Positive Liberty

Given the interpretation of the Ninth Amendment that the PL bloggers all seem to endorse, it follows either that a right to privacy is directly a part of the Ninth’s unenumerated rights–or else that we do not have a right to privacy at all. Post-classical liberals make a vulgar error when they found this right on the “emanations and penumbras” that emerge from various sections of the Bill of Rights. Accordingly, Griswold and Roe were rightly decided as to their outcomes, but wrong in their legal reasoning.

Similarly, by making arguments that undercut the emanations-and-penumbras approach, conservatives are not so much destroying the right to privacy as they are destroying a rather weak and ancillary argument in its favor, one that the right to privacy could perhaps do very well without. (Incidentally, Randy Barnett discusses privacy on pages 230-32 of Restoring the Lost Constitution, but I plan to take this discussion in a rather different direction.)

Given the vagueness of the Ninth Amendment, why should we presume that a right to privacy exists at all? Why is there some right to privacy, rather than no right to privacy?

To my mind, these questions have a surprisingly conservative answer: The right to privacy exists because a concern for privacy has always been at the heart of anti-authoritarian critiques in western theories of government. It has been found through long experience that eroding the sphere of individual privacy around each citizen can only result in more arbitrary and tyrannical governments. Tyrannical–because the post-classical liberals are at least half right, and because privacy participates in the exercise of all our other rights. Arbitrary–because a deprivation of the right to privacy is seldom systematic or uniform, and because a regime that operates without a presumed right to privacy will violate that right only some of the time, while leaving intact the privacy of the rest of its citizens. To operate a government without a right to privacy, then, is to deprive all citizens of equal justice before the law.

Our Constitution aims precisely to participate in the anti-authoritarian tradition of which I speak. It aims further to establish a limited government under which all citizens enjoy legal equality. Accordingly, some form of privacy is absolutely necessary if we would be faithful to the original meaning of the Constitution.

Indeed, after only a few moments’ thought, it becomes apparent that the real fight over the right to privacy is not at all whether some such a right exists: It is merely a question of where to draw the appropriate boundaries of the right. We doubt, for instance, that conservative Supreme Court justices would consent to being strip-searched daily before entering the courtroom; we doubt likewise that religious conservatives would consent to violating the confidentiality that exists between pastor and penitent, even if violating it meant catching many more criminals.

“But wait,” you say, “those are cases covered by the enumerated rights.” Very well. But the mere fact that they are enumerated does not mean that they are any less a part of a larger right to privacy. And particularly in my second example, I might object that the secret of confession is nowhere enumerated in the Constitution; we ought not to imagine that the phrase beginning “Congress shall make no law…” can be stretched, through nothing more than strict constructionism, to encompass it. On the contrary, it seems impossible to sustain this secret without recourse to some variant on a right to privacy: For if Congress were to pass a law decreeing that all people who knew of a criminal act had a duty to testify about it, we could in no sense say that the law abridged religion in particular. The law speaks neither of sin, nor salvation, nor God, nor creed. It’s only about crime, after all, and in the scenario we are examining, the state has a right to pursue crime free from all considerations of privacy. As these examples suggest, a government without any right to privacy would necessarily become tyrannical.

Another way of understanding how a right of privacy serves to limit the authority of our government is simply to consider what our situation might be like without any such right. On doing so it quickly becomes clear that infringements on the right to privacy are inevitably arbitrary, that they are enforced only against a certain subset of the population, and that they therefore represent a de facto inequality before the law.

For example, imagine a regime in which all of our generally accepted rights were protected–but not the right to privacy in any sense whatsoever. In this regime, the government installs security cameras inside each so-called “private” home. The daily activities of all citizens are recorded continually, with the presumption not only that they will be useful in the event of a crime, but that the review of the tapes itself is one of the legitimate powers of government. (If the tapes were reviewed only in the case of suspected crimes, we would have a regime not entirely unlike our own, with the only exception being that the extensive surveillance system would be wide open to the abuses I will shortly describe.)

It is immediately apparent that, even presupposing a legitimate governmental power to review this data, all of it could not possibly be reviewed no matter how large the data-review bureaucracy became. Would this not be an overwhelming incentive for abuse, for discrimination, and for blackmail? And wouldn’t these practices, and even the reviews themselves, inevitably fall on some identifiable class of citizens, presumably one that the bureaucracy didn’t like? Indeed, given the enormous task before them, the data-review bureaucrats would inevitably be drawn toward any expedient they could imagine to reduce their workload. And since, for instance, there is a demonstrably higher crime rate among African-Americans, why should they not operate more efficiently by reviewing only the tapes from the homes of black people?

Lest my example seem farfetched, let’s bring things back to the real world. Consider sodomy laws, which only recently were repealed–and properly I might add, by identifying the liberty interest of all Americans to be left rightfully alone. While sodomy laws were still in force, their provisions fell disproportionately on the unmarried, on homosexuals, or on individuals who had committed other crimes–in short, on people who did nothing peculiar to the act of sodomy for which they were allegedly being prosecuted. Because any equal enforcement of the law necessitated the massive violation of privacy, it could only be enforced sporadically, and then only against certain subsets of the population.

The overwhelming majority of offenders were never punished, and there was a direct, meaningful correlation between unequal governmental suspicion, an unequal violation of individuals’ privacy, and an unequal judicial outcome. Just as a law requiring testimony from everyone, regardless of religious injunction, violates the right to privacy only as regards Roman Catholics, so too the laws forbidding sodomy effectively punished only certain segments of the population, creating an inequality before the law.

Heterosexuals were virtually never prosecuted for sodomy, not unless they had committed rape, incest, or some other properly punishable crime (But then–shouldn’t the punishment for that crime be sufficient? Why add to it the further punishment that they must face a law to which their neighbors are generally immune? If the laws against rape, for instance, are insufficiently strict, then let them be made more strict in an equal manner, not in one that additionally punishes only some of the rapists). Because sodomy prosecutions were essentially and necessarily opportunistic, they represented an inequality before the law, one which the right to privacy ought to prevent.

I believe that these examples do a good deal to establish that the right to privacy exists at least in some form–and further, that the precise boundaries of this right should be arrived at through a process of legal and historical reasoning, grounded in tradition and in a proper understanding of what rights are supposed to accomplish in a liberal social order. A key principle to follow is that privacy helps establish not only our enumerated rights, but also equal treatment before the law, the pursuit of happiness–and the limitations that are necessary to prevent any government from becoming tyrannical.

I don’t expect this process of reasoning will be automatic, or that judges alone will be able to arrive at its end point with perfect clarity. In a (properly) mixed system of government, democratic and aristocratic impulses should collaborate in reaching a just outcome; our judges are the aristocracy of the law, our juries, the democracy, and together they should sort these things out with all the salutary conflicts that the sorting process implies. An explanation of the principle is a beginning, not an end.

And, if I may be forgiven, this blog is also a mixed system of government–and the aristocracy has clearly had its say for the moment. What do the rest of you think?

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