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This is a column on privacy. And a column on contraception. And a column on Supreme Court justices and the Constitution. So maybe I shouldn’t be blunt while discussing such serious and delicate topics. But here goes — Justice Scalia is in bed with Justice Douglas. And even worse, the other justices have averted their eyes from the coupling, perhaps intoxicated or distracted by their own love-fest of privacy. Not that there has literally been any trysting, of course; William O. Douglas has been dead for years, and Antonin Scalia is, to the best of my knowledge, happily married. But the two are perhaps more intimate ideological bedfellows than either would ever want to admit. How so? Basically, during the last several weeks, nine justices on five different sides of two decisions debated the reach of the Constitution’s right to privacy. That might make you think they all agree that the Constitution does guarantee privacy. And you’d be right. Problem is, that word — privacy — appears nowhere in the Constitution, even today. So how is it, as Bartnicki v. Vopper and Kyllo v. United States demonstrate, that all the justices have found a right and a word that’s not there? And that Scalia, champion of interpreting the Constitution in light of its original intent and its text, could actually write an opinion exalting the right to privacy? ‘GRISWOLD’ PAST To understand, look back to 1965 and the Supreme Court’s decision in Griswold v. Connecticut. There, the Court decided that a state could not prohibit doctors from advising married couples on using contraception. Just as important as the holding itself was that the justices reached it through a right to privacy. But not without a fight. The biggest face-off was between Justices Douglas and Hugo Black. Douglas, writing for the majority, drafted one of the most memorable decisions in Court history, using reasoning that almost conjured up the ghost of Christmas past. Or, in his own words, “[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” Black’s dissent, equally memorable, stood firm on the text of the Constitution: “The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not.” Apparently, our current Supreme Court justices have forgotten all about this historic clash. There’s not a single mention of Griswold in either Bartnicki or Kyllo. In Bartnicki, the Court held that the First Amendment gave a radio journalist the right to broadcast a recording of a cell phone conversation between two union organizers despite federal and state laws making it illegal to intercept such conversations. In Kyllo, Scalia, writing for the Court, held that police cannot use the scanning of heat emissions as a basis to get a warrant to search the house of a man suspected of growing marijuana with high-intensity lights. TALKING PRIVACY Viewed narrowly, neither holding is all that stunning. Everyone knows that the Supreme Court gives the First Amendment a wide berth. And, at least this term, the Court has been somewhat strict in reining in police conduct that brushes up against the Fourth Amendment’s requirement that the government conduct searches only when it has probable cause. Never mind that the cases seem inconsistent. One holds that heat emissions from houses cannot be lawfully intercepted, while the other allows unauthorized use of an intercepted emission — radio waves from a cell phone. What should be minded is that the privacy debate has ended. Here, in two decisions released within weeks of each other, during a time when Americans are arguably more concerned about privacy than ever before, all nine justices have, in majority, concurring, and dissenting opinions, expressed their acceptance of privacy rights in the Constitution. It might not be the first time that all the sitting justices have accepted such a right, but the language of the decisions and the one-two punch of their release appear to floor the idea that the Constitution is silent on privacy. For supporters of Douglas (myself included), this seems to be cause to celebrate. But is it a good thing? And is the debate actually over? Maybe the safest thing to say is that the semantic debate is over. This is 2001, not 1965. Telltale signs are being left not only by cell phones and high-intensity lights but also by e-mails, Web browsers, saliva, skin, fabric, and pretty much anything else you can think of. This makes people nervous. And Scalia is no one’s fool. By exalting privacy, he appears to have taken up a cause that people instinctively support. “The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy,” his Kyllo opinion states. But has Scalia really accepted the right to privacy? Has he really abandoned his textual approach to interpreting the Constitution? And does he really have more in common with the intellectually freewheeling Douglas than with the literalist Black? Of course not. For all the rhetoric in Scalia’s Kyllo decision, and in Chief Justice William Rehnquist’s Bartnicki dissent, their conception of privacy is merely the justices’ familiar conservative doctrines draped in PC (politically and privately correct) clothing. In Kyllo, Scalia makes clear that the privacy he speaks about isn’t the generalized right that the Court used in part to legalize contraception, abortion, and any number of other things that most Americans now view as indispensable to modern life. Rather, it’s a very limited right that springs from, and goes no further than, the Fourth Amendment itself. As Scalia wrote, “While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no ‘significant’ compromise of the homeowner’s privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward.” And Rehnquist’s Bartnicki dissent similarly limits to the First Amendment itself the privacy right that he would have upheld: “These laws … promote the privacy and free speech of those using cellular telephones,” he says. “These statutes undeniably protect this venerable right of privacy. Concomitantly, they further the First Amendment rights of the parties to the conversation.” As Rehnquist makes clear, he views a person’s right to control when her speech becomes public as an integral aspect of the First Amendment. UNDERNEATH IT ALL So that takes care of part of the privacy puzzle: Rehnquist’s and Scalia’s versions of privacy don’t hang on the gossamer threads of penumbras and shadows, but on the cold, hard text of the Constitution. Sturdy, to be sure, but so narrow as to make one question whether the reasoning really relates to privacy at all. Which is to say, Douglas and Scalia aren’t soul mates, after all. (Interestingly, Scalia’s reasoning also violates Black’s caution, way back in Griswold, against reading privacy into the Fourth Amendment.) But there’s more. Look beyond the privacy issues in the two cases, and even beyond the First and Fourth Amendment questions. In Bartnicki, one of the laws at issue was the Omnibus Crime Control and Safe Streets Act of 1968. While the plaintiffs sued under its civil law provisions, the act also contains criminal sections. The majority’s interpretation of the First Amendment would weaken those criminal sections. And while it may be surprising to see Rehnquist as a privacy advocate, it is not at all novel to see him advocating a tough law-and-order stance on crime. Kyllo offers an even more vivid example. There, Scalia makes clear that he views a person’s home as his castle, which the law should respect: “In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.” This respect for the home is simply a subcategory of respect for private property. And that’s a theme very dear to Scalia’s heart. Not only does the call of property rights resonate between the ears of every Fifth Amendment stalwart convinced that all government regulations are takings requiring compensation, it’s also a theme that Scalia sees in the text of the Constitution, but is convinced that the Supreme Court has neglected. As he writes in his 1997 book, “A Matter of Interpretation,” “[T]he record of history refutes the proposition that the evolving Constitution will invariably enlarge individual rights. The most obvious refutation is the modern Court’s limitation of the constitutional protections afforded to property.” Which is to say, look closer at Scalia’s embrace of privacy rights and his apparent abandonment of textualism, and it seems that all he’s really doing is advancing the very traditionally conservative idea of property rights — an idea that, to top everything off, he believes is part of the text and original intent of the Constitution. Historian Eric Foner in his 1998 book, “The Story of American Freedom,” explored another word that has talismanic significance for Americans: “Rather than seeing freedom as a fixed category or predetermined concept, I view it as an ‘essentially contested concept,’ one that by its very nature is the subject of disagreement.” The same, it would seem, is true of privacy. Not that the justices would ever tell you that. You see, it’s private. Evan P. Schultz is associate legal editor at Legal Times . He can be reached at [email protected]

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