It's December 29th

I can't quite get yet to the world of law today. I am keeping busy avoiding getting busy. My associate James Rose is just the opposite. He has so much work pouring out of his ears that he has not the time to fiddle around much. Here are some thoughts on the issue of privacy and consitutional law:

No liberal democracy can act arbitrarily or capriciously towards its citizens—a tyranny can and arguably legally on a purely positivist account of what law is. If the state’s rational treatment of its citizens is one of its constituents—in the nature of a liberal democracy so to speak, partially constitutive of it—then it follows that that is—at least conceptually— preceded by man’s inherent, inalienable rights as he contracts socially with his fellow (soon to be) citizens and the liberal democratic state in giving birth to it.

So these state-defining rights flow from man’s inalienable individual rights and often get formal expression in states’ constitutional rights documents. That is the American theory in any event. And that theory is one way of understanding why enumerated rights, at least in American and Canadian constitutional law, do not preclude the constitutional status of un-enumerated fundamental rights. Such rights, in these two countries, according to the case law, await recognition and declaration by the court. Clearly, capricious or arbitrary’ restrictions are beyond the legitimate exercise of state power.

While wanting to avoid arguing over semantics, are there in common (sense) usage material differences between “the right to be let alone” and privacy? The latter does seem more narrow and specific than the former, and the American cases, after emanations and penumbras, speak about a constitutionally protected zone of privacy. But if there is something more narrow and focused and specific about “privacy” compared to the right to be left alone, it seems hard to separate it from the more general idea. On a plain dictionary definition of “privacy”, one of its meanings is “The state of being free from unsanctioned intrusion: a person’s right to privacy.”

It’s hard to see real meaningful differences between that definition and the idea of being left alone—using the latter phrase because it was Brandeis’s in his dissent in Olmstead, and which is said to be the jumping off point for modern privacy jurisprudence. As opposed to judges who sought to derive a right of privacy from things like the 4th Amendment and other provisions, the better view is that Brandeis was reasoning as follows: the right to be left alone (which seems conceptually indistinguishable from privacy though perhaps broader) is at the very unstated essence of the Constitution. Therefore, to repeat, every time a privacy- related provision of the Constitution gets raised—search and seizure, others—privacy and its claimed violation are necessarily present.

So, again to repeat, the analysis is: privacy is not derivable from other provisions by necessary implication, penumbras, emanations, what have you. It of necessity precedes all those provisions which are simply—or not so simply—instances of it. So one does not infer a zone of privacy; one recognizes that it must necessarily and foundationally be there. Therefore, it is analytically necessary to start with the proposition that what a woman wants to do with her body is her presumptive constitutional right as a matter of her right to privacy.

This line of reasoning seems unassailable. And to further the argument, consider the view that abortion is acceptable to the point until the fetus is viable outside the womb—the functional marking point in the American cases—getting away from the trimester analysis in Roe—when, essentially, the state has a recognized interest--the life of the fetus-- to vindicate. The notion is that until this functional marking point gets reached, the embryo is de minimis. If it would verge on the arbitrary and capricious to forbid a woman one day after sex from, say, destroying conception from 24 hours before, then the state ought not be able to press such a restriction onto her. And it can’t because she can do with her body what she wants: either as an incident of her right to be let alone: or of her privacy; or the security of her person; or her substantive 14th Amendment liberty; or the Blessings of Liberty.

At this point the state has no interest it can rationally point to. And an essence of the court’s constitutional role is to protect individuals' fundamental rights and liberties against their violation by the state. If this line of reasoning is robust to this point, then where does one draw a line? It’s drawn where it’s rationally concluded that that the state has something to talk about—when the fetus gets practical viability, so to speak. It is not for legislatures to as a matter of their own collective morality, to deprive women of their fundamental rights.

After all, a fundamental right is a fundamental right no matter what the legislature and the conventions of the day say—just as the court was right to say in Brown v Board of Education, it is not equality for whites and blacks de jure to need to go to separate schools even if the facilities are tangibly equal. Arguments were made in that case too about states’ rights—ie the right of the democratic state to legislate the will of the people and the complementary right of the states to be free from federal court fiat.

The “other side” always has an argument. The question always is the constitutional status of the contending claims.

We are relaxing our provision of great legal services at affordable prices over the holidays. In the New Year, we'll come roaring back greater and more affordable than ever.

Itzik Basman

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Itzik Basman