Privacy and the american constitution

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)

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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

1

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

1

The leading case is Katz v. United States, 389 U.S. 347 (1967).
See, e.g., Roberts v. Jaycees, 468 U.S. 609 (1984).
3
See Tehan v. United States ex Rel. Shott, 382 U.S. 406 (1966).
2

© The Author(s) 2016
W.C. Heffernan, Privacy and the American Constitution,
DOI 10.1007/978-3-319-43135-2_1

1

2

Privacy and the American Constitution

analysis of the Bill of Rights, speaking of penumbras of privacy that
emanate from different portions of the text.4 On the modern Court’s
analysis, the concept pervades the Constitution even though privacy isn’t
mentioned in the text.
Clearly, there is an air of improvisation—an air of desperation, some
might say—associated with efforts to establish the textual provenance of
privacy rights. Even the provision most obviously relevant to privacy
(the Fourth Amendment’s prohibition on unreasonable searches and
seizures) comes up short as far as privacy is concerned, in part because
the amendment is pertinent only to certain types of privacy (shielding
information from outsiders and insuring personal seclusion), in part
because the amendment deals with matters unrelated to privacy—
seizures of the person and property, for instance. Other provisions
have an even more remote connection. The First Amendment free
speech clause is, at most, tangentially concerned with privacy issues. It
is only by holding that there is a free speech right to join associations
that one can speak of a further associational right to resist forced
disclosure of its membership list. As for the Fifth and Fourteenth
Amendment due process clauses, these have no readily apparent connection to privacy whatsoever. They have to be treated as catch-all
provisions for interests not protected elsewhere in the text in order to
say they have a bearing on matters such as sexual freedom and reproductive choice.
In standing back, it is possible to discern a powerful dynamic that
accounts for this improvisational approach to constitutional interpretation. Privacy was an issue of modest concern in the late eighteenth
century. It came to matter more in the nineteenth century, more still in
the twentieth, and looms even larger in our time. Technological change
has contributed to its enhanced importance. As devices were produced for

gathering and storing information about personal behavior, the public has
come to treat privacy as a critical value in social life.

4

See Griswold v. Connecticut, 381 U.S. 479 (1965).


Introduction

3

Technology alone does not, however, account for privacy’s enhanced
importance in American life. Privacy also started to matter more as individualism came to the fore as a key social value. The emerging importance
of individualism in American life is discernible in part through the development of new linguistic terms: concepts such as identity formation5 and
presentation of the self 6 were unknown at the time the Constitution was
drafted but have become common features of modern discourse.
Individualism’s enhanced importance is also discernible in altered living
arrangements (in the increased number of people who live alone7 and also in
the declining number of siblings who have to share bedrooms8), in divorce
rates,9 and in public statements about sexual orientation.10 The word privacy
functions as an umbrella term for autonomy issues related to the matters just
mentioned. In turn, courts have fashioned constitutional doctrine to accommodate changes in the nation’s baseline of practices and values. Indeed, there
is a synchronicity associated with the development of constitutional privacy
rights. Social change and doctrinal change have occurred in tandem.
But this is merely a descriptive point. Even if sound, it establishes at
most that a developing national commitment to the values associated
with privacy was a catalyst to the judiciary’s elaboration of a system of
constitutionally protected privacy rights. The further question to ask is
whether courts have properly reasoned in terms of such a system. Indeed,

because even the Fourth Amendment offers only incidental protection of
privacy interests, it might be contended that the concept of privacy
should receive no direct constitutional protection whatsoever. In this
5

For a classic study that relies on this concept, see Erik H. Erikson, Identity: Youth and Crisis
(1968).
6
Erving Goffman appears to have coined this term, which has now become a part of everyday
discourse. See his The Presentation of Self in Everyday Life (1959).
7
See Eric Klinenberg’s Going Solo: The Extraordinary Rise and Surprising Appeal of Living Alone
(2012).
8
For a survey of trends, see Carla I. Perdone, The Challenges Facing Federal Rental Assistance
Programs 39–41 (1994).
9
See Elaine Taylor May, Great Expectations: Marriage and Divorce in Post-Victorian America
(1980).
10
For a self-help book concerning this, see Michelangelo Signorile, Outing Yourself: How to Come
Out as Lesbian or Gay to Your Family, Friends, or Coworkers (2012).


4

Privacy and the American Constitution

book, I argue that it should. The contemporary system of judicially
created privacy rights, while by no means immune from criticism, is a

triumph of constitutional modernization, I contend. It complements the
eighteenth century inventory of rights. In doing so, it extends the scope
of liberty beyond the founders’ republican conception of liberty by
treating intimate life as an essential component of human freedom.
The book relies on two different strands of thought—one concerned
with the concept of privacy, the other with constitutional interpretation—
to defend this argument as to the propriety of developmental change. At a
conceptual matter, it divides privacy into multiple components. But while
severable, it argues, the different facets of privacy have a complementary
relationship with one another, for the term privacy, at its most general,
suggests a number of interrelated claims that promote the possibility of a
life conducted free from outside social pressure.11 Control over the
informational sources of one’s life is a key feature of this general concern,
so I argue that the nouns persons, houses, papers, and effects can’t be said
to limit the Fourth Amendment’s scope but should instead be taken to
indicate a larger concern with protecting those facets of seclusion and
informational control essential to personal life. In turn, I suggest that
this capacious reading of the Fourth Amendment is properly understood
11

Other commentators have suggested that privacy has multiple, severable components. For
example, James Whitman states that “[t]here is no such thing as privacy as such” (James
Whitman, “The Two Western Cultures of Privacy: Dignity Versus Liberty,” 113 Yale Law
Journal 1151, 1221 (2004)) and Daniel Solove insists that privacy is “a plurality of different things”
(Daniel Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security 24 (2011)). One
thus might say that privacy is a term that “evokes a cluster of ideas, rather than a sharply chiseled
concept” (Peter Galison and Martha Minow, “Our Privacy: Ourselves in the Age of Technological
Intrusions,” in Richard Ashby Wilson, ed., Human Rights in the War on Terror 258, 269 (2005))
provided allowance is made for the complementary relationship between the severable components
of the concept. Furthermore, one can also distinguish, as Thomas Crocker helpfully does, between

shallow and deep privacy (Thomas Crocker, “Ubiquitous Privacy,” 66 Oklahoma Law Review 791,
796 (2014)), provided the complementary nature of the different types of privacy is borne in mind.
Edward White is the commentator who has come closest to endorsing the position taken here that
insists on complementary facets of privacy. “Privacy,” he writes, is understandable in terms of “the
autonomy of one’s person and one’s interest in being secluded” (G. Edward White, Patterns of
American Legal Thought 47 (1978)). Helpful as White’s comments are, it’s unclear why he failed to
mention control over the informational sources of one’s life. After all, he proposed his definition a
decade after the Court resolved Katz v. United States.


Introduction

5

as part of an even larger constitutional commitment to protecting autonomous choice within personal life.
An argument of this kind cannot be accommodated within the clausebound textualism that is a hallmark of most litigation. Nor is it compatible
with the inclination of many interpreters to appeal to the thick body of
understandings entertained by those who ratified the text. The argument
concerning constitutional interpretation that informs the book is that
neither of these should be honored in applying the text to contemporary
life. Privacy is indeed a constitutional afterthought, one concerned with
values (such as the development of deviant sexual identities) the framers
would almost surely not have endorsed. This doesn’t mean, though, that a
dimension of liberty not taken seriously at the outset but compatible with
the Constitution’s commitment to individual freedom can’t be incorporated into doctrine at a later time. On the contrary, although it is essential
to treat the Constitution as a plan of government, to use James Madison’s
term,12 what was proposed in Philadelphia in 1787 and adopted in the
following months must be understood as a scheme that can reasonably be
interpreted to include post-founding developments not anticipated at the
outset but nonetheless consistent with its informing purposes.

It is in this sense that one can speak of privacy as protected by implied
and unenumerated constitutional rights. The drafting strategy for the
Constitution was to enumerate—to list in catalogue form—the government’s powers and the rights individuals may claim against it. As the
text has endured, afterthoughts have been incorporated into doctrine
through interpretive analysis that has emphasized the affinity between
framing-era values and those that have come to the fore since adoption.
Privacy is the pre-eminent afterthought of modern constitutional doctrine,
one whose affinity with concepts mentioned in the text can be established
not merely by consideration of semantic ties but also by the emergence of
post-founding practices that further the traditions of individual freedom.
In examining privacy, we have a chance to consider a genealogy of constitutional rights, one in which afterthoughts have been integrated into

See Federalist 39 240 (Clinton Rossiter, ed., 1961), where Madison speaks of “the plan of
government reported by the Convention.”
12


6

Privacy and the American Constitution

doctrine in the absence of Article V deliberation. The remaining portions
of this Introduction comment generally on this point while noting its
particular relevance to privacy rights.

Accommodating Constitutional Afterthoughts:
Supplementing the Enumeration of Rights
while Bypassing Article V
“I like my privacy as much as the next one,” Justice Hugo Black remarked
during the course of his dissent in the 1965 case of Griswold v.

Connecticut, “but I am nonetheless compelled to admit that government
has a right to invade it unless prohibited by a specific constitutional
provision.”13 Black’s statement may at first sight seem convincing—and
so may seem devastating for claims about the legitimacy of constitutional
privacy rights. The American Constitution is a written one. Its words are
subject to interpretation, but when there are no words that bear on a
given issue, someone adopting Black’s position would argue, there is
nothing to interpret. Privacy isn’t in the text, so on this analysis, government has a free rein with respect to it unless restrained by specific
prohibitions that have a bearing on it.
But if in the text is the decisive criterion for determining what’s constitutional, surely a great deal of constitutional law is problematic. The text
doesn’t grant the Supreme Court power to overrule executive- or
legislative-branch interpretations of the Constitution.14 It doesn’t grant the

13

Griswold v. Connecticut, 381 U.S. 507, 510 (1965) (Black, J., dissenting).
In Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court self-interestedly assigned itself the
role of final interpreter of the Constitution’s meaning. There is nothing in the text that directly
supports this claim. Indeed, President Jackson adopted a “departmental theory” of the
Constitution. On Jackson’s account, the Court has “no more authority over Congress than the
opinion of Congress has over judges, and on that point the President is independent of both”
(“Veto Message of July 10, 1832,” in James Richardson, ed., A Compilation of the Messages and
Papers of the Presidents 576, 582 (1907)).
14


Introduction

7

President authority to dismiss cabinet officials.15 As for rights, the text says
nothing about a right of freedom of association,16 a right of freedom of
expression,17 or an equal protection right that can be asserted against the
federal government.18 But despite textual silence each of these powers and
rights is an essential component of modern constitutional law. Moreover,
they are afterthoughts. Some qualify for this label in the colloquial sense of
the term—that is, the ratifiers seem not even to have considered, say, the
possibility of a right of freedom of expression that protects communicative
nonverbal acts, nor did they consider whether coordinate branches of the
federal government must honor the Court’s determination of the text’s
meaning. More importantly, everything just mentioned qualifies as a constitutional afterthought in the special sense used here, for all can be classified
as norms that have achieved constitutional standing without having been
adopted pursuant to Article V. They are interpretive afterthoughts, in other
words, for they have been incorporated into doctrine in part on the basis of
accommodative modifications of practice by different branches of the government, in part on the basis of judicial pronouncements about the constitutionality of matters not addressed in the text.
Black accepted each of the interpretive afterthoughts mentioned in
the preceding paragraph. Because he did, it seems clear that not in the
text can’t serve as a sufficient reason to account for his rejection of
privacy as a constitutional right. Is a different justification for his conclusions nonetheless possible? Might it be said that the presumption
against constitutionality associated with not in the text is overcome on a
showing that a norm not mentioned can nonetheless be accorded constitutional standing if it follows as a matter of logical necessity from what

In Federalist 77, Hamilton asserts, in the face of textual silence on the issue, that the “the
consent of [the Senate] would be necessary to displace as well as appoint” cabinet members. See
supra note 12, at 459. The First Congress did not adopt Hamilton’s position.
16
See NAACP v. Alabama ex rel. Patterson, 357 U.S. 460 (1958) for an early case in which the
Court reasons in terms of an implied right of freedom of association.
17
See United States v. O’Brien, 391 U.S. 367 (1968) for a case that reasons in terms of an implied

right of freedom of expression.
18
See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), for a case that reasons in terms of
an implied equal protection right that can be asserted against the federal government.
15


8

Privacy and the American Constitution

the text actually does discuss? This hypothesis is certainly plausible. It
offers no support, however, for the unmentioned norms just noted, for
none of the supplementary powers or rights considered earlier can be
classified as logically necessary derivations from the text. Rather, the
powers and rights at stake here are understandable in terms of their
affinity with that which is enumerated. Their legitimacy is understandable in terms of textual intimations: that is, in offering justifications for
them an interpreter treats the text as suggestive of a larger body of rights
and powers and so extends its inventory of enumerated rights and
powers to further the project inaugurated at the outset. To reason in
this way isn’t to think in terms of an unwritten Constitution.19 Instead,
it is to accept the authority of that which has been written down and to
construct further constitutional principles in light of this, with the
process of development informed by support for those principles discernible over the course of the nation’s history.20
The supplementary powers and rights just noted are understandable
in terms of these points. The doctrine that other branches of government must honor the judiciary’s pronouncements on the Constitution’s
meaning complements the text but doesn’t follow from it as a matter
of logical necessity. It distills the experience of the nation—that is, it
ratifies a national consensus that has developed gradually, and somewhat
fitfully, since the eighteenth century concerning the Court’s role in

19

Christopher Tiedeman inaugurated discussion of this subject in The Unwritten Constitution of
the United States (1890). Thomas Grey’s “Do We Have an Unwritten Constitution?” 27 Stanford
Law Review 703 (1975) prompted modern scholarly interest in it. Akhil Amar is a contemporary
proponent of the unwritten constitution thesis. See his America’s Unwritten Constitution: The
Precedents and Principles We Live By (2012). Because Amar treats the text as a platform for moving
from the said to the unsaid, it might be argued that his thesis is compatible with what I call
interpretive supplementation. But Amar includes more than this in his discussion of the unwritten
constitution. For instance, he speaks of “bedrock ideas from the Warren Court era” as components
of his term (see id. 595, n. 9). I thus avoid his terminology while emphasizing, as he does, the
long-standing tradition of adding unmentioned rights and powers to those enumerated in the text.
20
In this respect, the inquiry here complements the one into everyday understandings of the law
undertaken by Patricia Ewick and Susan Silbey in The Common Place of Law: Stories from Everyday
Life (1998). My concern is with the high officials’ construction of legality whereas Ewick and
Silbey are concerned with citzens’ everyday practice. Like them, though, I focus on “legality [as] an
emergent feature of social relations . . . ” (Id. 17).


Introduction

9

national affairs. A similar point is in order about the equal protection
right that can be asserted against the federal government. This complements the equal protection right the Fourteenth Amendment declares
against the states. It does not, however, follow ineluctably from section
one of that amendment. Rather, the equal protection right against the
federal government expresses a national consensus that crystallized long
after the Fourteenth Amendment’s adoption, one that was expressed by

decisions such as President Truman’s to require integration of the armed
forces,21 and that was accorded constitutional standing in the Court’s
opinion in the 1954 case of Bolling v. Sharpe.22
It might be contended that these powers and rights are latent in the
text. To take this position, however, is to introduce a problematic
category into constitutional interpretation. In arguing for the legitimacy
of (most of) the Court’s privacy conclusions (and so in challenging
arguments such as the one Black employed in his Griswold dissent),
I rely on a less contestable framework. Judicial interpreters may properly
extend the rights/powers inventory, I suggest, provided three conditions
are met for doing so. First, no supplementary constitutional norm may
directly contradict the mandates and prohibitions contained in the text.
Second, when enlarging on rights and powers, interpreters must identify
supplementary norms that comport with the text’s overall design. And
third, in venturing beyond the text, interpreters must reach conclusions
that are compatible with a post-founding consensus about either the
proper role of government or the proper scope of individual rights.
When venturing beyond the text in this way, interpreters reason in
terms of a developmental constitution, one in which supplemental
norms compatible with explicit ones take on constitutional standing
by virtue of their status as constitutive components of national life.
Privacy rights, I argue throughout the book, are understandable in
terms of the points just mentioned. These rights do not run afoul of
any textual prohibitions or mandates. They have a conceptual affinity

21

For an examination of President Truman’s 1948 executive order, see Morris MacGregor,
Integration of the Armed Forces, 1940–1965 (1985).
22

347 U.S. 490 (1954).


10

Privacy and the American Constitution

to property rights, whose textual credentials are beyond dispute. And
since at least the mid-twentieth century privacy rights have been the
subject of a substantial national consensus. When talking about property, one reasons in terms of an exclusionary practice. Privacy’s origins,
I suggest, are also to be found in an exclusionary practice—that is, in
the way insiders exclude outsiders from tangible property such as the
home and personal papers (both subjects of explicit Fourth
Amendment protection). As a system of privacy rights developed in
social life, people began to grasp the value of excluding others not
merely from tangible objects but also from the informational traces of
their lives. For eighteenth century commentators (and for the
Constitution’s draftsmen), it was reasonable to think of privacy as a
subcategory of a larger one labeled property. With the development of
technologies and with the emergence of an assertive individualism, the
notion of privacy acquired standing in social thought as a category
meriting consideration in its own right.
It is in this sense that there is a genealogy of privacy rights, one that
makes it reasonable to speak of a modern, relatively well-integrated
system of implied and unenumerated rights but not of such a system
for the early republic. To understand why it’s appropriate to engage in
an exercise of interpretive supplementation long after the text’s adoption, it is essential to consider the sense in which Madison characterized
the Constitution as a plan of government. If we think of the
Constitution as a blueprint—as the equivalent of an architect’s rendering of precisely what was to come to later—then of course the answer
must be that privacy rights are constitutionally illegitimate (and, indeed,

the answer would have to be that even minor modifications of the plan
undertaken shortly after its adoption are illegitimate, for blueprints do
not permit deviations of any kind). On the other hand, if we think of a
plan as a scheme—as something that sets a direction but that vests
discretion in those executing it to work out its principles in practice—
then the case for privacy rights as a constitutionally legitimate form of
interpretive supplementation becomes at least plausible.
As it happens, two major dictionaries of the founding era—Samuel
Johnson’s 1755 Dictionary of the English Language and Noah Webster’s
1828 American Dictionary of the English Language—define plan as a


Introduction

11

scheme.23 Needless to say, this point isn’t sufficient to warrant concluding that Madison and his fellow-ratifiers thought of the text as a scheme
subject to interpretive supplementation by the judiciary. During the
course of the book, I consider other arguments about founding-era
understandings that support the claim that it is proper for interpreters
to supplement the text provided the three criteria already mentioned are
satisfied. Indeed, I suggest that Madison and other founders were open
to the legitimacy of developmental supplementation—that is, I contend
that Madison and other members of his generation were open to interpretive extensions that went beyond the understandings they entertained
at the moment of ratification about the way in which the text would be
applied. Privacy rights are among the most important modern examples
of developmental supplementation. They don’t break dramatically with
the past. They do, however, work an important variation on the republican consensus that existed at the time of the founding, one that
emphasizes self-fulfillment rather than civic virtue. A genealogy of
privacy rights concedes the importance of this point. It grants that

privacy’s inclusion in the range of protected rights is understandable in
terms of a more individualistic conception of liberty than the one
entertained at the time of the founding. But it insists as well on
continuity between past and present—on developmental, and incremental, change, in other words rather than a sharp departure from what was
said at the outset.

The Modern System of Privacy Rights
Because concern about privacy developed gradually over the course of
the republic’s first century, one can’t point to a single moment in time
when people settled on the exclusionary conventions essential to

Johnson’s entries for plan (as noun) are “a scheme, a form, a model.” See 2 Samuel Johnson,
Dictionary of the English Language 354 (2nd ed. 1755). Webster provides two definitions of plan
(as noun): (1) “a draught or form” and (2) “a scheme devised.” See his American Dictionary of the
English Language (1828) at www.1828.mshaffer.com/d/word/plan.

23


12

Privacy and the American Constitution

privacy norms. No one agreed at some point in time that closing a door
or sealing an envelope should be taken as a signal indicating an interest
in privacy. Similarly, no one agreed that, signals such as these having
been sent, an obligation arises requiring respect for the interest in
seclusion and informational privacy associated with them. With no
formal agreements having been reached concerning these matters,
courts have not had a body of authoritatively stated norms on which

to draw in articulating privacy doctrine. Rather, they have accorded
legal force to an informally generated order discernible in social conventions. Society, in other words, has been treated as the source of
constitutional norms, not the legal materials typically viewed as the
source of law.
Confirmation of this point can be found in the way the Court
resolved Katz v. United States, the 1967 case that serves as a declaration
of independence for informational privacy rights. At stake in Katz was
the lawfulness of an electronic eavesdropping operation, undertaken
without a warrant, of conversations conducted in a phone booth. At
the time Katz was decided, there was no body of law prohibiting
eavesdropping on phone conversations.24 And of course there was no
law of the phone booth on which the Court could rely. Because the
Katz Court had no authoritative sources of law that invalidated the
government operation, it accorded legal standing to everyday privacy
conventions. Someone who “shut[s] the door” to a phone booth is
“surely entitled” to assume that outsiders will respect the signal he’s
sent, Katz concludes.25 Justice Harlan’s concurring opinion in Katz
reinforces this point by stating that the Fourth Amendment protects
those “expectation[s] of privacy that society is prepared to recognize as
‘reasonable.’”26 Harlan’s remark takes it for granted that there is an
already-existing system of informal privacy norms compatible with the
text’s commitment to individual liberty. Constitutional interpretation,

24

Indeed, there was a body of law that permitted nontrespassory warrantless electronic surveillance
of phone conversations. The leading case was Olmstead v. United States, 277 U.S. 438 (1928).
25
Katz, 389 U.S. at 352, overruling Olmstead.
26

Katz at 361 (Harlan, J., concurring).


Introduction

13

it thus suggests, must aim at articulating those norms and protecting
them against government incursion. This is surely a sound way to
begin thinking about constitutional privacy rights, for it concedes by
implication that the norms at stake can’t be found in founding-era
comments on the text but that they nonetheless merit constitutional
protection.
Harlan’s remark is no more than a starting point for thinking
about privacy, however. In building on it, I suggest that privacy
conventions, as they have emerged over the centuries, are understandable in terms of three enduring characteristics. First, they are
paradigmatically concerned with two-party, insider/outsider relationships. Second, the outer boundaries of such relationships are understandable in terms of the function of seclusion and informational
privacy—that is, the exclusionary practices employed for each type of
privacy are accepted as legitimate because of their contribution to
individual dignity and personal flourishing. And third, the terms of
exclusion are enforced not merely by physical barriers (though these
are of course often matter a great deal) but also by outsiders’
adoption of conventions that call for restraint with respect to those
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 other. Think first
about solitude. Someone can simply be alone—that is, aloneness
doesn’t necessarily involve exclusion of others, though it of course
sometimes does, so solitude need not have anything to do with the

more complex, and freighted, relationships associated with privacy.27
As for secrecy, exclusion is essential here, but privacy-exclusion
imposes obligations on outsiders in ways mere secrecy doesn’t. When
it’s clear that privacy is at stake (for example, when someone closes the
door to a bathroom), social conventions call on outsiders to exercise

27
I use solitude rather than isolation, but each connotes the possibility of being alone without
relying on an exclusionary practice. An examination of privacy that contrasts it with isolation can
be found in Julie Inness, Privacy, Intimacy, and Isolation (1996).


14

Privacy and the American Constitution

restraint precisely because it appears that an insider is engaged in an
activity associated with personal life. Secrecy, in contrast, has no
necessary connection to the conditions of personal flourishing.
Corporations protect trade secrets, governments guard state secrets—
but while exclusion is essential to informational control in these settings, what is kept from others has no bearing on personal life.28 Thus
with privacy, but not necessarily with secrecy, one encounters a web of
complex obligations outsiders are expected to honor given their function in promoting the well-being of insiders. Put differently, privacy,
unlike secrecy, operates by means of a network of reciprocal obligations, with individuals accepting their role as outsiders in anticipation
of a later time in which they will be insiders.
During the course of the book, I endorse Katz’s turn to privacy as an
independent constitutional norm. I do not, however, endorse some of
the Court’s conclusions concerning the content of those norms. In
particular, I suggest that the Court has often interpreted those norms
without sufficient regard for privacy’s function in protecting individual

dignity. It has reasoned in terms of a vigilance, rather than a forbearance, model of informational privacy, I suggest—and so has placed
excessive emphasis on the precautionary steps insiders take to keep
people out and disregarded the restraint outsiders are expected to
exercise once it’s clear someone is trying to exclude others from the
personal sources of her life.29
The Court has not invariably reasoned in terms of a vigilance
conception of privacy, I point out. In the 2000 case of Bond v.
United States, for instance, it held that once someone has zipped up
an opaque duffel bag, a government agent intrudes on the owner’s
privacy interests by squeezing it from the outside to determine its
contents.30 On a vigilance conception of privacy, squeezing such a
28
It’s thus significant that statutes are framed in terms of corporate and government secrecy, not in
terms of corporate and government privacy. See, e.g., 18 U.S.C. 1832 (“Theft of Trade Secrets”).
29
In distinguishing between vigilance and forbearance models of informational privacy protection
during the course of the book, I draw on William Heffernan, “Fourth Amendment Privacy
Interests,” 92 Journal of Criminal Law and Criminology 1 (2001).
30
Bond v. United States, 529 U.S. 334 (2000).


Introduction

15

bag is an acceptable practice, for travelers assume the risk, a proponent
of this version of privacy would say, that outsiders will squeeze their
luggage, shake it, or turn it upside down to see if anything happens to
fall out—do anything, in other words, other than open it (for this

would stand as a flagrant breach of privacy conventions that’s intolerable even on a vigilance model) to find out more about its contents.
Bond rejects the vigilance premises just noted. It reasons in terms of an
obligation of restraint an outsider must honor once an insider has
signaled an interest in privacy by zipping her baggage.
Bond, however, is an exception to a general pattern in post-Katz cases, for
these have typically emphasized vigilance over forbearance. In questioning
the soundness of the positions the Court has taken, I outline the possibility
of a regime of constitutional protection for privacy informed by forbearance considerations. By adopting this approach, I suggest, we can emphasize the mutually reinforcing role of different components of the system of
privacy rights—seclusion, control over the informational sources of one’s
life, and personal autonomy. Although the Court has reached conclusions
that protect each type of privacy just mentioned, it has rarely noted how
they converge in protecting individuals in the conduct of personal life. The
forbearance model, I suggest, is valuable because it affirms this point—and
so affirms the importance of an approach to privacy that cuts across
different specific provisions of the constitutional text.

Insuring Privacy Against Incursions
by the Surveillance State
Phone booths are fast disappearing from everyday life. As they’ve
become obsolete, the significance of Katz’s reference to “shut[ting]
the door” against the outside world may cease to be clear to later
generations. This point about the obsolescence of specific practices
has a bearing on constitutional privacy rights, however, only if
Harlan’s Katz remark is understood to refer to concrete, locationspecific social norms—to phone booth etiquette, for instance. In the
book’s later chapters, I suggest that the Harlan Katz concurrence can


16

Privacy and the American Constitution

be interpreted in a different way. It can be understood, I argue, to refer
to the structure and function of privacy conventions. As for structure,
these conventions perform complementary roles, with seclusion and
informational control furthering the possibility of personal autonomy.
As for function, the first two components matter because the third is an
end in itself—that is, it’s because people highly value the opportunity
to order their personal lives that seclusion and informational control
are also deemed important. In suggesting that society’s expectations of
privacy are understandable in terms of the notion of forbearance, I thus
argue that outsider restraint is essential to the autonomy considerations
that inform privacy rights.
Drawing on the forbearance model in the later chapters of the book, I
propose options for addressing novel privacy claims, not merely those
associated with innovative technologies but also those that depart from
traditional mores. As far as the latter is concerned, forbearance will be
critical in the future since restraint in the face of deviant behavior is
essential to the very notion of respect for each person’s authority to make
decisions concerning his or her life. The privacy rights associated with
autonomy—not merely rights that protect sexual and reproductive
choice but also those concerned with other features of personal life
(modes of dying,31 for instance, or the selection of a housemate32)—
are understandable in terms of the restraint expected of outsiders on
encountering behavior they consider improper but that nonetheless
causes no direct harm to others. The restraint at stake here has much
in common with toleration—not, of course, with toleration as that
concept was originally applied to deviations from religious orthodoxy
but rather toleration in a broader sense that accepts, perhaps reluctantly,
norms of forbearance on being confronted with distasteful, but not
harmful, behavior.

31
The Court addressed this issue in Cruzan v. Director, Mo. Department of Health, 497 U.S. 261
(1990).
32
The Court considered this issue, in the context of a challenge to a zoning regulation, in Moore v.
City of East Cleveland, 431 U.S. 494 (1977).