Wednesday, April 14, 2010

Law thing I'm chewing on today...

Senator Leahy: Is there a constitutional right to privacy?

(Then)Judge Ginsburg: There is a constitutional right to privacy which consists I think of at least two distinguishable parts. One is the privacy expressed most vividly in the Fourth Amendment, that is, the government shall not break in to my home or office without a warrant based on probable cause; the government shall leave me alone.

The other is the notion of personal autonomy; the government shall not make my decisions for me; I shall make, as an individual, uninhibited, uncontrolled by my government, the decisions that affect my life's course. Yes, I think whether it has been lumped under the label, privacy is a constitutional right, and it has those two elements, the right to be let alone and the right to make basic decisions about one's life course.

-Justice Ginsburg's Confirmation hearings

I am with her on the first right. On the second right, I am conflicted. In the sense that "privacy" is used in an abortion law context to mean, essentially, the right to make your own decisions about your own private affairs, I'm with her. But were we to take "privacy" by what I see as its usual meaning, the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively, I think we can get there through the common law given that Griswold v. Connecticut* more or less set the stage for it, but I'm not sure the right is constitutional exactly.



* Holding that bans on birth control to married people were illegal because of a constitutional right to privacy.


fausto said...

If Griswold sait the right to be left alone is a constitutional right, then you are questioning whether Griswold was correctly decided. Could it be framed as a 10th amendment question -- a power appropriately reserved to "the people" as opposed to the feds or the states?

Paul Oakley said...

I'm always conflicted about issues of constitutionality since there are, as others know far better than never-been-to-law-school I, two kinds of constitutionality which are not always the same:

1) self-consistent logical constitutionality based on actual words on the page and their as-far-as-possible reasonable, non-tortuous, non-ideological, and non-political interpretation; and

2) the Supremes' clearly implied ruling or formal declaration on the constitutionality of something or other before them, as determined in their exercise of the non-constitutionally determined power the Court claimed for itself in Marbury v. Madison in 1803.

It seems that Justice Ginsburg's first take on privacy falls under the first category of constitutionality while her second take on privacy falls, with less sure footing, under the second category of constitutionality.

There seems to me to be a conflict between the exercise of the two kinds of privacy she presents. In the first case, the right to privacy is not absolute (being rightly abridgeable when there is probable cause, when there is, according to legal principles, a likelihood that the privacy is hiding an illegal act.

In contrast, in the second case, the argument is apparently being made that the right to privacy makes the thing hidden behind the veil of privacy legal. E.g., abortion is a constitutional right because it normally and rightly falls behind the veil of privacy.

That makes no sense to me whatsoever. It does make sense to argue that we have a human right of individual autonomy and that there must be an overwhelming public interest at stake before that right may be abridged. Such a right is probably not constitutional in the first sense, but I believe it is a human right.

So those thoughts constitute my non-professional take on the issue. Maybe someone who knows more can point out where I've misunderstood things.

Erin said...

Wouldn't secluding yourself (or revealing yourself) be considered a private affair? And thus the decision to do either would be a constitutional right? In any case, wouldn't the decision be considered constitutional under the 9th & 10th amendments?

Eve said...

What if a state decided to make women who get abortions sign a public registry first?

"The right to make your own decisions about your own private affairs" can sometimes be very difficult to exercise without "the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively."

Joel Monka said...

Fausto is right- Griswold should have been a simple 10th amendment case; nothing in the Constitution, federal or state, gives them the right to legislate your love life. That would have automatically struck down the majority of other blue laws as well; no need for separate decisions about laws forbiding sodomy, even between married couples, etc.

Roe, however, could not have been argued as a simple autonomy issue, because of the issue of whether a fetus is human or not. Deciding it strictly on autonomy would have been a defacto declaration that a fetus is not a human being, which would have called all state laws in which a fetal death or misscarriage as a result of an assault on the mother is called manslaughter into question. It would also have made any restrictions on abortion impossible. So the justices had to do what it was later admitted that they did: decide what they wanted to do, then fumble around for a Constitutional path to the predetermined decision. Privacy was the only path open.

DairyStateDad said...

I find myself wondering about the implications of that for campaign finance law and regulations requiring the disclosure of political donors...

Desmond Ravenstone said...

One influence to consider is an article in the 1890 Harvard Law Review by Louis Brandeis and Samuel Warren, "The Right to Privacy."

The authors wrote the article, arguing for a tort of "invasion of privacy," in response to the increasing use of photographs by newspapers, especially sensationalistic or "yellow" press.
They argued:

"Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society."

And these comments, while addressing contemporary journalism, seem prescient in light of Internet media and cell phone cameras:

"The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

PG said...

Roe, however, could not have been argued as a simple autonomy issue, because of the issue of whether a fetus is human or not. ... which would have called all state laws in which a fetal death or misscarriage as a result of an assault on the mother is called manslaughter into question

Could you cite the state laws that predate Roe and made fetal death due to assault on the mother a case of manslaughter? I've looked at quite a few historical records on abortion prosecutions in places where abortion was illegal, and I don't think I've ever seen one that was for manslaughter against the fetus. Several were for manslaughter against the woman, because prosecutions were most commonly brought in cases of botched abortions that killed the patient.

The question is not whether a fetus is human -- what other species could it be? The question is whether a fetus has the status of a legal person under the 14th Amendment. And since none of the statutory schemes that prohibited abortion anywhere in the U.S. deemed the fetus a legal person (e.g. able to inherit; a victim of murder if killed deliberately; etc.), the justices didn't waste much time in Roe on the issue, because what they were looking at were the states' statutory schemes.

The notion of the fetus as a legal person has arisen only recently as a way to re-criminalize abortion in a society where "rights are trumps," as Dworkin puts it. When abortion could be criminalized primarily as a threat to morals, and secondarily as a threat to women's health (as it genuinely was, prior to hygienic surgical methods), there was little or no talk of the fetus as a legal person. Abortion generally was classed among crimes against morality such as contraception, sodomy, adultery, etc.

I don't think I've ever seen anyone work through all the implications of considering legal personhood to commence at conception. E.g., would a person holding the proverbial test tube with an embryo in it, who then accidentally dropped that test tube due to wet fingers and thus destroyed the embryo, now be prosecutable for negligent homicide?

I like Desmond's citation to the Brandeis article, which is pretty seminal in discussion of "privacy" in the sense of protection from intrusion even by non-state entities such as newspapers. But by that token, I don't see how it can have anything to do with the Fourth Amendment, which like the rest of the Bill of Rights protects us against the government, not against our fellow citizens.

Joel Monka said...

The manslaughter cases I was refering to had nothing to do with abortion. I was thinking of cases such as one here in Indianapolis where a bank robber shot a clerk; he was charged with assault against the mother and murder of the child she was carrying. That was not an attempt to recriminalize abortion.

PG said...

That was not an attempt to recriminalize abortion.

When was the statute passed? If it was after Roe, then it's more likely to be part of the long-running campaign to deem the fetus a legal person where it never had been before.