Vol. 14 No. 4 (April 2004), pp.275-279

THE RIGHT TO PRIVACY: RIGHTS AND LIBERTIES UNDER THE LAW, by Richard A. Glenn. Santa Barbara: ABC-CLIO, 2003. 399pp. Cloth $55. ISBN: 1-57607-716-0.

Reviewed by Daniel E. Smith, Department of History, Humanities, Philosophy and Political Science, Northwest Missouri State University. Email: desmith@mail.nwmissouri.edu.

Of the rights protected by the U.S. Constitution, the right to privacy is the most difficult to understand. The most obvious reason for this difficulty is, of course, the fact that privacy is not explicitly protected by the Constitution, but has been inferred, discovered, or created-depending on one’s interpretative approach-by the justices. Privacy is also difficult, however, because the concept is not easily defined and its parameters are not readily discernable. Since recognizing a right to privacy in GRISWOLD v. CONNECTICUT, the Supreme Court’s approach to privacy has been, at best, confused and disjointed, and has plainly lacked a legal theory of privacy capable of general application. The common law in the United States is no less precise, treating privacy as a bundle of amorphous rights-physical (a property right in one’s home and possessions), decisional (control over personal choices), informational (control over information about oneself), and formational (construction of the self)-rather than a single clearly defined principle. An effort to make sense of privacy under the law, in general or as a constitutional right, is a worthy and challenging task.

Richard A. Glenn’s THE RIGHT TO PRIVACY: RIGHTS AND LIBERTIES UNDER THE LAW, part of ABC-CLIO’s America’s Freedoms series, purports to “simplif[y] complicated constitutional issues without obscuring the central and important problems presented by them,” thereby providing “a rich and comprehensive source of information about the right to privacy” (p.xx). Like other books in the ABC-CLIO series, the text is geared towards upper level high school and beginning college students, and, as a result, it is not particularly sophisticated in its treatment of privacy. This is both the book’s strength and its weakness.

The book is logically organized and quite good in its foundational chapters. Chapter 1 introduces privacy both as a concept and as legal protection in the American legal tradition. The author rightfully stresses the complexity of privacy as a concept, and identifies multiple functions it serves. After explaining the difference between what he terms common law “tort privacy” and “constitutional privacy,” (pp.5-6), the author stresses that the latter is the primary focus of the book, and alerts the reader that constitutional privacy “involves at least two separate kinds of interests-one in independence in making certain kinds of important decisions, the other in avoiding disclosure by government of personal matters” (p.7).

Chapter 2 discusses the theoretical, constitutional, and common law origins of privacy. For the most part, this chapter is thorough, especially in its discussion of the historical development of the American common law and constitutional law. The [*276] chief problem with this chapter (and Chapter 3) is the lack of discussion of the division between what becomes the right to privacy and personal autonomy discussed in the balance of the text and the physical privacy which ultimately becomes the province of the Fourth Amendment. The author already laid the groundwork for this distinction in the Introduction by identifying at least two distinct kinds of constitutional privacy interests, both of which are rooted in the Warren and Brandeis (1890) article, Brandeis’ OLMSTEAD dissent, and BOYD v. U.S. Yet, aside from one paragraph on pages 63-64, this distinction is simply glossed over. I address this shortcoming in more detail below.

In Chapter 3 the author painstakingly traces the development of privacy by the Supreme Court. Although some of the better Constitutional Law textbooks gloss over the pre-GRISWOLD case law, this text does not. SKINNER and the sterilization cases are discussed, as is the oft-overlooked yet important decision POE v. ULLMAN. The chapter goes on to analyze the reproduction cases from GRISWOLD to ROE and its progeny, the long line of related family autonomy cases, BOWERS v. HARDWICK and sexual autonomy, and a brief discussion of other personal autonomy issues, including possession of regulated or banned substances and materials.

Chapter 4 discusses what the author views as the likely privacy issues in the coming years. For the most part, these issues are not significantly different from what the Court has been grappling with in the decades since GRISWOLD-i.e., marriage and family, the beginning and ending of life, and personal relationships. Nearly half of the chapter is dedicated to the right to die, which in three cases during the 1990s the Court recognized, while allowing substantial government restrictions. As discussed in the text, state courts and legislatures have been active in this area, and several justices have indicated a willingness to let the issue percolate. It is probably thus appropriate to emphasize this issue, although perhaps not to such a great extent. The other “twenty-first century” issues-polygamy, same-sex marriage, homosexual adoption, prisoners’ conjugal rights and sexual stimulation devices-receive far less coverage. With the exception of same-sex marriage, most of these issues have been relegated to the “back burner” since the terrorist attacks of September 2001 and may not prove to be particularly important or controversial in the future, although one suspects that same-sex marriage would supplant the right to die had the author been able to fully incorporate LAWRENCE v. TEXAS into the text prior to publication. Curiously, little or no mention is made of other cutting-edge privacy issues, such as ownership of frozen embryos, control and protection of DNA, drug testing, and medical records. The chapter does discuss the emerging issue of informational privacy (pp.204-214), correctly noting that the Supreme Court has done little to develop this protection since WHALEN v. ROE in 1977. This discussion is quite important and timely, although it suffers from the text’s overly narrow conception of privacy (discussed below).

The book also includes two reference chapters, “Key People, Cases and Events” (Chapter 5) and “Documents” (Chapter 6). The former is basically a glossary based upon the first four chapters. Most of the entries are relevant and will be helpful to the intended audience. Glenn does, however, provide more technical detail than necessary and includes a number of extraneous or repetitious entries. It is not necessary, for example, to include entries for Nancy Cruzan and Michael Bowers, followed [*277] immediately by entries for the cases named after each. Inclusion of numerous technical terms regarding euthanasia-active involuntary, active voluntary, passive involuntary, and passive voluntary-also add unneeded detail.

The “Documents” chapter is quite useful, containing excerpts of many of the key privacy cases, plus the famous 1890 Warren and Brandeis law review article, “The Right To Privacy.” Additional pieces-Prosser’s 1960 article on privacy at common law and, possibly, Blaustein’s (1964) response arguing for a uniform concept of privacy-would have presented a more well-rounded discussion. But the Warren and Brandeis piece is clearly the best choice, if only one article could be included. The selected cases, for the most part, represent good choices. EISENSTADT v. BAIRD and WHALEN v. ROE, which are accorded places of importance in the text, would have been welcome additions to the list of excerpted cases. In addition, omitting excerpts from Justice Stevens’ dissents in BOWERS and CRUZAN (“Choices about death touch the core of liberty.... not much may be said with confidence about death unless it is said from faith, and that alone is reason enough to protect the freedom to conform choices about death to individual conscience,” 497 U.S. at 343) misses one of the Court’s most passionate advocates of constitutional privacy. Further, as discussed below, the book does not adequately explain the differences between 14th Amendment privacy and the privacy found in other provisions of the Bill of Rights, particularly the First and Fourth Amendments. To this end, some discussion of the divergence between GRISWOLD’s penumbral Fourteenth Amendment privacy and KATZ’s “reasonable expectation of privacy” would have been beneficial.

Special attention should be given to the author’s prologue discussing LAWRENCE v. TEXAS, which is extremely well done. As the author notes, the case was decided too late to be fully integrated into the text. Yet the discussion is easily integrated into the overall work. It makes clear the importance of the decision, not just in the Court’s jurisprudence, but as a significant step in the advancement of personal autonomy in our constitutional dialogues. In fact, it is one of the better discussions of LAWRENCE that has been produced to date. The author recommends that students return to the prologue after completing Chapters 1-4, however, the prologue can also serve as an introduction to the text.

While this text is likely to find a wide readership at the high school level, its treatment of privacy is perhaps too limited for college courses on the Constitution. First, in the interest of simplification, the author occasionally presents the issues in a manner that is confusing, if not inaccurate. For example, Table 3.1 (p.88) presents the standards of review under the Equal Protection and Due Process Clauses regarding privacy issues. The table omits the intermediate scrutiny tier altogether. While it may be argued that the Court has not explicitly invoked intermediate scrutiny for privacy issues, omitting gender makes the table incomplete, even with respect to privacy issues. Moreover, it is difficult to find explicit application of strict scrutiny in these cases, particularly since the 1980s. Indeed, the undue burden test announced in CASEY is arguably more consistent with intermediate scrutiny analysis than strict scrutiny. Similarly, the Court’s treatment of mental retardation and homosexuality in recent cases appears to many observers, as well as several justices, as a hybrid of rational basis and intermediate scrutiny. Another example appears in the discussion [*278] of family autonomy in Chapter 3 and again in the discussion of informational privacy near the end of Chapter 4. Although cases such as MICHAEL H. v. GERALD D. and CONNECTICUT DEPARTMENT OF PUBLIC SAFETY v. DOE (the Megan’s Law decision, curiously not mentioned in the book although Megan’s Laws are discussed) certainly raise privacy concerns, the Court resolved them under procedural (and, to a lesser extent, substantive) due process-not privacy. The primary issue in each case was whether the petitioner was entitled to a hearing.

Second, owing in large measure to the requirements of the America’s Freedoms series, the book focuses almost exclusively on privacy as recognized under the Due Process Clause of the Fourteenth Amendment-a subset of the “liberty” protected by that clause. As a result, the numerous other sources of privacy, under the Constitution, state constitutions, statutes and common law, are necessarily peripheral and are considered primarily as background to Fourteenth Amendment privacy. This cursory treatment of other sources of privacy, especially other constitutional protections, is highly problematic. College students and, I suspect high school students as well, find the distinction between decisional and formational privacy under the Due Process Clause and the physical privacy protected by the Fourth Amendment’s prohibition of unreasonable searches and seizures a difficult one to comprehend. This confusion is magnified when one introduces informational privacy, which is protected, to varying degrees, by the First, Fifth and Fourteenth Amendments. It can even be argued cogently that “privacy” is becoming a misnomer with respect to the rights protected by the Due Process Clause. Practices and behaviors “deeply rooted in this Nation’s history and tradition” need not be “private” as commonly understood or as previously asserted in GRISWOLD. Indeed, as the CASEY, GLUCKSBURG, and LAWRENCE opinions suggest, the Court has shown increasing preference for the broader terms, “liberty” and “autonomy,” rather than privacy to describe protected rights. The liberty protected in LAWRENCE is more than “the right to be let alone;” it is the right to be an equal member of the community regardless of one’s private conduct.

For students to gain a full understanding and appreciation of constitutional privacy, one must (1) train them to associate “privacy” with the broader notion of “liberty” when studying rights protected under the Due Process Clause; and (2) clearly document the divergence of physical and decisional/formational privacy (i.e., autonomy) in the precedents. The easiest way to accomplish this objective is to juxtapose GRISWOLD with KATZ and assess the development of the “reasonable expectation of privacy” in the context of government surveillance. Students should complete a textbook on constitutional privacy with an understanding the doctrine and its roots, but also with an appreciation of the complexity of privacy and its many interconnected Constitutional threads. While this book contains a wealth of valuable information on the development and current state of constitutional privacy, it does not provide these critical components, and an instructor using the book will need to supplement the text in order to complete the picture.

REFERENCES:

Bloustein, Edward J. 1964. “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser.” 39 NEW YORK UNIVERSITY LAW REVIEW 962-1007

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Gerber, Scott D. 2000. “Privacy and Constitutional Theory,” in Ellen Frankel Paul, Fred D. Miller, Jr. and Jeffrey Paul (eds.). THE RIGHT TO PRIVACY. Cambridge: Cambridge University Press.

Prosser, William L. 1960. “Privacy.” 48 CALIFORNIA LAW REVIEW 383-423.

Smith, Robert Ellis. 2000. BEN FRANKLIN’S WEB SITE: PRIVACY AND CURIOSITY FROM PLYMOUTH ROCK TO THE INTERNET. Providence: Privacy Journal.

Warren, Samuel D., and Louis D. Brandeis. 1890. “The Right To Privacy.” 4 HARVARD LAW REVIEW 193-220.

CASE REFERENCES:

CONNECTICUT DEPARTMENT OF PUBLIC SAFETY v. DOE, 538 U.S. 1 (2003).

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).

KATZ v. UNITED STATES, 389 U.S. 347 (1967).

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

MICHAEL H. v. GERALD D., 491 U.S. 110 (1989).

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY, 505 U.S. 833 (1992).

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Copyright 2004 by the author, Daniel E. Smith