The quest for privacy: state courts and an elusive right.

• Author: Friedelbaum, Stanley H.

AN INTRODUCTORY REVIEW

If a right to privacy can hardly be considered a newfound concept, the meanings ascribed to it have long taken on an ever-changing, chameleonic cast. The American version of privacy, founded in English constitutional history and, less notably, in the French Enlightenment, did not manifest itself in modern guise until the late nineteenth and early twentieth centuries, when it became a distinct political and philosophical force. (1) The notion of a "right to be let alone" emerged as an attribute of human liberty with the appearance in 1890 of the now famous Warren-Brandies article. (2) Yet its origins in American constitutional tradition are even more deeply rooted in the past--in colonial events, the Revolutionary era, and the early years of the Republic, as well as in the developments that followed,

Due process liberty dated from the adoption of the Fifth Amendment and its subsequent conversion and application to state action by way of the Fourteenth Amendment. (3) It was the latter that came to serve as a fount of protection affecting intimate personal relations, ranging from parental control over the education of their children, to health choices, the selection of reproductive options, and decisions concerning sexual behavior. (4) If an explicit source was to be found in the Bill of Rights, however, it lay in the Fourth Amendment and the search-and-seizure law to which it gave form and substance. (5) Nonetheless, for all of the references to original intent and the debates that continue to engulf it, definitions of privacy rights remain varied, notwithstanding a lengthy historical record and an extensive list of precursory doctrines and indicia. (6)

The preservation of privacy has grown more difficult and demanding as society has had to face the challenge of increasingly complex and intrusive technological advances. (7) Americans expect the innermost aspects of their personal lives to be shielded from, and, in fact, to be cordoned off from state intervention. All the same, the constitutional basis for such a sheltered framework has not always been clearly established. Doubtless, the Framers of the original Constitution were aware of the need to create some type of protective barrier between the individual and the state. Yet the exact language to accomplish this end and to ensure its implementation seemed difficult to provide. (8) Apart from the buffer in the Fourth Amendment, the authors of the Bill of Rights offered little that could be construed as a privacy safeguard. Perhaps their principal contribution lay in the spirit of liberty conveyed in the first eight amendments.(9) A defined right of privacy remained for another day if indeed such a right was ever to be included in the charter of a nation that had always assumed it as a birthright, albeit one that defied easy categorization. (10)

It was the Fourteenth Amendment, adopted in the aftermath of the Civil War, that supplied the raw material that, decades later, led to the crafting of a judicially created right of privacy. (11) Ill-starred, but not surprising at the time, and among the indicators of a revived attachment to liberty interests, were theories of Social Darwinism that began to take on constitutional significance. Such theories, setting forth harsh derivatives of economic laissez-faire, were exemplified in the oft-noted case, Lochner v. New York, decided in 1905. (12) Lochner became the standard-bearer of an era marked by negativism and by repeatedly encroaching judicial intervention into the realm of state control over employer-employee relations. (13) The reach of the state's police power was limited in ways hitherto unknown.

In the wake of the Great Depression and President Franklin D. Roosevelt's unprecedented court-packing crusade, a majority of the Justices who adhered to extremes of judicial negativism either retired or relented. (14) A broad doctrine of deference to legislative prerogatives replaced substantive due process as the salient dogma of a Court that, in a remarkable change of course, closely reflected the President's expansive perception of governmental services and purposes. (15) As proponents of the Court's newly approved posture were prone to claim, the shield afforded private enterprise was no longer to serve as the broad bulwark of liberty-of-contract issues portrayed in Lochner.

Meanwhile, a changed role for substantive due process, abandoned as a diffused, controlling source of unrequited negativism, slowly began to reappear in more traditional manifestations of liberty. The durability of these manifestations in the American credo of essential beliefs came to light despite a wave of xenophobia that swept the country following World War I. State-imposed restrictions on the teaching of foreign languages were set aside as contrary to principles sustaining "the orderly pursuit of happiness by free men." (16) The required attendance of children at public rather than private schools was held unconstitutional amid assurances that a child was not a "mere creature" of the state. (17) Yet, unmistakably if pejoratively, an "inverse" form of substantive due process reemerged when, in 1927, the Court sustained a state sterilization law, seemingly in response to a then-growing pseudo-scientific euphoria over the virtues of eliminating the unfit from society. (18) Thematic shifts during World War II, this time by way of equal protection, persuaded the Court to repudiate, at least in part, its defense of compulsory state sterilization. (19)

There followed increasing hints of a shaky reliance on a judicially revised and enlarged Fourteenth Amendment to protect against needless or immoderate displays of invasive state legislation. The latter threatened personal liberties, not merely the containment of socially unacceptable economic gain subsumed under the broader rubric of private property rights. The Warren Court translated many newly devised concepts of liberty, intended to counteract adverse state laws, into an updated corpus often at war with what a number of states took to be their established historic prerogatives. (20) A corrosive, deterrent factor during this period was the Court's extreme reluctance to revive substantive due process, even in its most elemental and restricted form. In fact, a return to selected aspects of this discredited doctrine was required as an alternative to a series of closely related, if poorly conceived, substitutes--the products of defective judicial inventiveness.

At the threshold of a dramatic reformulation, the Supreme Court faced a dilemma that appeared to be intractable, if not insoluble. References to substantive due process seemed certain to reactivate deeply held, barely muted, internal conflicts. Such stalwarts as Justice Hugo Black could be expected to root out any allusions to substantive due process as the basis for decisions, however much he might favor the results flowing from such "untoward" activities. (21) A contrivance had to be devised, no matter how deceptive the stratagem. Nothing less was required to avoid the trauma that loomed as the Warren Court embarked upon an expansion of the individual's right to privacy.

The route finally settled upon was grounded in an incredulous composite drawn from the Bill of Rights, presumably an impeccable source, guarded from denunciation as heralding a return to a forbidden terrain. In Griswold v. Connecticut, Justice William Douglas, no stranger to practical, if not always highly principled procedures, referred to five of the first eight amendments as the basis for what he termed "zones of privacy." (22) The sources lay in "penumbras" that he found to have been created by emanations from long-held constitutional tenets set out by way of an imaginative, albeit a dubious and readily challengeable, sweep of relativism. (23) What prompted this unusual, if well-timed experiment, was the majority's determined effort to negate a state's anti-contraception statute that had failed to be cast aside on two previous occasions. (24)

It was clear that a more forthright approach to the problem would have involved a revived substantive due process, as Justice John M. Harlan noted in a concurrence characterizing the law in question as violative of "basic values `implicit in the concept of ordered liberty.'" (25) As court watchers might have anticipated, Justice Hugo Black objected vigorously to Douglas's ruminations and fanciful ventures. (26) Black decried what he took to be an attempted reintroduction of principles of `"natural justice"'--no less hazardous when applied to personal rights than to economic rights. (27)

Notwithstanding such misgivings, the Court went on to expand privacy rights in a subsequent contraception case. A majority affirmed the right of persons not to be thwarted by "unwarranted governmental intrusion" when making decisions whether to beget or to bear a child. (28) The case proved to be but a step away from the Court's dramatic entry the following year into the maelstrom of abortion rights established by an undisguised reliance on due process liberty.

The decision in Roe v. Wade took on many of the trappings of substantive legislation as Justice Harry Blackmun, for the majority, prescribed the stages of pregnancy excluded from state intervention, thereby asserting, in limited fashion, the right of women to determine whether or not to terminate their pregnancies. (29) No longer could there be any doubt that the Court had reembraced substantive due process after decades of desuetude. Whether Roe v. Wade would survive efforts to limit its scope and effects remained in doubt until 1992 when a newly formed coalition reinvigorated it as a lasting precedent not to be repudiated. (30)

All the same, the future of privacy rights continued to be uncertain in a Court that declined to assume a persistently expansive role. When, in 1986, a majority refused to approve further expansion of privacy protection...