At this moment, in this country, Supreme Court decisions, lower court decisions, as well as ten state constitutions have established constitutional rights of privacy. These rights of privacy are specifically quantified and yet they fall short of establishing a constitutional right to privacy due to the provisions that allow that right to be invaded by prescription of law. The authority given to law enforcement to invade the privacy of any citizen is laid out clearly in the Third, Fourth, and Fifth Amendments. These legal invasions eliminate an absolute right of privacy for all American citizens due to their inability to deter or prevent that right being violated. Thus, the quantified rights of privacy have been established to protect “the realm of guaranteed privacy” (Kyllo v. United States 533 U.S. 27 (2001) 34) implied in the Fourth and Ninth Amendments to the Constitution.
Establishing the difference between an absolute right of privacy and quantified rights of privacy, it must first be determined that the very concept of privacy is only mentioned once in the Constitution. The Fifth Amendment ends with, “…nor shall private property be taken for public use, without just compensation.” (U.S. Const., Amend. V) Privacy, constitutionally, was only specifically attached to the ownership of property and yet the invasion of a citizen’s privacy was declared permissible in multiple Amendments. In the Third Amendment, soldiers could be quartered in a private citizen’s home without his or her consent if it were prescribed by law. (U.S. Const., Amend. III) In the Fourth Amendment, the security of a person and his or her effects could be violated by law enforcement with probable cause. (U.S. Const., Amend. IV clause 1) In the Fifth Amendment, a person can be deprived of life, liberty, and property with due process of law. (U.S. Const., Amend. V) Therefore, the very word private is only written in the Constitution concerning the government being enabled to take private property for public use, while privacy is only implied where violation is allowed.
Even though the Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (U.S. Const., Amend. IX) This clarification leaves no room for an absolute right to privacy due to the necessity of prescription by law held throughout the Constitution. In Antifederalist No. 84, On the Lack of a Bill of Rights, the Anti-Federalist Papers that pleaded for a bill of rights, made no room for privacy as a specific right as well.
“But rulers have the same propensities as other men; they are as likely to use the power with which they are vested, for private purposes, and to the injury and oppression of those over whom they are placed, as individuals in a state of nature are to injure and oppress one another. It is therefore as proper that bounds should be set to their authority, as that government should have at first been instituted to restrain private injuries.” (Hamilton 2009 pp.750-1)
Thus, the text that demanded and outlined a bill of rights to be attached to the United States Constitution, privacy’s only reference was, “…to fix barriers against the encroachments of their rulers.” (Hamilton 2009 p.751) Washington State’s Constitution, although specifically mentioning privacy, follows the same balancing agenda. “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” (NCSL 2013) An encompassing right to privacy cannot be given where people are socially compacted to one another and needing to be controlled by government.
All the aforementioned documents broadly encouraged protections for individuals from the overwhelming force of their government and left the remedies for all unforeseen conflicts vested in the sovereign power of its people, represented by the executive and legislative branches and constitutionally kept in check by the judiciary. In order to secure the blessings of liberty, the United States of America must also insure domestic tranquility, establish justice, and promote the general welfare. (U.S. Const., Preamble) Examining the struggle to balance these guidelines, Warren and Brandeis wrote an article in their era that illustrated the conflict between the freedoms of speech and of the press expressly articulated in the Constitution and the natural right to privacy only implied in the Constitution. “For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons ; and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer.” (Warren 1890 p.195)
The Law, being able to provide remedies and bring natural rights into the social compact, is the seed planted by this article in the late 19th Century. Offering a forum for manifesting very specific and at times individualistic rights to remedy wide spread problems in society gave the American people the option of possessing the power necessary to limit their government in a manner that would expand their realm of privacy. The guiding principle rooted in the groundwork of our founders was to limit government and protect the political process, but making an absolute right to privacy, removing the government’s ability to lawfully, constitutionally, control its people, would undermine the strength of the government that has so many duties to secure, protect, and provide. “A legal right to control is control which is the least open to question and argument; it is the kind of control we are most serious about.” (Fried 1968 p.493) Controlling the government’s power over its people has never been in question but giving reasonable control to the people has become less open to argument due to Supreme Court decisions.
Moving from the implication of privacy to quantifying privacy in Constitutional law, complications automatically are triggered. “It is less clear how these concededly fluid societal norms could be embodied cleanly in constitutional law.” (Kreimer 1991 p.141) Instead of creating a “right to privacy”, the Supreme Court has attempted to create penumbras, zones, and realms of privacy. “When Justice Douglas wrote for the Supreme Court, in Griswold v. Connecticut, that various constitutional guarantees create “zones of privacy,” he was quite right in pointing out that the Court was dealing “with a right of privacy older than the Bill of Rights.” Indeed, “zones of privacy” can be found marked off, hinted at, or groped for in some of our oldest legal codes and in the most influential philosophical writings and traditions.” (Konvitz 1966 p.272)
Is Brandeis’ dissent in Olmstead v. United States (1928) the starting point for a justifiable right of privacy?
“They (the makers of our Constitution) conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” (Olmstead v. United States 277 U.S. 438 (1928) 478-9) Is Justice Harlan’s concurring opinion in Katz v. United States (1967) the midpoint of a reasonable expectation of privacy? “A person has a constitutionally protected reasonable expectation of privacy.” (Katz v. United States 389 U.S. 347 (1967) 361)
Whether it is the consideration in Kyllo of the “physical intrusion into a constitutionally protected area” or Katz’s “what he seeks to preserve as private even in an area accessible to the public may be constitutionally protected” both cases and all cases since, have attempted to balance the need for liberty of the individual with the needs of the government. To stay within the four corners of the Constitution, honoring privacy can never be absolute, at the same time, unjustifiable violations of privacy can never become the norm. There is not an absolute right to privacy in the United States because individuals cannot deter or prevent its violation. However, there are true restrictions on violating an individual’s privacy and many remedies after the fact.
Work Cited
Fried, Charles (1968, Jan.) Privacy Yale Law Journal, Vol. 77, No. 3 pp. 475-493
Hamilton, A., Jay, J. Madison, J (2009) the complete Federalist and anti-Federalist papers New York: Classic Books America
Kasper, Debbie V. S. (2005, Mar.) The Evolution (Or Devolution) of Privacy Sociological Forum Vol. 20, No. 1 pp. 69-92
Konvitz, M. R. (1966) Privacy and the law: A philosophical prelude Law and Contemporary Problems Vol. 31(2), pp.272-280
Kreimer, Seth F. (1991, Nov.) Sunlight, Secrets, and Scarlet Letters: The Tension between Privacy and Disclosure in Constitutional Law University of Pennsylvania Law Review, Vol. 140, No. 1 pp. 1-147
NCSL – National Conference of State Legislatures (2013) Privacy Protections in State Constitutions http://www.ncsl.org/issues-research/telecom/privacy-protections-in-state-constitutions.aspx Retrieved 02/15/2013
Warren, Samuel D. Brandeis, Louis D. (1890, Dec. 15) Right to Privacy Harvard Law Review, Vol. 4, No. 5 pp. 193-220
Betty J. Craipo 