Griswold v. Connecticut: How Privacy Became a Right

In the landmark case of Griswold v. Connecticut, which established the right of married couples to use contraception, Justice Harlan presented several arguments. One was a "counting argument," noting that Connecticut's law prohibiting contraception was an anomaly, inconsistent with American custom and tradition. This reflected the idea of America's "lived constitution," where ordinary people live their lives free from government intrusion into their marital bedrooms.

The Implicit Constitution and the Shift from Property to Privacy

Justice Harlan also argued for an "implicit constitution," drawing on the Fourth Amendment's protection of "persons, houses, papers, and effects" from unreasonable searches and seizures. He emphasized the specific mention of "houses" and "persons," suggesting a foundational desire to protect the privacy of the home and the body. Similarly, the Third Amendment, which prohibits quartering troops in homes without authorization, further highlights the special protection afforded to homes. Harlan argued that this protection extends beyond mere property to the "home life within the homestead," marking a significant shift from narrow property conceptions toward modern privacy law.

This move from property as an organizing idea to privacy is a major development in the history of unenumerated rights in America. While "property" appears in the Constitution in several places, "privacy" does not. Historically, substantive due process was sometimes used to protect property, as seen in Dred Scott, where the court used it to prevent laws restricting slaveholders' ability to take slaves into territories. During the Lochner era (late 19th, early 20th century), the Supreme Court frequently struck down legislation protecting employees and consumers, again using substantive due process to protect property interests.

However, the Warren Court later used the same phrase, "substantive due process," to focus more on liberty. The speaker suggests jettisoning the concept of substantive due process altogether, as its broad application to "life, liberty, and property" can lead back to problematic precedents like Lochner and Dred Scott. Instead, the speaker prefers discussing "privileges and immunities of citizens," which are more connected to the idea of privacy and substantive rights, rather than just procedural aspects.

Egalitarianism and the Protection of Privacy

The shift from property to privacy as an organizing metaphor introduces a certain egalitarianism. Property is inherently unequally distributed, and this inequality can undermine a republican system by allowing the wealthy to influence politics. Privacy, however, is more equally distributed; everyone has "one person" and can only be in "one bed at one time." This emerging protection of privacy reflects an egalitarian instinct, marrying the best aspects of property and equality.

This egalitarian principle is evident in cases like Gideon v. Wainwright, where the Supreme Court established the right to appointed counsel for indigent criminal defendants. While not explicitly stated in the Constitution and not universally recognized by the founders for all felony cases, this right reflects the evolving "lived experiences of Americans." The framers' concept of counsel was more property-based, available only to those who could afford it. The Gideon right, though unenumerated, is a more egalitarian version, ensuring counsel regardless of one's ability to pay.

The protection of houses, even among all forms of property, also has egalitarian dimensions. In American myth and reality, houses are widely distributed among different socioeconomic classes. Protecting homes, therefore, protects a broad cross-section of society.

Home Life and Constitutional Protections

The Supreme Court has consistently protected homes and home life through various constitutional doctrines:

• Fourth Amendment: Special rules apply when the government invades or penetrates the home, such as requiring warrants for home searches.
• First Amendment: Individuals have a special right to possess certain sexually explicit materials, like erotica, in the privacy of their homes, as established in Stanley v. Georgia.
• Unenumerated Rights (or Substantive Due Process/Privileges and Immunities): There's a recognized right to homeschool children, often connected to the free exercise of religion, emphasizing the right to raise children within the home.
• Second Amendment: More recently, the Supreme Court has affirmed a right to possess a gun in the home for self-protection, reflecting a deeply ingrained part of American tradition.

These protections demonstrate that constitutional law is not confined to one political spectrum; liberals might favor privacy for sexual expression, while conservatives might favor gun ownership, but both are integral to the "lived constitution."

The Kelo v. City of New London Case and Just Compensation

The case of Kelo v. City of New London highlights the special status of homes. In this case, the government sought to take a woman's home, offering "just compensation," to give it to a private developer for economic development. The Supreme Court ruled that taking private property for economic development, even if given to a private developer, could constitute "public use" under the Fifth Amendment.

The speaker argues that the focus on "public use" in Kelo overlooked the fundamental difference between an investment property and a person's home. For an investment property, market value might be sufficient compensation. However, for a homeowner, a home often carries deep emotional attachment, representing where they were born, raised children, and lived their lives. Mere market value might not adequately compensate for this profound loss. This suggests that doctrines regarding "just compensation" might be insufficiently robust when it comes to people's homes, regardless of whether the property is taken for a school, park, or private developer.

The Eighth Amendment and Evolving Standards of Decency

The Eighth Amendment's prohibition against "cruel and unusual punishments" invites judges to consider evolving societal practices. The word "unusual" implies that what was once common might become uncommon over time.

For example, the practice of executing juvenile offenders was once common. However, as many states began to prohibit or rarely apply the death penalty to juveniles, the Supreme Court recently ruled that this practice has become "unusual" and therefore unconstitutional. A similar evolution occurred with the execution of mentally impaired criminal defendants. What was once common practice became unusual as states moved away from it, leading the Supreme Court to declare it unconstitutional.

This demonstrates a "dialogue" where the court pays attention to social practices, allowing for an expansion of rights beyond the literal text of the Constitution. The Ninth Amendment explicitly states that the enumeration of certain rights in the Constitution does not mean that other rights retained by the people are denied or disparaged. The Privileges or Immunities Clause of the Fourteenth Amendment also protects unenumerated rights against state infringement.

The speaker concludes that while courts sometimes use terms like "substantive due process" that critics find vague, the Constitution itself, through the Ninth, Fourteenth, and Eighth Amendments, provides a basis for the vigorous protection of unenumerated rights. The "written constitution itself contemplates supplementation" and careful protection of these rights, which are deeply embedded in America's "lived constitution."