticut law banning the sale and use of contraceptives. The ''privacy surrounding the marriage relationship," Douglas wrote, was one of those ''penumbral rights" that lawmakers had no power to infringe.
In 1972 the court decided that this newly minted right to contraception wasn't connected to marriage after all. ''Whatever the rights of the individual to access contraceptives may be," Justice William Brennan wrote in Eisenstadt v. Baird, a Massachusetts case, ''the rights must be the same for the unmarried and the married alike."
A year later, Roe v. Wade expanded the ''right of personal privacy" to encompass abortion. In a 17,000-word opinion, Justice Harry Blackmun surveyed the history of abortion from the ancient Persians to modern times, detouring along the way to hold forth on the Hippocratic Oath, English common law, and the views of the American Medical Association.
But when the flood of rhetoric subsided and he finally got around to constitutional law, Blackmun had nothing more to offer on than the airy penumbra privacy that Griswold had unveiled eight years earlier. Even some liberal supporters of abortion rights were appalled by the decision's flaccid reasoning. In a withering critique, the legal scholar John Hart Ely wrote in the Yale Law Review that Roe ''is not constitutional law and gives almost no sense of an obligation to try to be."
Yet Roe lives on, and so does the right to privacy, which is now said to be located not only in those emanating penumbras but in the 14th Amendment's guarantee of liberty as well. In 1992, Justice Anthony Kennedy cobbled the two together, upholding Roe in a decision that rhapsodized about how the Constitution protects ''the most intimate and personal choices a person may make" and how ''at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." In Lawrence v. Texas 11 years later, Kennedy invoked that language in striking down a Texas law that made homosexual sodomy illegal. Soon after, in a decision citing Lawrence and the Supreme Court's pronouncements on privacy, the highest court in Massachusetts ruled that same-sex marriage must be permitted as a matter of state law.
From contraceptives to same-sex marriage is a distance that no one 40 years ago could have imagined the courts would travel. The thread connecting them is Griswold's judicially concocted ''right to privacy" -- amorphous, free-floating, and wonderfully handy for writing judges' personal opinions into constitutional law.
''I think this is an uncommonly silly law," wrote Justice Potter Stewart, one of the two dissenters in Griswold of Connecticut's ban on contraception. But it is not the job of judges ''to say whether we think this law is unwise, or even asinine." A statute can be foolish and unfair without being unconstitutional.
The other dissenter was Hugo Black, a champion of freedom who saw what was coming. He, too, found Connecticut's contraception ban absurd. But it is not the court's role to be ''a day-to-day constitutional convention," he warned, and adopting a standard as loose as the ''right to privacy" would set in motion ''a great unconstitutional shift of power to the courts which . . . will be bad for the courts, and worse for the country."
He was right. Griswold was wrongly decided, and its effects still poison American law and politics. But no Supreme Court nominee is prepared to say so. The last one who tried was Robert Bork.
From the Boston globe:
By Jeff Jacoby, Boston Globe Columnist.
Posted at November 15, 2005 11:13 PM
Now, I thought you were going to K.I.S.S. If you are going to add in a list of what is wrong with you, that really deserves its own post.
Also, being from greater Chicagoland you should know that the Bears are alive and well and in first place with a 5 game wining streak.
Now, lets talk about the post itself, as you can see, this is the tenth comment, from 5 different people. Look back and tell me when the last post got this amount of comments? As I see it, most of the comments are about surveillance cameras and crime fighting. As a matter of fact, you had to comment to try to get the discussion moved from local crime to Supreme Court nominee. That discussion is an important one, but when you start with local stay with local.
Lastly poems are great, pictures of vacations are beautiful, Thanksgiving is a nice thought, and should keep on coming, but crime is the hottest topic, it even wakes the sleeping bear.
P.S. I am now back to my regular simmer.
Posted by: Uri at November 17, 2005 04:03 PM
Does one have an expection of privacy when in a public space? If one were to be walking through a street crossing (say Cypress and Camp streets), would one be surprised or enrage if another was standing on the corner watching them walk by?
When engaged in a cellular phone conversation, does one expect privacy? Even though the conversation is freely available to be listen to with the correct equipment (tuned into like a radio station)?
If sending an email over the internet, does one expect privacy?
In my opinion, when in a public space, privacy should not be assumed or expected. If one would rather not be seen speeding through stop signs or selling drugs at Bill Taylor Park, they should move those activities to a private space.
One thing that often (but not always) moves unwanted activies from a public space is the knowledge of those involved in the activity that they are being watched. How is being watched by someone standing on a corner any different than being watched by a camera in the same place?
-- Brian Laferte, a.k.a. 'Super Frog Saves Tokyo'
Posted by: Brian Laferte at November 17, 2005 12:56 PM
So sorry that your blood boiled, Uri; let’s try to keep you at a low simmer. And I promise to at least try to keep things simple, just for you. Maybe we should adopt the K.I.S.S. philosophy.
I chew gum, listen to music, and write at the same time: could that be the problem? I also have AADD, BBCC and all that other crap, as well as multiple, multiple personality disorders, and my medication never kicks in before noon: what’s your excuse?
BTW, what brought you out of hibernation all of a sudden? I thought bears slept all winter. Isn’t it time for you to crawl back into your cave?
Posted by: John at November 17, 2005 12:21 PM
Way too long, that post covers to many major topics. When you first read it your blood starts to boil over cameras, crime and vandalism. You mixed local crime, local subject with the federal subject of the Supreme Court. They are intertwined but most people see them as two separate issues. Other issues that you have raised are abortion, same sex marriage, church and state separation. All of these issues are of the utmost concern to the well fair of our country, they all need and should be discussed but they deserve their own post. Abortion init of itself is a monster of a discussion, partial berth, in the case of a rape; these are not topics that should be all mixed in to one post.
Posted by: Uri at November 17, 2005 07:56 AM
The Right to Privacy post is about constitutional law and the nomination of Judge Alito to the Supreme Court, and the impact his potential appointment may have on legal precedents and case law, like abortion rights and the separation of church and state, but I'm glad that my introdcuction brought out some opinion on how people feel about camera Surveillance in fighting crime.
Law enforcement surveillance, or surveillance of civillian populations, is also an important issue with far reaching ramifications for our civil liberties and our freedom to engage in political dissent. It is not as simple an issue as one in which a person can make a fast judgement based on what is conveient and expedient at the time, for pragmatic, problem solving reasons, and not face dire consequences down the road.
But the post is actually about constitutional Law, the right to privacy precedents, and case law, and the current nominee.
Posted by: John at November 16, 2005 10:23 PM
I too wish the police were using authorized video survielance to catch the graffiti vandals and the drug dealers in Mt. Hope. I think it would put an end to a lot of our problems, problems that are blamed on social issues but that would disappear with better, more effective law enforcement.
I do oppose random surveillance of citizens by governmental agencies. If the police want to wire tap someone's phone, they must present evidence of criminal activity to a judge and explain why this invasion of privacy is justified. The judge then rules based on case law and precedent whether the use of a wire tap is justified. This system prevents some abuse of government surveillance.
I've read about the FBI compling dossiers on Martin Luther King and John Lennon and planting agents in Civil Rights organizations and wire-tapping Viet-Nam war protesters. Have you read about the McCarthy witchhunt.
I oppose giving the government carte-blanche to spy on the civillian population without restraint.
Civil rights, civil liberties are too hard to come by and once you give them up it is difficult to get them back. Look at the Patriot Act. It give broad andd scary powers to the government in the name of national security.
It's a slippery slope we start down allowing random, unsupervised video surveillance and in my opinion we should proceed with extreme caution.
Posted by: John at November 16, 2005 01:45 PM
Catch-23
The much maligned CATCH program has held a series of meetings since the spring about "affordable housing." The fallout of these meetings is the idea that all Mount Hope organizations should get together and talk to one another, to develop trust and accountability and really try and deal with the various problems people perceive in the neighborhood rather than staking out territory and duking it out like the kids are doing in their ridiculous "gangs". In October they were generally successful in making the first step: representatives from the Learning Center, the Land Trust, Miriam Hospital, the Mount Hope Neighborhood Association, Brown University, the Vincent Brown Center, Rochambeau Library, The Providence Plan, the Department of Health, other organizations I can't even remember, and Kevin Jackson all attended. Everyone there made a commitment to work together. Just getting everyone in a room I think was quite an accomplishment. I'm not sure yet what this is going to mean for the neighborhood. It's sort of easy to attack groups like this, to decide that they're the enemy. I think it would be more helpful to follow these developments or even to join in on the discussion. The organizer of these meetings has told me she's contacted the GCCC leadership on a few occasions to extend an invitation to attend. I would like to pass on the information to a member who would like to get involved (not someone who would derail the process, but someone who would be willing to attend as a representative of the principles of the GCCC). Mount Hope doesn't need fifteen organizations fighting each other. We're talking about twenty blocks here.
Posted by: Katie at November 16, 2005 11:36 AM
Hiring a private investigator to stake someone out is legal, right? I've often thought it would be nice to hire a professional to sit out on Pleasant Street for a few weeks, taking photographs. How is this different? If you're out doing something in public, you can't expect not to be seen doing it.
Posted by: Katie at November 16, 2005 09:55 AM
I favor camera surveillance, not only to curb graffiti, but also to put an end to drug dealing in the Crossroads. I believe the GCCC should purchase webcams to place on the roof above the convenience store and monitor them. They could be aimed down on the sidewalk in front of the store and attached to my computer. Even though the intersection is just feet away from the District 8 police station, nothing is being done. The police have other priorities, it seems.
Posted by: Peter C. at November 16, 2005 07:39 AM
Yet every police car has a dash camera on board, where is the line? One can go online and view traffic on the 95, is that an invasion? Many cities do have “traffic cams”, if you run a light you are mailed a ticket. If it is ok to have dash cams, can you park a police car with a dash cam to catch graffiti vandals? You seem to give the impression, that it graffiti and traffic are not worthy of cameras, would that mean that other crimes are worthy of cameras? If so please let us all know which are not a “such an invasive and reactionary tactic”?
Posted by: Uri at November 16, 2005 07:09 AM