Privacy and constitutionality

One news story with the most traction this year has to be any issue revolving around privacy. From the ostensible infringements in the name of national security by way of the Patriot Act to the sought-after scrutiny of otherwise benign “Google” searches, the scope and definition of privacy in this country is being shaped, our personal expectations as well as the moral and legal agents exerting their pressures in search of an answer. A little more than two weeks ago one of those agents, the U.S. Supreme Court, had the occasion to rule on a narrow piece of this complex concept. In the case of Georgia v. Randolph, the Court held that where police receive consent to search a home, that consent may be negated by a co-occupant of that same home. The decision left constitutional pundits as divided as the court – six separate opinions were written including a rather stinging dissent by Chief Justice Roberts. In the overall landscape of privacy law the decision will have little consequence. But what the case does highlight is the dynamic nature of the debate concerning privacy.

I raise this point because a little more than two months ago an Op/Ed piece from the University of Illinois’ Daily Illini found its way onto the pages of the Mustang Daily. In it the writer thrashed the U.S. Supreme Court for bottoming its decision in Roe v. Wade on “a supposed constitutional right to privacy.” Passionate in its prose, the writer nonetheless only offered one perspective – relying upon a rather strict, albeit self-serving, interpretation of the constitution to arrive at the conclusion that the court’s decision in Roe mocks that very same document. That’s rather harsh in light of competing methodologies of constitutional analysis.

While privacy is not specifically enumerated as a right in the constitution, it arguably exists in the “penumbra,” or fringes, of several amendments in the Bill of Rights – namely the Third, Fourth, Fifth and particularly the Ninth. The right is evinced from a means of functional analysis where the entire document is construed – selectively parsing the Constitution may be politically expedient in framing one-sided arguments, but it only serves to divide the very population that hallowed document seeks to unite. From a historical perspective and considering the persuasive force of common law, it would be folly to presume the framers meant to recognize those rights, and only those rights, specifically listed in the Constitution. When Messrs. Samuel Warren and Louis Brandeis – who himself would be later appointed to the bench – penned “The Right to Privacy” in 1890, they recognized the political, social and economic changes afoot in our nation to argue for the recognition of such a right. The Supreme Court does not operate in a vacuum – as the necessity of sublimating such a right culminated in a majority opinion in the Supreme Court’s ruling in Griswold, so those same forces shape the interpretation of that right; former Chief Justice William Rehnquist arguably did not on his own volition and under his aegis swing the pendulum of Fourth Amendment decisions from the pro-defendant court presided over by previous Chief Justice Earl Warren to suddenly favor challenged police investigative practices. The fact that Roe has remained intact for well over 30 years attests to the decision’s validity pursuant to the judicial doctrine of stare decisis, a principle acknowledged by current Chief Justice John Roberts during his confirmation hearings.

Notwithstanding, the writer in the Daily Illini would have the casual reader believe that reliance upon a right to privacy in Roe fails because of its consequence. By way of analogy, as loathsome as it may be to accept that the First Amendment protects hate speech, a fair and dispassionate application of constitutional protections may not always square with popular thinking to the contrary. Moreover, to say that the decision in Roe is tantamount to “legislating from the bench” ignores the principles of checks and balances guaranteed the judiciary under pertinent sections of Articles I, II and III of the constitution. Indeed section four of Article IV guarantees a republic form of government to the states, but it does not protect legislation that fails relative provisions of the Constitution – specifically the 14th Amendment. So as the U.S. Supreme Court continues to shape the right of privacy by seeking to balance competing interests, we as Americans should remain vigilant in seeking balance from those who compete for our interest. I believe Eleanor Roosevelt summed up the struggle nicely; “Justice cannot be for one side alone, but must be for both.”

John Soares is a journalism professor and Mustang Daily guest columnist.