Privacy in the Information Age

12 April

• Final paper: maximum 20 pp. Should be between 15-20 pp.
• So, IS there a constitutional right to privacy? Maybe there is, in some contexts: reproductive health, e.g. Note that the word "private" does appear in 4A. But even 4A law is highly fact-dependent (see Katz). And it changes, too (new technologies might be adopted).
• There's a physical intrusion in most 4A (patting down, entering the home, etc.), but is there the same sort of thing in reproductive law?
• Note that by not hanging Griswold on 4A, it makes it harder to get around it on a fact-basis. You have to overrule that case.
• Maybe this tells us something about the political power of women, or at least the legislature's relationship with them.
• 4A is the basic assumption that you deserve to be able to keep some things private. But in more recent times, people have been empowered to deal with new things, and as a result, there are new things they want to keep private. So in Griswold, the justices are trying to look at all the constitutional text they can, and find something that will serve the interests of autonomous individuals trying to make reproductive choices for themselves. Well, they couldn't find anything too solid: penumbra. "Without peripheral rights, the specific rights would be less secure." And they cite NAACP v. AL by way of example-- it's not really right of assembly, but the right to express yourself, which isn't 100% 1A, but nevertheless, it was blessed in that case.
• But this is dangerous: the justices only have the facts of the case that is before them. When they announce a new rule, it can have far-reaching consequences, and this might not be the surest way to go about it. On the other hand, we've been finding and filling in holes in the law for centuries: this is just saying what everyone knows is going on.
• Angelo: the court isn't in the vanguard here-- they're lagging behind the waxing public sensitivity to the right of privacy. So this is a "grabby" decision (i.e., they could have dodged it, and the ruling goes beyond the facts), but that's not unprecedented. There was a need to bring constitutional law in line with the way the world was working.
• There can't really be a right to privacy if you can't even define privacy. But you definitely can point to a sensitivity about privacy. And SCOTUS is wily: they don't say Griswold is a contraception case, they cast it as a marital privacy case, which is a much easier thing for all sides to talk about. And they are maybe laying a foundation for future dialog-- they didn't just discover the idea of a penumbra and decide to write some pages about it.
• Remember that a right trumps everything, and that a court may not have sound information to provide a generalized decision: only the opposing party in a suit can provide information about why the right asserted should not prevail (i.e., no research, etc.).
• Still, why move from solid constitutional language into penumbra-land. It's a court that likes civil liberties and wants to expand them. And civil rights are in the forefront of national discourse (with respect to race, at least) in 1967. So if we're doing all this individual dignity rhetoric, maybe it's time to start applying those theories. Still, this was part of a whole series of Warren Court decisions, and should be seen in that context: there was a concerted effort to protect the individual and provide butresses against tyranny (a big theme in the cold war).
• Angelo strikes again: all common law is nebulous. If you want to complain about penumbrae, it's more of an argument against the system itself than it is against this decision.
• Note that some of these rights aren't universal rights (the right to an abortion is particular to women).
• Roe v. Wade was argued twice before SCOTUS. Hilariously bad opening from TX the first time around: attorney starts with a sexist joke. TX changed attorneys after that. And hey: if this is a fundamental right, why doesn't it persist after the first trimester? Well, even fundamental rights aren't absolute: if the state has a compelling justification, it can prevail.
• If there are barriers to exercising fundamental rights (like having to travel far to get an abortion), are they infringed?
• Look at 3A: there's a right that doesn't get used much any more-- at one point it was highly relevant, but now it's not so much. Still the basis was that you as the proprietor of your house should be able to accept or decline guests. Is this right (the right to make decisions about your own body) so fundamentally different? If rights can become less relevant, can they also become more relevant? That would stand to reason. Ahoy! There's 13-15AA.
• Constitution = liberalism + republicanism + democracy. That's sort of an interestingly complex formulation.
• "Decisional privacy:" being able to exclude others from some choices.
• Do Roe and Griswold do decisional privacy a disservice when they cast these issues as family decisions, instead of individual liberty?