A New Approach to the Right to Privacy

Rachel Oda (PO ’20) 

Guest Contributor 

 The right to privacy, properly understood, is not a shaky cluster of rights, but rather a single, fundamental right that forms the basis of our autonomy. It is a right to one’s person and to control one’s person. I argue it serves as the cornerstone of our Constitution because it provides the basis for many other individual rights, such as the right to speak freely, assemble, exercise control over property, and vote.   

In this essay, I appeal to originalists and non-originalists alike to advance my theory of the right to privacy. Originalists should favor my view because it invokes the original meaning of property, and consequently privacy, as first articulated at the time of the Founding. I also draw upon John Locke’s theory of property, which states that the most fundamental form of property is the property we have in our persons. Thus, the right to privacy, at its core, is the right to control the property inalienably possessed within ourselves. My theory, however, also employs a method of non-originalist constitutional interpretation that focuses on the law speaking with one voice, framing the right to privacy as the connecting principle behind many of our other rights.  

In the latter part of my essay, I apply my theory of privacy to the specifics of the law. I describe how a “least restrictive means” test functions as a helpful tool for deciding cases and weighing privacy interests fairly. Finally, I note that the current rise of technology and cyber-security demands a firmly-grounded, principled understanding of constitutional privacy.   

Finally, the terms “privacy” and “property” are not interchangeable and I do not want these terms to be confused. I believe that the right to privacy invokes the right to control the property inalienably possessed in one’s own person.    

  1. The Right to Privacy Properly Understood   

The right to privacy is a fundamental right that deserves the same constitutional treatment as our rights to freedom of speech and equal protection under the law. These rights are crucial to ensuring individual liberty, each protecting a critical component of our existence in a just society. My theory challenges the popular conceptions of the right to privacy that it is merely drawn from a cluster of rights or is an abstract idea outside the text of the Constitution.[ref] For privacy as a cluster of rights, see Judith Jarvis Thomson, The Right to Privacy, 4 Philos. Public Aff. 295 (1975); Griswold v. Connecticut, 381 U.S. 479 (1965). For privacy separated from considerations of property, see Samuel Warren & Louis Brandeis, The Right to Privacy, 4 Harv. L Rev. 193 (1890).[/ref]

The former conception of privacy stems from the Supreme Court’s decision in Griswold v. Connecticut, in which Justice William Douglas envisioned the right to privacy as a “penumbra formed by emanations” from the guarantees articulated in the Bill of Rights.[ref] Griswold, 381 U.S. at 484.[/ref] Douglas argued that the First, Third, Fourth, Fifth, and Ninth Amendments create “zones of privacy” from which the right to privacy must be inferred.[ref]  Id.[/ref] More recently, in Lawrence v. Texas, the Court has housed the right to privacy under the Fourteenth Amendment’s Due Process Clause.[ref] Lawrence v. Texas, 539 U.S. 558 (2003).[/ref] The latter conception of privacy was also famously voiced by Samuel Warren and Louis Brandeis in their piece “The Right to Privacy,” published in 1890.[ref] See generally Warren & Brandeis, supra note 1 (Their piece argues that while a right to privacy is not in the Constitution, it should be recognized and respected by the government. Many scholars view it as the first to explicitly advocate for a right to privacy).[/ref]

In Griswold, Douglas wrote that several amendments strung together create the right to privacy, but I argue the opposite. In my view, the right to privacy articulates a basic principle — a right to control our person — and it provides the basis for the fundamental rights explicitly articulated in the Constitution, such as freedom of speech and protection from unreasonable search and seizure. If we do not have a right to control ourselves, then what gives us the right to control our own speech, who comes into our home, or how we are treated in court? In a sense, the right to privacy is the invisible backbone of the Constitution and the enumerated amendments are the arms and legs which require its structure and purpose to hold together in one unified body.   

A simple reading of the Constitution could lead one to believe that the right to privacy is covered by the Fourth Amendment because it directly enumerates protections of our persons, houses, papers, and effects from unreasonable search and seizure. However, I argue that just because “unreasonable searches and seizures” are written in the Constitution does not mean that protections from them are the extent of your privacy rights. The right to privacy is far more comprehensive. I argue the right to privacy is the core principle that grants us the power to claim our constitutional rights. When we have the right to control our person, we have the right to control the things connected to our person such as our speech, houses, and papers. Rather than the Constitution consisting of a cluster of rights that give rise to a right to privacy, the right to privacy gives rise to the Constitution itself. Properly understood, the Constitution articulates specific freedoms which flow from this right: for example, the First Amendment comprises the right to control one’s societal identity as a person and the Fourth Amendment includes the right to protect the property which one mixes with one’s person.  

The right to control one’s person is inherent, and one’s house, papers, and effects are protected by this fundamental right because we mix ourselves with these objects and make them a part of who we are and how we interact with the world. Our person is the vessel by which we engage with the world, and our houses, papers, and effects are objects which we use in this engagement. In addition to these objects that we mix with our person, we most importantly have property in ourselves. Put another way, the Fourth Amendment does not fully encompass our privacy rights. It is because we have a right to privacy, or the right to control our person, that we can claim a right to be protected from unreasonable search and seizure of our persons, houses, and effects.  

In his 1792 paper Property, James Madison presents a similar theory: “This term [property] in its particular application means ‘that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.’ In its larger and juster meaning, it embraces everything to which a man may attach a value and have a right. . . . He has a property very dear to him in the safety and liberty of his person.”[ref] James Madison, Property (Mar. 29, 1792), reprinted in 1 The Founders’ Constitution 266 (Philip B. Kurland & Ralph Lerner eds., U. Chi. Press 1977), http://press-pubs.uchicago.edu/founders/documents/v1ch16s23.html.[/ref] According to Madison, privacy is a protection of property within our persons and personal space. Since property embraces everything of value to a person, it must be that the property within is the most valuable form of property. Protecting and controlling this property, then, is critical to individual liberty.   

The First, Fourth, and Fourteenth Amendments, properly understood, are specific invocations of the underlying principle of the right to one’s person. For example, we see this conception of property, the right to control oneself, in our freedom of speech, which is certainly something to which we “attach value and have a right.” In fact, Madison articulated this sentiment when he stated that “a man has property in his opinions and the free communication of them.”[ref] Id.[/ref] Our right to free speech protects our ability to express ourselves — a central component of being a person — and our societal identity as a person that is created when we mix our person with society.    

One may question what kinds of things fall into our right to our person and personal space. Where is the boundary between private and public? More specifically, under my conception of privacy, what would be private and thus within our control and what would be public and thus outside of our control? In response, I argue that the right to control your person and personal space naturally extends to a right to control your personal things. This fundamental right extends to the objects that are areas of our personal space and serve as vehicles for self-expression. These are objects intimate to the cultivation of our own identities and, thus, are not open to the public eye. The specifics of what is considered private or public are best considered individually, but the right to control personal things sets a general guiding principle. Whatever is reasonably understood as within our person or as an extension of our person deserves protection.   

 Both personal and private property are protected by the Constitution and fall within my understanding of what should be protected under our right to privacy. Personal property can be seen as your personal space, such as your clothes or your home. It includes the objects which you mix with your person and, therefore, are an extension of your person. Your right to personal property is violated when others take control of your personal space, such as by taking your clothes off of you or breaking and entering your home. Private property, on the other hand, includes the objects which you mix with your person, but do not hold in your personal space, such as the plants in the front yard of your home or the restaurant you own. An invasion of private property does not invade personal space, but it still constitutes a violation of one’s right to privacy. I clarify this distinction by using the home as an example.   

Imagine that you own a home and have rented it out to a family through Airbnb. If the police conduct an unreasonable search and seizure of that home while the family is staying there, then that search violates the family’s personal property rights and your private property rights. At the time of the search, the home falls within the family’s personal property because they were in the home at the time and the search invades their personal space. Your private property rights were violated because you have extended your personhood to the home, but it is not something within your personal space at the time of the search. While this distinction is important to understanding my theory of personal and private property, it makes little difference because the unreasonable search violates the privacy of both you and the family. Protecting personal and private property is critical to individual liberty, and they are both best understood as extensions of the right to your person.   

  1. An Appeal to Originalists 

Justice Antonin Scalia, a leading originalist, argued that in order to understand the original meaning of the Constitution, one must read the work of the Founders and of those who inspired the Founders. In his writings, Scalia extensively uses The Federalist Papers to defend his interpretation of the Constitution. My interpretation of the right to privacy uses the same method of calling upon the work of the Founders and the texts that inspired them to interpret and understand the Constitution. As discussed previously, James Madison defined property to include that which is within one’s person and one’s personal space. His ideas undoubtedly influenced the writing of the Constitution, and they are at the core of a proper conception of the right to privacy.   

Moreover, my theory of privacy draws upon John Locke’s theory of property. Locke argued that we have an inviolable right to property in ourselves, famously stating that “[e]very man has a property in his own person,” which “nobody has any right to.”[ref] John LockeSecond Treatise of Government 11 (Jonathan Bennett ed., 2008) (1690), https://www.earlymoderntexts.com/assets/pdfs/locke1689a.pdf.%5B/ref%5D Thus, controlling this property aligns with my theory of privacy rights. Locke’s conception of inalienable rights to “life, liberty, and possessions”[ref] Id. at 28{/ref] also serves as the foundation of the Declaration of Independence. It is important to note the difference between the right to life and the right to property. When you extend your person to the property around you, you gain the right to those things. Thus, it is your interaction with objects that gives you the right to them as your property. Locke argued that when man leaves the state of nature, he has a right to own land because his mere existence endows him with the right to combine his person with the land around him.[ref] Id. at 13.[/ref] Likewise, you have a right to privacy in your home because inhabiting your home makes it an extension of you. It is your personal space.  

The Founders were certainly inspired by Locke, so I contend that their conception of privacy is best understood through Locke’s idea that one deserves the right to exercise their liberty by controlling their person and the property manifested in oneself. Madison’s sentiments echo Locke’s, demonstrating that his ideas were originally understood at the time of the Founding. Therefore, we must root our notion of privacy rights in Locke, so as to reflect the understanding and inspiration of the Founders which guided them in writing the Constitution.   

  1. An Appeal to Non-Originalists  

In addition to reflecting the original understanding of property articulated by Madison and Locke, my theory of the right to privacy draws from core constitutional principles. Our most basic rights and liberties depend on the fundamental rights made implicit in the Constitution. I argue that the right to privacy, properly understood, serves as the basis for our other major freedoms.   

In Law’s Empire, Ronald Dworkin argues that the text of the law is the statements of the community personified.{ref] Ronald Dworkin, Law’s Empire (1986).[\ref] Thus, the best legal interpretation makes the law speak with integrity, requiring clear principles to legislate society with a coherent, singular voice. My conception of privacy matches Dworkin’s theory because the right to privacy serves as that singular, coherent, underlying principle that connects each part of the law together. To return to my previous metaphor, the right to privacy is the backbone of the Constitution which connects the amendments as limbs with structure, purpose, and coherence. Furthermore, a person without integrity or consistency is spineless, and I agree with Dworkin that the same goes for legal doctrine. In the same sense, the law that speaks with integrity has a backbone: a clear, underlying principle that forms the basis by which we understand all of our other laws.  

The right to privacy is that backbone from which other laws stem from. It is the connecting principle between our fundamental rights. Properly understood, the right to privacy is the right to control our person that forms the basis of our enumerated constitutional rights. For example, what gives us claim to freedom of speech? Although this right is not absolute, it is rooted in our ability to control ourselves. Similarly, why do we have a fundamental right to marry? As defined by Obergefell v. Hodges, marriage “allow[s] persons, within a lawful realm, to define and express their identity” and it is a personal choice which is “central to individual dignity and autonomy.”[ref] Obergefell v. Hodges, 135 S. Ct. 2584, 2593 (2015).[/ref] Our right to control our person, then, includes our freedom to decide with whom we want to intimately associate ourselves.  

If we do not have the right to control ourselves, then we lack the most fundamental component of being an autonomous person living in a free society. The right to privacy, most plausibly understood, protects the right we have to self-legislate and the critical distinction between personal and private. By viewing it this way, we give sufficient weight to this right, one that is most central to our peaceful existence in society and also is the bedrock of all our other most critical civil liberties.   

  1. The “Least Restrictive Means” Test   

When applying our fundamental right to privacy, the Supreme Court should use the “least restrictive means” test I have outlined below. The four criteria are intended to give appropriate weight to both liberty and security interests.   

  1. Does the government have a compelling interest?  
  2. Did the government use the “least restrictive means” to achieve this interest?  
  3. Were the means narrowly tailored to this interest?  
  4. Did the government take any other actions to protect the individual’s privacy?  

Similar to equal protection claims, the answer must be “yes” to criteria 1, 2, and 3 for the government to meet its burden and prevail. The difference here is that the individual’s right is the right to privacy, not the right to equal protection under the law. I add criterion 4 so that the government can present other evidence to show that it had the individual’s privacy rights in mind. The answer to this last criterion gives the Court a broader understanding of the government’s privacy concerns and is helpful in rendering a holistic opinion. However, it should not be the final factor in swaying the Court’s opinion one way or another.  

To give an extreme example, the government’s action could be using facial recognition technology to survey all U.S. citizens at all times to detect and prevent potential terrorist attacks. In that case, my test would be worded as follows:   

  1. Does the government have a compelling interest in detecting and preventing terrorist attacks? 
  1. Is using facial recognition technology on all people at all times the least restrictive means available to the government to detect and prevent terrorist attacks? 
  1. Is using the facial recognition technology the best means to detect and prevent terrorist attacks such that it would not infringe upon people’s right to privacy? 
  1. Did the government take other actions to protect the individual’s privacy? 

First, it would be relatively easy to establish that the government has a compelling interest in protecting Americans from terrorist attacks. However, criterion 2 places a heavy burden on the government to show that their usage of facial recognition technology is the least restrictive means to achieve that interest, which places a high value on the individual’s right to privacy. If it is successfully argued that the government could have used other technology to detect terrorist attacks that would not involve such omnipresent surveillance, then the Court may find that the government did not use the least restrictive means and thus fails the test. Or, if it is successfully argued that the government does not need to survey all Americans at all times and could have restricted surveillance in either or both of those areas, then the government would also fail the test according to criterion 2.  

I do not move onto the third and fourth criteria because the test fails criterion 2 and, thus, the government has failed to meet its burden. The government must fulfill all three criteria to show that its action does not unconstitutionally infringe upon the individual’s right to privacy.  

  1. Application to Shelton v. Tucker  

For an example of the Supreme Court using a least restrictive means test, consider Shelton v. Tucker.[ref] Shelton v. Tucker, 364 U.S. 479 (1960).[/ref] In this case, the Court invalidated a law on First Amendment claims, but I argue this is best understood as a privacy case. In 1960, an Arkansas statute required schoolteachers to file an affidavit that listed all of the organizations to which they belonged and the amount of money they had contributed to these groups in the past five years.[ref] Id. at 481.[/ref] Shelton, the petitioner, was a teacher who refused to file the affidavit and consequently did not have his teacher contract renewed. The lower courts ruled for Tucker, the president of the Little Rock school board, upholding the statute. The Supreme Court, however, decided in favor of Shelton and reversed the prior rulings by applying a least restrictive means test.  

Writing for the majority, Justice Potter Stewart determined that Arkansas had a legitimate and compelling interest in reviewing the “fitness and competence” of its teachers and, second, that the information requested in the affidavit would help the state in that review.[ref] Id. at 485.[/ref] Third, the Court found that the information requested in the affidavit was not kept confidential, so the state had not taken extra measures to protect individuals’ privacy when asking for the affidavit.[ref] Id. at 486.[/ref] Finally, the Court decided that asking for an affidavit went far beyond what was necessary for the state to review the fitness of their teachers.[ref] Id. at 489.[/ref] Moreover, the Court found that the information requested (the organizations to which each teacher belonged) did not actually speak to the teacher’s “fitness and competence” at all, which was its intended purpose.[ref] Id. at 490. [/ref] The affidavit was not the least restrictive means the state could have used to achieve their interest in assessing their teachers, and thus the Court struck down the state law. 

Contrary to the majority, however, I argue that Shelton is best understood as a privacy case that frames our right to selective disclosure as a logical extension of our right to control our person. Controlling information about oneself is a logical and reasonable effect of having ownership in oneself. In Madison’s words, property, “in its larger and juster sense,” embraces everything to which a man attaches value and to which he has a right. Shelton valued his voluntary associations.[ref] Madison, supra note 6.[/ref] Otherwise, he would not have been a part of them. Broadly, our associations are a form of property in ourselves and something to which we have a right. Moreover, Shelton elucidates the limit on the state to ask for and retain personal information about us. While one certainly has a right to those associations, the state must tread lightly when seeking to gain that information because it is sensitive and highly valued by the individual.   

  1. Conclusion  

Modern technology brings the balance of individual liberty versus national security to the forefront of our attention. As new innovations catalyze fast technological growth, some fear that the Constitution will not be able to account for critical privacy concerns. Technology law poses new, large challenges, so we may feel a need to throw out the old to accommodate the new, but I argue that doing so does not recognize the power and value of our Constitution and its timeless principles. Some even envision drafting an entirely new, digital Bill of Rights to govern our relationship with technology.[ref]See, e.g., FreedomWorks, FreedomWorks’ Digital Bill of Rights, http://fw-d7-freedomworks-org.s3.amazonaws.com/FreedomWorks%20Digital%20Bill%20of%20Rights.pdf. [/ref]I disagree. The Constitution can and should continue to govern our country with its founding principles and grant us our most fundamental freedoms. The right to privacy, properly understood, should provide the constitutional basis by which we can ensure that technology, along with all other aspects of modern life, does not damage our fundamental freedoms. I argue that my conception of the right to privacy should serve as the groundwork by which we constitutionally analyze and govern technology.  

My approach to privacy should appeal to originalists and living constitutionalists alike, providing a single theory by which we can write the next chapter of privacy law in a principled, coherent, and unified way. In A Theory of Justice, John Rawls advances the theory of overlapping consensus, a phenomenon in which individuals with vastly different philosophies agree upon and accept a particular principle or law for different reasons. I believe my theory exemplifies Rawls idea, and I hope that its appeal to different judicial perspectives will strengthen my argument for increased protection of privacy rights. We must have faith in the Constitution to weather the challenges arising from our changing relationship with technology and privacy. I believe that my theory of the right to privacy embodies the spirit of the Founders who were confronted with many large challenges, yet fostered a democracy to withstand the ages. The right to privacy provides us with the best way to navigate this nascent dimension of constitutional law that will develop greatly in the years to come.   



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