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Privacy and Liberal Legal Culture
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18451 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
9 / 1990 |
9,912 Words |
| Author
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Russell Hittinger
Russell Hittinger is assistant professor of philosophy at
Fordham University. |
There will be no attempt in this essay to deny that privacy is a value to be prized. Nor shall I argue that privacy is not a constitutionally protectable zone of liberty, derived from some combination of moral and legal reasoning. Whether it is a fundamental right, and whether its scope is as broad as the judiciary has claimed since Griswold v. Connecticut (165), is quite another matter. Justice Blackmun, for example, has suggested that privacy is “the most comprehensive of rights and the right most valued by civilized men,” namely “the right to be left alone.” The right to be “left alone” was first mentioned by the late Justice Louis Brandeis and, interestingly, was emphasized by Richard M. Nixon during his period as a corporate attorney in the only case he argued before Court. Being left alone no doubt has a place in the mythic structure of American individualism, but it is not self-evident that civilized men value privacy as an architectonic liberty of the same order as the right of free speech, freedom of religion, and the rights of due process and equal protection under the law.
From the time of the ratification of the Constitutions and the original Bill of Rights until the time of the Second World War, the most controversial area of constitutional law concerned rights of property in particular, and economic market freedoms in general. By controversial, I mean the use of judicial power: to find new rights, or to amplify already existing ones in new ways; to invalidate federal or state statutes in a manner that seems less than neutral as to its political effects; and to adjudicate disputes according to extra-constitutional principles. Two of the earliest appeals to natural law in the adjudication of rights claims concerned matters of property: Calder v. Bull (1798), and the Fletcher v. Peck (1810). The first test of the applicability of the Bill of Rights to the states, Barron v. The Mayor of Baltimore (1833), involved a claim of property rights against municipal government. As Robert Bork has pointed out, from the time of Marbury v. Madison (1803) to Dred Scott v. Sandford (1857), the instrument of judicial review was used only sparingly. Yet, during that time, the judiciary was busy transforming common law to facilitate economic development of the nation.
It is worth recalling that Dread Scott v. Sandford, which was perhaps the first important instance of judge-made law that endowed procedural rights with substance not mentioned by the Constitution was, legally speaking, a property issue. The first important test of the scope of section one of the Fourteenth Amendment, Slaughter-House Cases (1873), dealt with a dispute over how the state's interest in public health affects commercial liberties. The
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