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What Social Animals Owe to Each Other

Tuesday, June 28, 2022

Dissolving the Inkblot: Privacy as Property Right

Foreword: I wrote this article when I worked for the Cato Institute in the early 1990s. I post it here because I think it is relevant to the recent Supreme Court decision on abortion in Dobbs v Jackson and other landmark cases, including those concerning contraception and gay rights. I could write a critique of my own thesis today, but I still think it is worth sharing in light of the raging controversy regarding the constitutional status of privacy. Where I’ve used the word liberal, please imagine I wrote progressive. I prefer to reserve the word liberal for those — in contrast to progressives and conservatives — who embrace all the implications of self-ownership.

No question in jurisprudence is as muddled as that of privacy. Conservatives refuse to recognize a general legal right to privacy. Big‐​government liberals misconstrue the concept and apply it arbitrarily and opportunistically. They would protect a woman’s decision to abort a fetus but not two business competitors who wished to discuss their pricing strategies.

The dominant liberal and conservative approaches to privacy are unsatisfactory because they are essentially unprincipled. Liberals, such as Laurence Tribe, envision a right of privacy radiating from express provisions of the Constitution, but that right is so narrow that it is self‐​subverting. Conservatives, such as Robert Bork, reject that vision of a right to privacy because they believe that the method used to find it will allow judges to invent rights. Conservatives seem to assume that there is no alternative vision. But there is an alternative vision, one that derives privacy rights from a Lockean framework based on each person’s property in his own life, liberty, and estate.

The Liberal‐​Conservative Debate

The right of privacy as a legal matter moved onto its current track in 1890 in a famous Harvard Law Review article by Louis Brandeis and Samuel D. Warren. Previously, the right to privacy had been seen in England and America as derived from the right to property and the right to make contracts. Brandeis and Warren thought that view too restrictive (it could not stop newspaper gossip columnists) and speculated that what underlay older court decisions was a general right to be left alone. “The principle,” they wrote, “is in reality not the principle of private property, but that of an inviolate personality.” According to that view, the principle manifests itself, for example, in the right of a person to control disclosure of facts about himself even when those facts have been lawfully discovered by others. The right to privacy was thus loosened from its property anchor and allowed to float more or less free. Brandeis and Warren’s splitting of privacy and property foreshadowed future invidious divisions of rights by various Supreme Courts, divisions that once favored narrowly construed economic over noneconomic rights but that since the New Deal have done the opposite.

The landmark privacy case in American constitutional jurisprudence is Griswold v. Connecticut (1965), in which the U.S. Supreme Court struck down a Connecticut law prohibiting the use of contraceptives. In the Griswold decision the separation of privacy and property is palpable, as can be seen in Justice Arthur Goldberg’s concurring opinion. “Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre‐​eminence as the seat of family life.”

Although not the first case to protect some notion of a right to privacy, Griswold shaped subsequent Court thinking and led directly to Roe v. Wade (1973), which established a limited constitutional right to abortion. It also set the terms that, ironically, led a conservative‐​dominated Court to uphold a Georgia law against sodomy in Bowers v. Hardwick (1986).

In Griswold, Justice William O. Douglas found that the ban on the use of contraceptives by married couples unconstitutionally intruded into a “zone of privacy”-the marital relationship‐​that is implied by a combination of several express guarantees in the Constitution. Douglas, writing for the majority, penned an immortal phrase when he stated that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

Using Court precedents, Douglas argued for a right of privacy as one of those penumbral rights.

Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self‐​Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

In his concurring opinion in Griswold, Goldberg cited Justice Brandeis’s dissent in Olmstead v. United States (1928). The Framers, Brandeis wrote, “conferred, as against the government, the right to be let alone‐​the most comprehensive of rights and the right most valued by civilized men.” According to Goldberg, only “fundamental rights” were protected in the zones of privacy. To the question, Which rights are fundamental? Goldberg replied that judges should not turn to their personal notions. “Rather, they must look to the ‘traditions and [collective] conscience of our people’ to determine whether a principle is ‘so rooted [there] … as to be ranked as fundamental.’ ”

Other concurring justices preferred to strike the Connecticut law on the ground that it violated the section of the Fourteenth Amendment that prohibits states from depriving persons of life, liberty, or property without due process of law. Those justices revived the old, and unfortunately abandoned, idea of substantive due process, but they applied it only to noneconomic rights.

For a majority of the Supreme Court, it was but a short jump from Griswold to the controversial ruling on abortion in Roe. Justice Harry Blackmun, writing for the majority, said, “This right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Yet Blackmun disagreed with the appellants that the woman’s right is absolute. He wrote that the state “may properly assert important interests” related to, among other things, the protection of potential life and that “at some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.”

The minority opinions in Griswold went to the heart of Douglas’s and Goldberg’s methods. Justice Hugo Black disputed the substitution of the “broad, abstract and ambiguous” term “privacy” for the more concrete language of the express guarantees in the Bill of Rights. “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” Similarly, Justice Potter Stewart wrote, “With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.”

It is the liberals’ ad hoc reasoning in those cases that gives plausibility to the criticism of the liberal Court by Robert Bork and other conservatives. In The Tempting of America, Bork notes that the concern with marriage in Griswold was later dropped in Eisentadt v. Baird (1972) when the issue shifted to the use of contraceptives by unmarried people. Given the mercurial way in which the liberals incrementally unveiled their right to privacy, it was impossible to know what would come next.

Bork does not object to the idea of penumbras emanating from the Bill of Rights; he just does not believe that any of the statutes stricken in the privacy cases violated so‐​called penumbral rights. Nor does he wish to defend the anti‐​contraception statute. His focus is on the legal argument and how it creates “an unconfinable judicial power.” “No matter what your moral views on any of these matters [dealt with in the privacy cases],” he writes, “nothing in the Constitution addresses them.”

To the liberal claim that laws against contraception and abortion fall to the due process clause of the Fourteenth Amendment, Bork responds that due process refers only to procedures and that “substantive due process” is a contradiction in terms. Finally, Bork finds no case for privacy in the Ninth Amendment, which he says is as obscure as it would be had an inkblot covered it on the original parchment.

Where the Liberals and Conservatives Go Wrong

To understand where the Court’s majority went wrong in Griswold, one must distinguish the method of interpretation from its application. Douglas’s method was to look for the logical implications (which is how I read “penumbras formed by emanations”) of the express guarantees in the Bill of Rights. As Douglas put it when he agreed with an earlier Court that the right of association can be found in the First Amendment, “While it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful.”

That is sound as far as it goes. The problem is not the penumbras but that Douglas found only what he wanted to find and no more. (In 1965 he found a right to marital privacy, but in 1942 in Wickard v. Filburn he could not find a right to grow wheat on one’s own land even for one’s own use.) For Douglas, the penumbras contained so‐​called personal, noneconomic rights relating to speech, press, religion, and the like. Yet other zones of privacy are logically covered by the same guarantees that Douglas used; those zones relate to economic activities. Since the Constitution refers to property several times, it is hard to see how a right to privacy emanating from those guarantees can exclude commercial matters, such as a discussion of prices by competitors. Besides, all “personal rights” require the use of property, if only a place to stand, and hence are “economic rights” as well. One cannot distinguish economic from personal rights on the ground that only the former have third‐​party effects. So do personal rights. Bork is correct when he says in reference to sodomy that “knowledge that an activity is taking place is a harm to those who find it profoundly immoral.” The point is that it is a “harm” (a subjective state in someone who objects) that does not violate anyone’s rights. The same is true of price “fixing.” (The Constitution’s interstate commerce clause is not properly read as a plenary power to regulate commerce since it is constrained by other clauses.)

The arbitrariness of Douglas’s reasoning in Griswold can be seen in his “notions of privacy surrounding the marriage relationship.” As he put it, the case concerned “a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship.” He apparently would have had no problem with a ban on only manufacture or sale because enforcement would not have required searches of the marital bedroom.

Note the arbitrariness: First, the marital relationship was deserving of protection, but commercial relationships were not. Second, for Douglas, some ways of intruding on the marital relationship were apparently permissible, as long as they had less than “maximum destructive impact” on the relationship. While the state may not barge into the bedroom looking for contraceptives, it may outlaw their manufacture and sale to make sure they never get to the bedroom. But that is only a less hamhanded form of disrupting the marital relationship.

Third, Douglas excluded unmarried couples from protection. It was left to a later Court to extend the protection to them. In Eisenstadt the Court broadened the right to privacy on the ground that a married couple consists of individuals, and all individuals, married or not, face the fundamental decision of whether or not to have children.

The conservatives have their problems as well. Stewart and Bork demand to know what specific guarantees in the Bill of Rights are violated by a state law against contraception or abortion. They do not accept the holistic reading of the Constitution that the identification of penumbral rights entails. “Nobody has ever quarreled with the proposition that certain zones or aspects of privacy or freedom are protected by the Constitution,” writes Bork. But finding those zones in particular guarantees is not the same as finding a general right of privacy in the penumbras, which, Bork says, only creates a “loose cannon in the law.” The Roe Court “did not even feel obliged to settle the question of where the right of privacy or the subsidiary right to abort is to be attached to the Constitution’s text,” Bork complains. He finds the various references to implicit liberty and the nation’s traditions “pretty vaporous stuff.”

Thus, he applauds the Court’s upholding of a Georgia law against sodomy in Bowers (1986). The conservative majority refused to apply the principles of the earlier privacy cases because homosexual sodomy had nothing to do with family, marriage, procreation, or the nation’s history and tradition. (The liberals were hoist with their own petard. As does unpopular speech, untraditional ways of living most need protection.)

Bork’s real objection is to any holistic reading of the Constitution. Instead, he favors what John Hart Ely called a “clause‐​bound interpretation.” The idea is to read each guarantee in the Bill of Rights as if no others existed, taking care not to acquire any cumulative sense of what the Framers had in mind. That is a dubious theory of interpretation, but in at least one case Bork is not “clause‐​bound” enough: he prefers to read the Constitution as if the Ninth Amendment were not there. (Conversely, the liberals who abhor clause‐​boundedness do not mind reading the commerce clause that way. That clause must be read in the full context of the general protection accorded property in the Constitution.)

Finally, the conservatives reject substantive due process, which they see as a contradiction in terms that authorizes judges to legislate. If the term sounds odd, it would be odder still to dismiss the idea. As Roger Pilon writes, “By ‘law’ [in due process of law] the drafters could hardly have meant mere legislation or the guarantee would have been all but empty.” In other words, if a legislature may “duly” pass any substantive law it wishes, life, liberty, and property are hardly secure. Substantive due process is an indispensable restraint on legislative caprice.

Thus, both the liberals and the conservatives misunderstand privacy. The conservatives engage in a narrow and unnatural reading of the Constitution in order to avoid seeing what they do not wish to see, while the liberals find in the Constitution not penumbras but a Rorschach test that reveals only what they wish to see. In both cases it comes down to an inkblot. Both approaches allow their adherents to disparage most freedoms and exalt the few freedoms allowed by their respective moral and political philosophies.

Propertarian Privacy

Fortunately, there is a coherent, objective alternative to the liberals’ arbitrary right of privacy and the conservatives’ crabbed, clause‐​bound notion of constitutional freedom. It is a model of privacy re‐​anchored in natural property rights (beginning with self‐​ownership). That the propertarian model of privacy has the full force of the Constitution behind it is evident in the purposes listed in the preamble to the Constitution, in the recurring express references to property, and in the protection of unenumerated rights in the Ninth Amendment.

The notion of propertarian privacy is unabashedly based on a holistic reading of the Constitution. As Justice John Marshal Harlan said, the rights in the Bill of Rights are not a “series of isolated points” but “a rational continuum.” When one begins with the preamble; proceeds through the delegation of limited federal powers and on through the Bill of Rights, including the guarantee of unenumerated rights and the Tenth Amendment’s reiteration of the limitation of federal power; and winds up at the Fourteenth Amendment’s limit on state governments‐​and when one reads all that against the “higher law background”-one cannot reasonably deny that the document is meant to protect persons, their liberty, and their property. Privacy, the realm beyond the reach of forcible intervention, is inherent in and inseparable from that intent. If property is not a sanctuary from entreaty and command, what is it? The Founding Fathers understood that.

The propertarian approach to privacy is not only morally sound, it also has an impeccable case‐​law pedigree. As noted, before 1890 privacy was not separated from property. For example, in his opinion in Boyd v. United States (1886), a search and seizure case involving a businessman, Justice Joseph Bradley wrote that the constitutional guarantees securing people in their persons, houses, papers, and effects transcend the concrete case and “apply to all invasions on the part of government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging in his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property.”

More recently, that model of privacy was invoked by Justice John Paul Stevens. In Moore v. East Cleveland (1977), in which the Court struck down a zoning law that prohibited a woman from living with two grandsons who were not brothers, Stevens, in a concurring opinion, said that the test to be applied was “whether East Cleveland’s housing ordinance is a permissible restriction on [Mrs. Moore’s] right to use her property as she sees fit.” There was no need to resort to vaporous (as Bork puts it) freedoms “deeply rooted in this Nation’s history and tradition.”

And in his Bowers dissent, Blackmun argued that the law against sodomy violated (quoting Charles Fried) the “moral fact that a person belongs to himself and not others nor to the society as a whole” (emphasis added). But as Stephen Macedo suggests, Blackmun weakened his argument by resorting to the vague Brandeisian freedom “to define one’s identity.”

Propertarian privacy has all the advantages of the big‐​government liberals’ contrived right of privacy and none of the disadvantages. It is not a warrant for judges to do whatever they wish. To determine whether one has a right of privacy with respect to some act, a judge need only ask what the property rights are. Thus, the use of contraceptives is protected because each party owns himself or herself (the first property right) and at least one owns the contraceptive device. No rights are violated. The same is true for the woman who wishes to live with her grandsons and for persons who engage in consensual homosexual sodomy, use drugs or pornography, grow wheat on their land, buy the services of a prostitute, or “fix” prices with business competitors. Those actions are perfectly consistent with property rights. (In fact, competitors cannot “fix” prices; they can only agree to ask the same price. Buyers are free to abstain from purchasing or to purchase from someone who is not a party to the agreement.)

On the other hand, child abuse, even in one’s home, is not protected because the child is a self‐​owner. (As to abortion, the salient fact is that the fetus comes into existence inside the body of a self‐​owner. Philosopher Judith Jarvis Thomson has argued that the issue of fetal rights distracts from the more fundamental issue of whether the state may force a woman to be an incubator.)

The property rights standard makes distinguishing privacy violations from nonviolations a matter of principle. For example, an employer tells a prospective employee that he may not smoke‐​even at home‐​if he takes the job. Violation of privacy? Contrary to the ACLU’s position, no. As a condition to a voluntary exchange, it violates no rights. The prospective employee can turn down the job.

Another example: A private firm compiles a computer data base on consumers in order to rent it to direct marketers. Privacy violation? Not if the information was originally provided freely by the consumers (or otherwise lawfully obtained) and all contractual restrictions are observed. But if information was given confidentially, divulgence should be actionable. To be sure, data can be misappropriated, stolen by computer hackers, or used in ways that violate contractual obligations. That is why there are criminal and civil courts.

(Incidentally, people naively and too readily give up personal information to private firms. The computer columnist Jim Seymour writes that he routinely ignores questions on applications, “and I can’t recall a single incident, in 20 years, when I was refused whatever I was seeking simply because I didn’t fill in every blank on the form.”)

The liberal and conservative obfuscation of the privacy issue has led to a constitutional miasma that threatens to violate natural rights by construing the right to privacy either too broadly or too narrowly. Propertarian privacy dispels the miasma to reveal the clear path laid out by the Founding Fathers more than 200 years ago.

Reprinted from Cato Policy Report, January-February 1993.

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1 comment:

Anonymous said...

This whole discussion is a history of the SCOTUS ignoring the 9th amendment ever since they upheld the Sherman Anti-trust act, which allows the govt. to invalidate private contracts, or any other things business' do that some fed.prosecuter decides is wrong. These laws were passed by "conservatives" and continued by "liberals" so they can use the same ideas to take away individual rights. The latest examples are the vax mandates, the "essential" and "non-essential" business, and now the taking away of abortion rights away from women and sending their rights to the states.