The Constitution's Private Parts

In a New York Times op-ed today, Dan Savage suggests that we do away with one source of controversy in Supreme Court nominations by amending the Constitution to explicitly create a right to privacy, ending much debate over just which penumbras it emanates from. The idea certainly has some appeal: Even those of us who applaud the upshot of Griswold and its progeny will admit that a lot of the cases in this line—Roe in particular—rest on legal reasoning that often seems shaky.

Savage does hint in the direction of a problem with this approach, though I think it's a more serious one than he recognizes. He writes:

Of course, passing a right to privacy amendment wouldn't end the debate over abortion—that argument would shift to the question of whether abortion fell under the amendment.

Yes indeed. What, after all, is the "right to privacy," and what does it encompass? George Washington University law prof Daniel Solove attempts a taxonomy of privacy in an excellent law review article published earlier this year (of which LawMeme has a handy summary), and what's striking is just how many disparate components it comprises. But we needn't split hairs quite so finely. In Katz, in which the Supreme Court adjusted its understanding of the Fourth Amendment to compensate for the emergence of technologies that could "search" without physical intrusion, it has increasingly come to protect Secrecy as well, as have various statues governing, e.g., medical privacy. Decisions protecting the right to abortion, or creating a protected sphere of sexual liberty, fall more squarely under the rubric of privacy as Autonomy.

Obviously, these are linked concepts. The Latin root "privatus" signified both isolation (hence "privation" and "deprived") as well as that which belonged to the individual—in the personal sphere as opposed to the public. That notion of a protected sphere—whether physical, informational, or decisional—cuts across all three. But taken together, they cover a huge amount of territory.

The actual line of privacy cases is actually probably better described as covering a territory of sexual and medical liberty—as Posner has quipped, if the Lochner court had only appealed to "privacy" instead of "substantive due process," they might have had a better go of it. It's still a nebulous concept, but its origins in case law serve to anchor it to some degree. But imagine some future jurist trying to interpret a "right to privacy" amendment on the basis of, say, an "original public meaning" standard. Which meaning would she latch on to? The problem is precisely that "privacy" has so very many colloquial meanings. I'm all for protecting each of the kinds of privacy Posner discusses, but we'd be smart to do it with a bit more specificity and precision.