Abstract
The word privacy does not appear in the constitutional text. No one mentioned the term at the Philadelphia Convention, nor was there any reference to it during the debates over the Bill of Rights. Nonetheless, privacy is a key feature of modern constitutional law. Numerous cases decided by the Supreme Court invoke the concept to talk about a personal interest in seclusion; others classify it as an interest in shielding data from public scrutiny; still others classify it as an interest in exercising autonomous decision-making in everyday life. In accounting for privacy’s role in modern constitutional doctrine, this book emphasizes the mutually reinforcing effect of the three types of privacy just mentioned. Privacy, it suggests, is an umbrella term that embraces each of the components just mentioned. It’s possible to sever each component from the others: for example, someone might conceivably be willing to forgo control over the informational sources of her life while nonetheless insisting on living her life autonomously. But while this can be imagined, it is highly unlikely, for the three components of privacy are quite clearly components of a conceptual whole—and so merit consideration in light of their synergistic relationship with one another.
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Notes
- 1.
The leading case is Katz v. United States, 389 U.S. 347 (1967).
- 2.
See, e.g., Roberts v. Jaycees, 468 U.S. 609 (1984).
- 3.
See Tehan v. United States ex Rel. Shott, 382 U.S. 406 (1966).
- 4.
See Griswold v. Connecticut, 381 U.S. 479 (1965).
- 5.
For a classic study that relies on this concept, see Erik H. Erikson, Identity: Youth and Crisis (1968).
- 6.
Erving Goffman appears to have coined this term, which has now become a part of everyday discourse. See his The Presentation of Self in Everyday Life (1959).
- 7.
See Eric Klinenberg’s Going Solo: The Extraordinary Rise and Surprising Appeal of Living Alone (2012).
- 8.
For a survey of trends, see Carla I. Perdone, The Challenges Facing Federal Rental Assistance Programs 39–41 (1994).
- 9.
See Elaine Taylor May, Great Expectations: Marriage and Divorce in Post-Victorian America (1980).
- 10.
For a self-help book concerning this, see Michelangelo Signorile, Outing Yourself: How to Come Out as Lesbian or Gay to Your Family, Friends, or Coworkers (2012).
- 11.
Other commentators have suggested that privacy has multiple, severable components. For example, James Whitman states that “[t]here is no such thing as privacy as such” (James Whitman, “The Two Western Cultures of Privacy: Dignity Versus Liberty,” 113 Yale Law Journal 1151, 1221 (2004)) and Daniel Solove insists that privacy is “a plurality of different things” (Daniel Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security 24 (2011)). One thus might say that privacy is a term that “evokes a cluster of ideas, rather than a sharply chiseled concept” (Peter Galison and Martha Minow, “Our Privacy: Ourselves in the Age of Technological Intrusions,” in Richard Ashby Wilson, ed., Human Rights in the War on Terror 258, 269 (2005)) provided allowance is made for the complementary relationship between the severable components of the concept. Furthermore, one can also distinguish, as Thomas Crocker helpfully does, between shallow and deep privacy (Thomas Crocker, “Ubiquitous Privacy,” 66 Oklahoma Law Review 791, 796 (2014)), provided the complementary nature of the different types of privacy is borne in mind. Edward White is the commentator who has come closest to endorsing the position taken here that insists on complementary facets of privacy. “Privacy,” he writes, is understandable in terms of “the autonomy of one’s person and one’s interest in being secluded” (G. Edward White, Patterns of American Legal Thought 47 (1978)). Helpful as White’s comments are, it’s unclear why he failed to mention control over the informational sources of one’s life. After all, he proposed his definition a decade after the Court resolved Katz v. United States.
- 12.
See Federalist 39 240 (Clinton Rossiter, ed., 1961), where Madison speaks of “the plan of government reported by the Convention.”
- 13.
Griswold v. Connecticut, 381 U.S. 507, 510 (1965) (Black, J., dissenting).
- 14.
In Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court self-interestedly assigned itself the role of final interpreter of the Constitution’s meaning. There is nothing in the text that directly supports this claim. Indeed, President Jackson adopted a “departmental theory” of the Constitution. On Jackson’s account, the Court has “no more authority over Congress than the opinion of Congress has over judges, and on that point the President is independent of both” (“Veto Message of July 10, 1832,” in James Richardson, ed., A Compilation of the Messages and Papers of the Presidents 576, 582 (1907)).
- 15.
In Federalist 77, Hamilton asserts, in the face of textual silence on the issue, that the “the consent of [the Senate] would be necessary to displace as well as appoint” cabinet members. See supra note 12, at 459. The First Congress did not adopt Hamilton’s position.
- 16.
See NAACP v. Alabama ex rel. Patterson, 357 U.S. 460 (1958) for an early case in which the Court reasons in terms of an implied right of freedom of association.
- 17.
See United States v. O’Brien, 391 U.S. 367 (1968) for a case that reasons in terms of an implied right of freedom of expression.
- 18.
See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), for a case that reasons in terms of an implied equal protection right that can be asserted against the federal government.
- 19.
Christopher Tiedeman inaugurated discussion of this subject in The Unwritten Constitution of the United States (1890). Thomas Grey’s “Do We Have an Unwritten Constitution?” 27 Stanford Law Review 703 (1975) prompted modern scholarly interest in it. Akhil Amar is a contemporary proponent of the unwritten constitution thesis. See his America’s Unwritten Constitution: The Precedents and Principles We Live By (2012). Because Amar treats the text as a platform for moving from the said to the unsaid, it might be argued that his thesis is compatible with what I call interpretive supplementation. But Amar includes more than this in his discussion of the unwritten constitution. For instance, he speaks of “bedrock ideas from the Warren Court era” as components of his term (see id. 595, n. 9). I thus avoid his terminology while emphasizing, as he does, the long-standing tradition of adding unmentioned rights and powers to those enumerated in the text.
- 20.
In this respect, the inquiry here complements the one into everyday understandings of the law undertaken by Patricia Ewick and Susan Silbey in The Common Place of Law: Stories from Everyday Life (1998). My concern is with the high officials’ construction of legality whereas Ewick and Silbey are concerned with citzens’ everyday practice. Like them, though, I focus on “legality [as] an emergent feature of social relations…” (Id. 17).
- 21.
For an examination of President Truman’s 1948 executive order, see Morris MacGregor, Integration of the Armed Forces, 1940–1965 (1985).
- 22.
347 U.S. 490 (1954).
- 23.
Johnson’s entries for plan (as noun) are “a scheme, a form, a model.” See 2 Samuel Johnson, Dictionary of the English Language 354 (2nd ed. 1755). Webster provides two definitions of plan (as noun): (1) “a draught or form” and (2) “a scheme devised.” See his American Dictionary of the English Language (1828) at www.1828.mshaffer.com/d/word/plan.
- 24.
Indeed, there was a body of law that permitted nontrespassory warrantless electronic surveillance of phone conversations. The leading case was Olmstead v. United States, 277 U.S. 438 (1928).
- 25.
Katz, 389 U.S. at 352, overruling Olmstead.
- 26.
Katz at 361 (Harlan, J., concurring).
- 27.
I use solitude rather than isolation, but each connotes the possibility of being alone without relying on an exclusionary practice. An examination of privacy that contrasts it with isolation can be found in Julie Inness, Privacy, Intimacy, and Isolation (1996).
- 28.
It’s thus significant that statutes are framed in terms of corporate and government secrecy, not in terms of corporate and government privacy. See, e.g., 18 U.S.C. 1832 (“Theft of Trade Secrets”).
- 29.
In distinguishing between vigilance and forbearance models of informational privacy protection during the course of the book, I draw on William Heffernan, “Fourth Amendment Privacy Interests,” 92 Journal of Criminal Law and Criminology 1 (2001).
- 30.
Bond v. United States, 529 U.S. 334 (2000).
- 31.
The Court addressed this issue in Cruzan v. Director, Mo. Department of Health, 497 U.S. 261 (1990).
- 32.
The Court considered this issue, in the context of a challenge to a zoning regulation, in Moore v. City of East Cleveland, 431 U.S. 494 (1977).
- 33.
Lawrence v. Texas, 539 U.S. 558 (2003).
- 34.
United States v. Jones, 132 S.Ct. 945 (2012).
- 35.
Riley v. California, 134 S.Ct. 2473 (2014).
- 36.
This point is examined at length in William Heffernan, “Constitutional Historicism: An Examination of the Eighth Amendment Evolving Standards of Decency Test,” 54 American University Law Review 1355 (2005).
- 37.
Philippe Nonet and Philip Selznick speak of “responsive law,” an apt label for the study of interpretive supplementation undertaken here. See their Law and Society in Transition: Toward Responsive Law (1978).
- 38.
Omychund v. Barker, 1 Atk. 21 (1745).
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Heffernan, W.C. (2016). Introduction. In: Privacy and the American Constitution. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-43135-2_1
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