As the Senate prepares to consider the Supreme Court nomination of Neil Gorsuch, an avowed originalist, William Heffernan has published a timely book on the right to privacy, a contentious issue that has bedeviled conservatives. It is a compelling read which not only traces the development of a “right” that is not expressly mentioned in the Constitution, but also analyzes the “practice of interpretive supplementation” on which it relies.
Like Gorsuch, the late Justice Antonin Scalia was also an originalist. Writing in the National Review after Scalia’s death, the constitutional scholar Jesse Panuccio wrote that Scalia “issued a clarion call for adherence to the original public meaning of the Constitution and a restoration of the proper, limited role of the judicial branch.”
Concisely defined, the right to privacy protects a space or domain around the body, private property, decisions, thoughts, secrets, and identity. Federal statutes protect the privacy of health and consumer information. Since the 1960s, the Supreme Court has also recognized a constitutional right to privacy.
Scalia took a dim view of the constitutional right to privacy, deriding it as either a “judicial invention” (Lawrence v. Texas) or as “not in the text” (NASA v. Nelson). The author finds Scalia’s originalism to be overly rigid.
He begins his analysis with two observations. First, the text of the Constitution is the customary starting point for any principled analysis. Second, while portions of the text are precise, others are vague. The vague portions, of course, require interpretation.
The author’s main proposition is that the right to privacy is legitimate because it is a product of a flexible brand of “originalism” advocated by a key founding father, James Madison, which permits interpretative supplementation of those vague portions of the text that suggest “the possibility of unmentioned powers and rights.”
In The Federalist 39, Madison spoke of the Constitution as “the plan of government reported by the convention.” The author notes that leading dictionaries of Madison’s day defined “plan” in two ways: (1) plan as draught, such as a blueprint, meant for material objects; and (2) plan as scheme, expressed in words, to engage in future conduct.
In addressing textual vagueness, or the “premise of incomplete textual specification,” the author observes that, “[a]lthough Madison spoke of the text as a plan, he frequently emphasized that it was incomplete.”
According to the author, Madison’s “comments on both the Ninth and Tenth Amendments establish that he considered the enumeration of rights and that of powers to be non-exhaustive.” He notes that because the text intimates the possibility of unmentioned powers and rights, one can grasp the “uncertainty a reasonable reader of the text would have experienced at the time of the founding.” Therefore, he concludes, “because the outer boundaries of powers and rights were unclear” at the founding, it is proper to speak of the Constitution as “a scheme, not a draught, of government.”
As a prime example of “Madison’s framework of interpretative supplementation,” the author notes that, in 1791, Congressman Madison unsuccessfully opposed legislation establishing a national bank because the Constitution did not expressly grant or imply such a power.
In 1816, however, President Madison agreed to legislation extending the bank’s life, “decid[ing] that post-founding national experience should guide him in deciding whether and how to supplement the text.” The author notes that Madison’s support of interpretative supplementation was confirmed in a letter he wrote in November 1826 to the Marquis de Lafayette, in which he stated that his 1816 decision dutifully followed the practice of “every administration preceding mine, with the general concurrence of the state authorities, and the acquiescence of the people at large[.]“
In thus defining the “Madisonian framework,” or “plan-as-scheme originalism,” the author states that it is preferable to Article V amendment “when it (i) does not run afoul of a textual mandate or prohibition, (ii) is compatible with the overall constitutional design, and (iii) is consistent with a supermajority consensus discernible in the course of longstanding national practice.”
Turning to privacy, the author writes that the privacy of life was not seen as intrinsically valuable at the founding of the republic. For the early advocates of republicanism, the protection of private property rights was paramount.
In 1965, the Supreme Court first recognized the right to privacy, holding that the government could not forbid married adults from using contraceptives (Griswold v. Connecticut). Ruling that the right protected the marital bedroom and decisional autonomy, the court reasoned that the right could be inferred from the interests protected by the First, Third, Fourth, Fifth, and Fourteenth Amendments. The author concludes that, although Griswold is inartful, it engaged in a “developmental supplementation of the text” that is faithful to the Madisonian framework.
In 1967, the Supreme Court first recognized the right to communicative privacy in Katz v. U.S., in which it held that warrantless government eavesdropping violated the Fourth Amendment. The author notes that Katz not only fit the Madisonian framework (as evidenced by mid-1900s legislative trends), but it was also the first case to liberate “informational privacy from property rights.”
A strength of the book is its treatment of informational privacy, a topic the Supreme Court first addressed in 1977. In Whalen v. Roe, the court extended the right to privacy to personal information, when it addressed control over the disclosure of personal information possessed by the government. The author observes that, conceptually, Whalen superimposed “informational privacy” on the text in an exercise in “developmental supplementation” that “modernized the contours of constitutional law.”
The most insightful chapter in the book addresses “rights of personal autonomy.” The author posits that Lawrence v. Texas (constitutional protection recognized for same-sex relations) was a valid innovation under the Madisonian framework because by 2003 a supermajority of 37 states had repealed their sodomy laws. He also states, however, that Roe v. Wade did not fit the Madisonian framework because it lacked the supermajority consensus “in favor of the conclusions [it] reached.” He concludes that Roe could have fit within that framework had been “grounded in [an] equal protection analysis.”