Privacy and the American Constitution William C Heffernan Privacy and the American Constitution New Rights Through Interpretation of an Old Text William C Heffernan John Jay College of Criminal Justice City University of New York John Jay College of Criminal Justice New York, New York, USA ISBN 978-3-319-43134-5 DOI 10.1007/978-3-319-43135-2 ISBN 978-3-319-43135-2 (eBook) Library of Congress Control Number: 2016948367 © The Editor(s) (if applicable) and The Author(s) 2016 This work is subject to copyright All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed The use of general descriptive names, registered names, trademarks, service marks, etc in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made Cover illustration: © Cultura RM / Alamy Stock Photo Printed on acid-free paper This Palgrave Macmillan imprint is published by Springer Nature The registered company is Springer International Publishing AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Acknowledgements In writing law review articles on the Fourth Amendment and its exclusionary rule over the course of the last 20 years, I routinely encountered comments in Court opinions about the Constitution’s solicitude for privacy At first, I took those comments as givens and simply used them to buttress positions I was advancing But after a while I began to wonder about the source of the rights I was taking for granted In particular, I wondered how a text that explicitly protects property, free speech, and religious conscience but says nothing about privacy can nonetheless be said to protect it—and can be said to protect it more robustly, at least on some occasions, than it protects property rights It’s important, then, for me to start out by acknowledging that the questions posed in this book were prompted by judicial opinions themselves—by textually unsupported claims about the Constitution’s concern for privacy As I tried to fill in the blanks left by Supreme Court opinions that discuss privacy, I found I was coming up with blanks of my own I’m grateful to Mike Cullina, John Laffey, and Steve Wasserman for putting up with my speculative arguments as I felt my way through the perplexing issues associated with interpretive supplementation of the constitutional text My friends’ influence was indirect, but it contributed immeasurably to my work Had I not been able to talk to them about v vi Acknowledgements the questions at stake here, I would never have been able to work out the framework I propose in the book I couldn’t ask for more supportive friends than these Once I’d written an earlier draft, they were kind enough to explain to me why they thought I’m still mistaken I needed to measure my ideas against theirs, if only to reaffirm (for myself at least) the soundness of my approach to constitutional law My family has been consistently supportive as well Denise, Sarah, David, and Michael contributed to this book by providing me with the love that makes it possible to get down to work with full confidence that there’s a rich emotional world to which one can return In the end, that world matters more than the one an author imagines while writing A good book emerges through the interplay of an author’s imagination and the setting in which he lives If this book is sound, this is because I was confident about the context of my everyday life As for editorial work on the completed manuscript, my thanks to Elena Fichtel for her conscientious proofreading efforts and for preparing the book’s index My Palgrave editors, Josie Taylor and Stephanie Carey, and my Palgrave production manager, Sundar Ananthapadmanabhan, have been unfailingly helpful as well I’m grateful to them for smoothing the way from manuscript completion to final production My last acknowledgement is to my parents Although they are no longer alive, my parents were committed to the conception of the Constitution that informs the entire book Indeed, my mother’s Shorter Hours: A Study of the Movement since the Civil War contributed to my own understanding of constitutional change Although I never had a chance to discuss the book’s argument with them, I absorbed its key features as I grew up The book is dedicated to them, in loving memory of all they did and what they stood for Contents Introduction Part I Moving from the Said to the Unsaid Chapter 1: Constitutional Afterthoughts 23 Chapter 2: The Right to Wear a Hat—and Other Afterthoughts 57 Chapter 3: Developmental Supplementation 77 Part II A Genealogy of Constitutional Privacy Rights Chapter 4: From Property to Privacy: The Eighteenth Century Background 99 Chapter 5: The Emergence of Privacy Norms in Nineteenth Century America 113 Chapter 6: The Nineteenth Century Court Reads the Eighteenth Century Text 133 vii viii Contents Chapter 7: From Thoughts and Beliefs to Emotions and Sensations: Brandeis on the Right to Be Let Alone 145 Chapter 8: An Exercise in Supplementation That Failed: The Rise and Fall of Freedom of Contract 167 Part III The Modern System of Privacy Rights Chapter 9: Ambitious Supplementation: Griswold on Penumbral Emanations from the Bill of Rights 187 Chapter 10: Unobtrusive Supplementation: Katz, Whalen, and the New Era of Informational Privacy 213 Chapter 11: Informational Privacy Imperiled: Protecting Core Elements of Personal Control while Insuring Public Safety 235 Chapter 12: Reappraising the Constitutional Past: Rights of Personal Autonomy 267 Afterword 293 Appendix A Privacy in the Supreme Court: A Complete Listing of References to the Term in the First 175 Years of United States Reports 297 Appendix B Privacy and the Fourth Amendment Exclusionary Rule 325 Index 339 List of Tables Table 1.1 Table 9.1 Justificatory arguments for supplementing the text’s enumeration of powers and rights An interlocking system of constitutionally protected privacy rights: The mid-twentieth century synthesis 45 202 ix Introduction In modern constitutional law, privacy is the hero with a thousand faces The term privacy doesn’t appear in the constitutional text There is no reference to the concept in debates at the Philadelphia Convention, nor did anyone mention it while deliberating about the Bill of Rights Rather, privacy is a contemporary concern: it is a constitutional afterthought that has secured its place in doctrine through modern glosses on an old text Many claims concerning privacy today are based on the Fourth Amendment’s prohibition of unreasonable searches and seizures.1 Some are advanced on the basis of an implicit First Amendment right to associational freedom.2 The Fifth Amendment’s right against compulsory self-incrimination has been said to protect a privacy interest against forced disclosure of information.3 And in discussing reproductive freedom, the Court has attempted a holistic The leading case is Katz v United States, 389 U.S 347 (1967) See, e.g., Roberts v Jaycees, 468 U.S 609 (1984) See Tehan v United States ex Rel Shott, 382 U.S 406 (1966) © The Author(s) 2016 W.C Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_1 Appendix B 333 an examination of [the Fourth Amendment’s] origin and purposes makes clear that the use of fruits of a past unlawful search or seizure “works no new Fourth Amendment wrong.” The wrong condemned by the Amendment is “fully accomplished” by the unlawful search or seizure itself, and the exclusionary rule is neither intended nor able to “cure the invasion of the defendant’s rights which has already occurred.” The rule thus operates as a “judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.”22 This passage contains four claims—three negative, and a final positive one—essential to the modern judicial conception of the exclusionary rule The first claim has to with the Fourth Amendment’s language— i.e., that it doesn’t mandate suppression of evidence obtained through a violation of its commands The second claim, also negative, is that use at trial of evidence obtained in violation of a defendant’s rights “works no new Fourth Amendment wrong.” The third generalizes on Linkletter’s conclusion concerning the irreparability of privacy wrongs—i.e., it holds that exclusion is “neither intended nor able to ‘cure the invasion of the defendant’s rights which has already occurred.” The fourth claim has negative and positive elements It concludes, unsurprisingly, that there is no “personal constitutional right” to exclusion, but it adds, as a consolation prize, that the rule is a judicially created remedy that can be justified as a deterrent safeguard against police violations of the Fourth Amendment By substituting a remedial for a rights-based conception of the rule, the Court has granted itself considerable leeway in deciding when suppression is appropriate in criminal trials In particular, its post-Leon decisions permit the prosecution to offer evidence in its case in chief (i.e., to establish guilt) when the evidence has been secured through a reasonable mistake about the legality of a search or seizure—as when a police officer 22 468 U.S 897, 906 (1984) (citations omitted) 334 Appendix B relies on a statute that later turns out to be unconstitutional23 or relies on data-base information that turns out to be mistaken.24 In modifying the scope of exclusion, the modern Court has relied on a cost-benefit framework, one that considers the tradeoff between forgoing reliable evidence of guilt (a social cost) and deterring police illegality (a social benefit) Police violations of the law are unlikely to be deterred, modern opinions hold, if they are based on reasonable good faith mistakes about the law, so the social costs of deterrence are greater than the benefits generated by the threat of exclusion In contrast, benefits outweigh costs when police intentionally or recklessly violate the law, in particular because deterrence is possible on these occasions and the social costs of police illegality are higher.25 On this reckoning, the exclusionary rule is a flexible device designed to promote not maximum, but optimal, deterrence of police illegality—i.e., suppression is warranted only when the “marginal benefits” of exclusion cannot “justify the substantial costs of exclusion.”26 Thus no criminal defendant can lay claim to exclusion as a matter of constitutional right, but suppression remains in place (in some, though not all) settings where illegally acquired evidence is presented at trial because of suppression’s general deterrent effect on police behavior Rethinking the Remedial Function of the Exclusionary Rule There is an obvious air of unreality to the cost-benefit framework used to justify the Court’s remedial conception of exclusion Unreality because the benefits can’t be definitively established—since the deterrent effect of 23 Illinois v Krull, 480 U.S 340 (1987) Herring v United States, 555 U.S 135 (2009) 25 Leon outlines the cost-benefit framework at 468 U.S at 909–13 26 Optimality is invoked in the Leon Court’s summary of its position: “We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated warrant cannot justify the substantial costs of exclusion” (Id 922) An appeal to “marginal benefits” presupposes inquiry where policy makers seek to optimize benefits 24 Appendix B 335 a rule that imposes no direct sanction on erring police officers has always been, and is likely always to remain, a matter of speculation.27 And further unreality because, even if the rule’s deterrent effect could be accurately identified, no conversion metric exists for calculating the tradeoff between the benefit of preventing constitutional violations and the cost of forgoing reliable evidence of guilt.28 The modern justification for the exclusionary rule, in other words, relies on ad hoc intuitions about the value to be assigned social costs and benefits Current opinions appeal to the powerful conceptual tools employed by experts in microeconomics for thinking about optimality and declining marginal utility, but the opinions that invoke this terminology so in the absence of reliable data for charting the slope of the utility curve under consideration—and they thus provide no way to determine when the nth benefit is exceeded by the nth cost Is it possible to improve on this charade of microeconomic precision? A better approach can be found, I suggest, once a distinction is drawn between the kinds of remedial relief provided by exclusion Think first about suppression as a first-party remedy—i.e., as a measure a court offers wronged parties to provide concrete reparation for harm already suffered.29 It can readily be granted that the exclusionary rule cannot be justified on this ground Linkletter’s claim that informational privacy breaches are irreparable, while exaggerated because steps can be taken to limit the dissemination of illegally acquired information, counts against classifying it this way But even though Linkletter goes too far, it’s nonetheless pertinent in this context, and in any event there are other reasons why exclusion should not be classified as a first-party remedy One has to with the nature of contraband—that is, if contraband 27 The Court has acknowledged that no studies have established that the threat of exclusion has a deterrent effect on police officers See United States v Janis, 428 U.S 433 (1976) It hasn’t acknowledged how difficult it is to establish a deterrent effect of a threatened sanction in numerous other real-world settings 28 The passage quoted supra in note 26 presupposes a (nonexistent) conversion metric for weighing costs against benefits 29 The tripartite distinction between first-, second-, and third-parties remedies employed here is developed at greater length in William Heffernan, “The Fourth Amendment Exclusionary Rule as a Constitutional Remedy,” 88 Georgetown Law Journal, 88 Georgetown Law Journal 799 (2000) 336 Appendix B (drugs or guns, for instance) is discovered during the course of an illegal intrusion, it of course shouldn’t be given back, with the result that the exclusionary rule can’t be said to restore the status quo ante (and of course this is the aim of a first-party remedy).30 Another factor worth considering here has to with defendant perjury If courts were to disregard information obtained through a privacy wrong, defendants might be able to testify safely by offering false statements about their activities But this too would be unacceptable—so the prospect of tolerating perjury stands another reason not to think of exclusion in first-party terms.31 The modern Court has moved from these convincing (negative) points to the unconvincing (positive) claim that exclusion can be justified only as a third-party remedy—i.e., as a measure whose sole value is that it protects the public at large It can readily be granted that the possibility of any remedy is likely to serve as a general deterrent, for in signaling that they’re willing to respond to past wrongs courts also take steps that discourage future wrongs To note this, however, is merely to say that remedial relief typically has the incidental effect of deterring future wrongdoing It’s not to say that the sole justification for remedial relief should rely on deterrence, for if so the very notion of a remedy becomes problematic since remedies are provided in response to past wrongdoing, not as a windfall benefit for a party who has no valid claim to relief Fortunately, there is a relatively straightforward way to escape from the trap the Court has set for itself This is to think of the exclusionary rule as a second-party remedy—not as a remedy that repairs the wrong suffered by the victim of a Fourth Amendment violation but instead as 30 The Court confronted the issue of contraband in early exclusionary cases: United States v Amos, 255 U.S 313 (1921) (alcohol) and Agnello v United States, 269 U.S 20 (1925) (heroin) In neither case did the defendant request return of what was taken, but the possibility of restoring the status quo ante existed because Weeks and Silverthorne were concerned with motions for return of lawfully possessed evidence 31 The Court first addressed the possibility of defendant perjury about the findings of an unlawful search in Walder v United States, 347 U.S 62 (1954) It held that illegally seized evidence is inadmissible in the prosecution’s case in chief but may be used to impeach a defendant’s testimony Appendix B 337 one that disgorges the government of its ill-gotten gains Disgorgement remedies are commonly employed in unjust enrichment settings.32 As far as search and seizure law is concerned, the government can be said to enrich itself at the expense of a private citizen when it breaches rights of informational privacy In disgorging the government of the information it acquires through a Fourth Amendment violation, a court takes a step that has the incidental effect of deterring future police illegality But disgorgement also responds to a wrong that has already occurred since it strips the government of information obtained in violation of the Constitution By classifying the exclusionary rule as a disgorgement remedy, one can make sense of the “no-use” rationale for suppression announced in Silverthorne Justice Holmes’s opinion in that case doesn’t appeal to the Fifth Amendment to justify suppression Indeed, it doesn’t treat exclusion as a matter of individual right Rather, it relies on the premise that a provision which establishes a protocol for acquiring evidence must be honored by disgorging the government of evidence acquired in violation of that provision Because this is not a rights-based argument—because it focuses on the government’s wrongdoing—it allows for the kind of flexibility essential to remedial reasoning (it’s compatible, for instance, with a rule that prohibits the return of contraband and compatible with a rule that prevents perjury) Moreover, by thinking about exclusion as a disgorgement remedy, one can d`efend its deterrent effect—incidental deterrent effect, it should be emphasized— on the police while still saying that its primary purpose is to ensure that the government does not enlarge its powers through violation of the charter of its own existence 32 On the analysis presented here, exclusion adheres to the general principle that informs all cases of unjust enrichment The principle has been stated in the following way: “It makes sense in all cases to force the wrongdoer to disgorge his profits, even if that puts the plaintiff [i.e., the victim of the wrong] in a better position than if he had never been wronged at all” (Dan Dobbs, Law of Remedies: Damages-Equity-Restitution Sect 6.1 (4) (2nd ed 1993)) Index A Ackerman, Bruce 52, 52n50 Adair v United States 168 Adams, Henry 126 Adams, John 103, 103n9 Adams, Samuel 103, 103n8 Adkins v Children’s Hospital 174 Agnello v United States 329, 336n30 Alger, Commonwealth v 172 Alito, Samuel 183, 264, 265, 266 Allgeyer v Louisiana 168, 293 Amalgamation 90, 92, 96 American Constitution 6, 18, 24–25, 26, 35, 39, 54, 55, 64, 92, 102–108, 154, 157 as a blueprint 10, 88 as a plan of government 5, 10 American constitutionalism 18, 26, 35, 54, 55, 102–108 American Dictionary of the English Language (Webster) 10, 11n23, 30n14 Amsterdam, Anthony 255, 255n42 Arendt, Hannah 104 Aristotle 105, 105n17 Article I 24n3, 32, 43, 68, 135, 167 commerce clause 41, 84 contracts and 167 necessary and proper clause 32 Article II, age threshold for the presidency 68 Article V 6–11, 18, 25, 27, 28, 29, 35, 36, 37, 38, 40, 42, 46, 50, 52, 52n50, 52n51, 53, 55, 57, 58, 60, 62, 64, 72, 78, 79, 81, 86, 87, 95, 133, 134, 154, 155, 204 Article V bypass 42, 52, 57, 95 © The Author(s) 2016 W.C Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2 339 340 Index Articles of Confederation 28 Authorization of the Use of Military Force 245 B Baird, Bill 279 Baker, Richard 267, 268, 268n6, 269, 270, 271, 285 Baker v Nelson 269n7, 270n10 Balkin, Jack 53, 53n52 Barron v Mayor and City of Baltimore 171 Benson, Egbert 58 Bentham, Jeremy 237, 237n6 Bible 68, 68n24, 154n32 See also Synecdoche-based interpretation Bickel, Alexander 61, 61n8, 87n15 Bill of Rights 1–2, 25, 33, 34, 46, 60, 75, 102, 107, 107n23, 109, 110, 135, 153, 171, 187–212 penumbral emanations from 194–198 See also Penumbras-of-privacy Black, Hugo Blackstone, William 109n26, 110, 111, 136n5, 199 Bolling v Sharpe 9, 62, 74, 77, 273 Bond v United States 14, 259 Bowers v Hardwick 96, 156n35, 273n17, 274 Boyd v United States 133, 261 See also Privacies of life Bradley, Joseph 138–144, 145, 149, 155–156 Brandeis, Louis 149n11 See also Right to be let alone Brennan, William 160n48, 230 Brown v Board of Education 77 Burke, Edmund 272, 272n15, 273, 276, 289, 291 Bush, George W 236, 236n3, 244, 245, 246, 247, 247n26, 263 C Caldwell v Taggart 136 California State Constitution 24 Camden, Lord (Charles Pratt) 139–140, 140n16, 141, 143, 150, 161, 193, 213 Cannon v United States 137 Carolene Products, United States v 182 Chaucer, Geoffrey 116 Civil Rights Act of 1875 88 Clapper v Amnesty International 248 Clark, Tom 330 Common law 73, 110, 114, 134, 136, 140, 141, 148, 149–152, 153, 153n25, 154, 159, 160, 209, 210n47, 233n47, 278 Constitutional afterthought 1, 5, 6, 7, 28, 29, 52n50, 104 modern constitutional doctrine Contract, freedom of 91n23, 167–184, 190 contractual freedom 167–170, 175, 177, 178, 180, 181, 191 economic exploitation 178 limitations on 169 unionization and 169 Cooley, Thomas 149 Index Countermajoritarian difficulty 61, 64, 65, 277 Coverture 199, 200 Crime Control Act of 1968, Omnibus 219n19, 220 D Databases 215, 218 Declaration of Independence 12, 146, 147, 220, 258, 263 Desegregation 77, 80, 82n8, 83, 87, 88–89 Developmental constitutionalism as applied to school segregation 86 emergent doctrine 270 Developmental supplementation 11, 52n50, 74, 77–96, 144, 155–157, 162, 170, 181, 184n44, 190–201, 208, 222, 273, 277 evaluative supplementation 158 Dictionary of the English Language (Johnson) 10, 11n23, 30, 120n13 Discussions and adjudications 37, 42n35, 51, 63, 63n14 See also Federalist;Textual liquidations Douglas, William 107, 143, 153, 155, 183, 188–200, 193n14, 195n17, 196n18, 208, 214, 217, 220, 221, 229, 269, 276 Dred Scott v Sanford 28n9 341 E Economic individualism 173, 175, 204 Eighth Amendment 18, 18n36, 49, 79n4 Eisenstadt v Baird 278 Elias, Norbert 114n1, 116–118, 116n6, 117n7 Ellickson, Robert 115, 115n2 Emerson, Ralph Waldo 128, 128n29, 128n30, 129, 129n32, 129n33, 130, 130n34, 151, 151n15, 194, 204, 204n31 Emersonian themes 204 Entick v Carrington 139, 139n12, 193, 213, 213n2, 264 Erasmus, Desiderius 114 European Convention on Human Rights 23, 23n2 Ex ante deliberation 30 terminological propriety 252 Ex post uncertainty 30, 35 F Federal Communications Act of 1934 217, 217n9, 220 Federalist, The Federalist 10 (Madison) 105, 105n19 Federalist 37 (Madison) 36, 36n24, 42n35, 47, 51, 63, 63n14 (see also Discussions and adjudications; Textual liquidations) 342 Index Federalist 39 (Madison) 5n12, 25, 25n6, 153, 153n27, 294n4 Federalist 49 (Madison) 35, 35n23, 37 Federalist 69 (Hamilton) 99, 99n2, 100 Field, Stephen 91, 173, 174 Fielding, Henry 104, 120, 121n15, 122 Fifth Amendment due process clause 2, 80, 82, 83, 168, 170, 174, 192, 195n17, 208, 209, 274, 275 grand jury clause 107 self-incrimination clause 332 First Amendment communicative expression 66, 67, 69, 70, 71, 78, 183, 183n42 establishment clause 107 music, right to perform 62, 71, 72, 73, 167 speech and press clauses 62, 66, 147 Fiske, Robert 118 Foreign Intelligence Surveillance Act (FISA) of 1978 236 Fourteenth Amendment citizenship clause 82, 83 due process clause 2, 80, 82, 83, 168, 170, 174, 192, 195n17, 208, 275 (see also Procedural due process; Substantive due process) equal protection; denigration rationale 288 group based vs individualized 91 Fourth Amendment 1–4, 10, 12, 14n29, 46, 84, 107, 110, 135, 139, 140n16, 142, 145, 156, 158, 161–163, 181, 183, 188, 196, 196n18, 197, 210, 211, 214, 215, 219–226, 229, 231, 238, 242, 245, 246, 250, 255, 256n43, 264, 325–337 exclusionary rule 325–337 Frankfurter, Felix 153, 246 Free labor dignity of 170 ideology 169, 170, 173, 277 Free-market 175 market coercion 177 Frontiero v Richardson 282 G Gay-marriage 267, 268n6, 270, 278, 285, 289 Ginsburg, Ruth 280–283, 280n28 Global positioning systems surveillance 17, 241, 264 Glucksberg, Washington v 206, 207, 207n39, 274–275 Goesele v Bimmler 136 Goldman v United States 190 Graglia, Lino 82, 82n7 Green, T H 177, 177n27 Greenleaf, Simon 325, 326n2 Griswold v Connecticut 6, 46, 52n50, 84, 107, 153, 183, 187, 188, 269, 293n3 Index H Hamilton, Alexander 33, 33n20, 34, 40, 41, 41n34, 46, 63n14, 83, 99, 100 Harlan, John Marshall II 12, 13, 15, 226–228, 238, 242, 253–256, 259 See also Privacy, reasonable expectations of Hart, Levi 104, 104n13 Hartley, Thomas 59–60, 67 Hayden, Warden v 332, 332n20 Hendrick, Thomas 90 Henrich, Joseph 290, 290n49 Hill v Tucker 136, 136n4 Holmes, Oliver Wendell 152, 152n21 Hook, Theodore 216, 216n5 Hoskins, W.G 125, 125n19 Hughes, Charles Evans 178–180, 182n36 I Informal social order 115, 131 Interpretive supplementation analogical justification 38, 39, 46, 62, 69 Libertarian approach 159 not in the text rationale 72, 83 as reappraisal 19, 154 as retrojection 148, 153, 154, 154n32, 164, 271 teleological justification 40 as transvaluation 159 See also Madisonian framework; Extended Madisonian framework; Bill of Rights, penumbral emanations from 343 J Jackson, Ex Parte 135, 135n2, 163, 223n31 James, Henry 216, 216n6 Jay, John 100, 123, 123n16 Jefferson, Thomas 27, 27n7, 27n8, 28, 29, 29n12, 35, 294 Johnson, Samuel 11n23, 30n13, 120, 120n13, 120n14 See also Dictionary of the English Language (Johnson) Jones, United States v 249, 250, 250n34, 264, 264n53, 265n56, 266 K Katz v United States 1n1, 4n11, 12, 46, 46n37, 187, 212, 213, 220n20, 242n12 Kennedy, Anthony 62, 65n16, 72–74, 79n4, 155, 271, 275, 275n22, 276, 284, 285, 287, 288 Kernan, James 127, 127n25 King, Martin Luther, Jr 217, 217n11, 219n18 Knox v Lee 38n30 Kyllo v United States 211n51, 254, 255n41, 266, 266n57 L Lafayette, Marquis de 41, 42n35, 43–44, 63n14, 295n9 Lawrence v Texas 17, 17n33, 61n10, 67n21, 84, 155, 155n34, 170, 170n8, 183, 188 344 Index Lawrence v Texas (cont.) 188n4, 203, 203n29, 207n39, 267, 271 Lemaistre, J.G 215, 215n4 Leon, United States v 332 Linkletter v Walker 331 Livius, Titus Livy 104n14 Lochner v New York 159n42, 168, 168n3, 192, 287 Locke, John 109, 110n29, 129, 139, 139n12 See also Privacy rights, Lockean justification for Louisiana Purchase 27, 29, 42, 55 Loving v Virginia 92, 92n27, 269, 270n9 M Macedon Convention 173 Machiavelli, Niccolo 100, 104, 104n14 Madison, James 5, 10–11, 25–26, 29, 32–44, 46–55, 62–64, 74–75, 96, 100, 102, 105, 105n19, 106, 108, 109–111, 140, 146, 146n4, 150, 153, 153n27, 154, 155, 157, 157n39, 162, 172, 204 Madisonian framework 38–39, 44, 51, 53n52, 62–65, 201 extended Madisonian framework 63, 65, 70, 71, 74, 80, 91, 157, 163, 169, 184n44, 189, 200, 206, 231, 271–278, 281, 286, 287, 291 Mansfield, Lord (William Murray) 19 Mapp v Ohio 196, 326, 330 marriage, companionate 189, 198, 200 See also Coverture; Gay-marriage McConnell, James 267–269 McConnell, Michael 51n48, 87–88, 88n16, 89, 89n19, 92, 94 McCulloch v Maryland 38n29, 61, 61n9, 63n14 McLaughlin v Florida 92, 92n26 McNealy, Scott 235–237 Metadata analysis 262 Mill, John Stuart 206–207 Minimum wage federal legislation 168–169 state legislation 175 Minnesota v Olson 210, 211n50, 259 Montesquieu, Baron de 105, 105n18 Morris, Gouverneur 9, 28n11, 47, 123 Moschella, William 245, 245n23 Murphy, Francis 153 N NAACP v Alabama 7n16, 182n38, 195n17 NASA v Nelson 67n22, 183n41, 183n43, 202n26, 213n1, 214, 229n37 National Security Administration 236 Nicholas, Wilson 27, 27n7 Ninth Amendment 25, 33–34, 37n26, 57n1, 69, 279 Index O Obergefell v Hodges 78, 78n3, 203, 203n28, 270n10, 271, 277, 284 Olmstead v United States 12n24, 145n2, 146, 330n16 Olsen v Nebraska 190, 190n9, 192 Olson, Theodore 86–87 On Lee v United States 191, 191n11 Originalism See also Plan-as-draught originalism; Plan-as-scheme originalism; Plan-as-scheme vs plan-as-draught originalism Orwell, George 216, 216n7, 217–218, 235, 235n2 P Pace v Alabama 91, 91n22, 92 Packard, Vance 218 Page, John 59, 67, 70 Panopticon 237, 237n6 Passenger Cases 38n32 Peckham, Rufus 168 Penumbras-of-privacy peripheral rights and 199 See also Bill of Rights, penumbral emanations from; Douglas, William; Griswold v Connecticut Philadelphia Convention 1, 25, 28, 33, 46–47, 106 Physician-assisted suicide 206, 206n35, 207n39 Plan-as-draught originalism precisionizing strategy 51 345 Plan-as-scheme originalism vs plan-as-draught originalism 47–54 Planned Parenthood v Casey 207, 207n27, 208n30, 288, 289n33 Plessy v Ferguson 91, 91n23 Plumbing, indoor 127, 128, 128n21, 129 Police power doctrine of 175 regulatory authority and 178 scope of 177–180, 182, 183 Polygamy 294, 296 Privacies of life 137, 142, 145–147, 149, 153, 160, 165, 198, 200, 200n18, 266 Privacy, reasonable expectations of 254, 261n43 Privacy, taxonomy of Brandeis’s general right to privacy 151 communicative privacy 124, 146, 156, 158, 163–164, 183, 219, 223 corporate privacy interests 261, trade secrets, 261 informational privacy acquisition of 208–209 disclosure of 208–209, 215 privacy-as-autonomy-withinpersonal-life 101, 164, 193, 201 privacy vs secrecy 250, seclusion interests130 residential privacy 210, 211 substantive vs procedural 85, 234 346 Index Privacy conventions secrecy and 13, 122, 124–125, 231 as source of constitutional law in Katz 229 See also Privacy signals Privacy protection forbearance model 14, 14n29, 15, 16, 242–243, 254, 259, 260, 262 vigilance model 242–243 Privacy rights, genealogy of as dependent on property rights 101, 124 modern system of constitutional privacy protection 18 social norms as source of privacy rights 15, 110 as synonymous with privity 99 Privacy signals exclusion and 243 shield-privacy 124 See also Privacy conventions Private facts 116, 118, 118n6, 119, 120, 126, 134, 164, 164n47, 213–214, 216, 236, 237n47, 238, 262, 263, 265, 266 Procedural due process 85, 85n13 Property rights dearest property 140, 143, 150, 194 (see also Entick v Carrington) Lockean justification for 129 narrow vs enlarged sense 110 Publius 99–100 R Reconstruction Amendments 169, 172 Republicanism civic vs liberal republicanism 100, 105 Resulting rights 84, 188 Right to be let alone 115, 145–165, 181, 184, 191, 209, 222, 238, 266 Riley v California 17, 17n35, 266, 266n58 Roberts, John 183, 287, 290 Roe v Wade 192n12, 271, 277, 280n28 Roosevelt, Franklin 177, 217, 217n10 Rush, Benjamin 103, 103n7, 103n10, 105, 127, 129 Rutledge, Wiley 153 S Same-sex marriage 78, 78n3, 86, 87, 203, 268, 269, 270, 270n11, 271, 284, 285, 286, 287, 288 Sanger, Margaret 156, 156n36 Scalia, Antonin 48n44, 49, 49n45, 50n47, 51, 62, 65, 65n18, 66, 66n19, 67, 67n21, 68, 69, 70, 71, 71n28, 73, 74, 74n31, 78, 79n4, 86, 87, 183, 183n42, 208, 209, 223, 223n30, 254, 255, 264 Schmerber v California 332 Second Amendment 107 Index Sedgwick, Theodore 58–60, 83, 110, 154 Shaw, Lemuel 172, 173, 180 Silverthorne Lumber Co v United States 328, 329n8 Sixth Amendment petit jury clause 107 Skinner v Oklahoma 196n18, 269, 269n8 Slaughter-House Cases 173 Smith v Maryland 233, 234n49, 242n14, 243, 247, 249, 250n34, 260 Snowden, Edward 236, 236n5, 247, 248, 249, 253, 256, 263 Snowden revelations 247–250 Social Security Act 180 Solove, Daniel 4n11, 160n47, 217, 217n10 Sotomayor, Sonia 249, 250, 250n34, 258, 264, 264n54, 265 Stalin, Josef 216 Stanley v Georgia 210 State secrets doctrine 252 Stellarwind, Operation 244, 244n19, 245, 245n22, 246, 263 Stevens, John Paul 214, 229–234 Stewart, Potter 187, 193, 193n14, 198, 214, 215, 220, 221, 221n24, 222, 223, 224, 225, 226, 227, 228, 229, 232, 233, 234, 238, 242, 254, 259, 265 Stoner v California 188n3, 210 Story, Joseph 107, 107n22 Strahilevitz, Lior 256–257, 256n43 Strauss, David 52, 52n51 347 Substantive due process 85, 188, 194, 195n17, 207n39, 231, 233, 269, 272, 274, 275, 276, 281, 287, 288, 289 Supplementation of the constitutional text by amendment 1, 101 by stealth 221 through unobtrusive exercises 230 See also Article V; interpretive supplementation; Madisonian framework Surveillance Surveillance biometric 241 closed-circuit television 241 drones 241 global positioning systems 241, 264 passive millimeter-wave imaging 241 sense-enhancing technology 241 thermal imaging 241, 255, 266 Sutherland, George 174–176 Synecdoche-based interpretation 67, 68, 68n23, 68n24 T Taft, William Howard 161–163, 221, 221n25 Tehan v Schott 202 Tenth Amendment 32, 34, 40, 42n35 Textualism 5, 210 Textual liquidations 63, 80 See also Discussions and adjudications; Federalist 37 348 Index Third Amendment 107, 110, 196, 196n18, 201, 210 Third-party doctrine 249 See also Privacy protection, forbearance model Thirteenth Amendment 169 Thoreau, Henry David 128, 128n28, 194 Todorov, Tzevetan 68, 68n25 Tom Jones (Fielding) 120, 121n15 Truman, Harry 9, 9n21, 246 Trumbull, Lyman 90 Tucker, Thomas Tudor 32–33, 33n18, 40 U Unenumerated vs implied rights 5, 10 incomplete textual specification 32–35, 60, 83 See also Resulting rights United Nations 23 UNIVAC 218 Universal Declaration of Human Rights 23 USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act 243, 249 V Valcourt, Robert de 124, 124n18, 125, 130, 131, 132 moral right of privacy 131 Verdi, Giuseppi 73 W Wagner Act 180 Ward v Rock against Racism 62, 71 Warren, Earl 78, 81–82 Warren, Samuel 149, 149n11, 159 Webster, Noah 10, 11n23, 30, 30n14, 31, 49, 93, 93n28, 106, 106n21, 107, 108n25 See also American Dictionary of the English Language (Webster) Weeks v United States 326n2, 328 West Coast Hotel v Parrish 177, 190 Whalen v Roe 208, 213, 228, 331 White, Byron 332 Whitman, Walt 128, 128n27 Wilson, James 33, 34 Wiretapping 146, 149, 156, 161, 217, 257 Z Zeitgeist 71, 74 ... © The Author(s) 2016 W.C Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_2 23 24 Privacy and the American Constitution Privacy is also mentioned in ten state constitutions.3... on the inside It is only by considering these factors in conjunction with one another that one can grasp the difference between privacy and solitude on the one hand and privacy and secrecy on the. .. 382 U.S 406 (1966) © The Author(s) 2016 W.C Heffernan, Privacy and the American Constitution, DOI 10.1007/978-3-319-43135-2_1 Privacy and the American Constitution analysis of the Bill of Rights,