The conservative-libertarian schism over unenumerated rights
Damon Root described the conservative legal movement as a product of the liberal court victories of the 1950s and 1960s, modeled on the civil rights movement’s success through legal means, and said it had grown over the past 40 years to control the Supreme Court and influence the Republican Party. Bob Zadek identified the Federalist Society as perhaps the point organization in all of this, and Root agreed it was a key organization. Within that broader movement, Root said, a libertarian insurgency grew up that disagreed with conservatives on a number of issues, but the real fault line was over the role of the courts—whether courts should be deferential to the elected branches. For conservatives of the past 30 years, one of the key issues had been privacy—sexual privacy, birth control, abortion. Root said the right to privacy is an unenumerated right, not listed in the Constitution, and that in 1965 the Supreme Court said you have a right to privacy and struck down a Connecticut law which banned the sale of birth control to married couples. A few years later, Root said, the court said that within that right to privacy there is also a right to an abortion. Conservatives, in Root’s account, do not like those opinions, think they were untethered from the text of the Constitution, and therefore say you do not have a right to privacy and the court should not invent one. Bob Zadek said Justice Scalia was pretty much true to that line of thought, and Root agreed he had held to it very consistently. The libertarian legal movement, Root said, disagrees with the conservatives: they say of course there is a right to privacy in the Constitution, of course the state should not be able to prevent married couples from obtaining birth control devices to use in the privacy of their own home, since they are not harming anyone—it is government overreach, a classic example. Root also said that people like Scalia, Robert Bork and John Roberts apply a deferential philosophy in economic regulation cases, treating economic rights and privacy and other unenumerated rights in a second-class way, and that Scalia debated libertarian law professors over whether the Constitution requires courts to actively protect economic liberty, with Scalia saying it does not and it would be a terrible idea. Root said Bork felt the same way and he thought John Roberts felt that way as well, and that this came out in the healthcare case. Root called it fair to call it a war because libertarians, a very small section within the broader conservative legal movement, had been waging an aggressive campaign, a war of ideas, trying to persuade conservatives to come around. He cited the 2012 healthcare case, where one question was whether Congress had authority under the Commerce Clause to impose the individual mandate, and named Randy Barnett, a law professor at Georgetown, as one of the lawyers who was the architect of that legal challenge, arguing for a very narrow reading of the Commerce Clause. Root said Barnett argued a medical marijuana case at the Supreme Court in 2005 and lost, because the court said the Commerce Clause was broad enough, after California had legalized medical marijuana. Bob Zadek called that a terrible decision and named the Raich case. Root said Scalia and Kennedy voted against Barnett, in favor of a broad Commerce Clause power, and that just seven years later Barnett’s arguments were the default conservative position, with the entire conservative movement lined up against Obamacare. Root said Michael Greve, who wrote the review for the Wall Street Journal, conceded that libertarians had gained quite a bit of ground and that the libertarian view was much more dominant on the right than it was 30 years ago, the result of decades of intellectual war—law review articles, speeches, debates, bringing court cases. Bob Zadek said the libertarian movement is intellectually alive, with brilliant writing and aggressive active scholarship, and that the conversation in America today invariably has libertarians at the table, often at the head of the table leading the debate. Root agreed, saying the traditional conservative view of deference had fallen out of favor largely on the right, and that more and more conservatives say the court should be really aggressive and should be striking down these laws. Bob Zadek listed gay marriage, gun control, legalization of marijuana and other controlled substances, and Rand Paul’s reducing the nature of punishment for low-level drug offenses as libertarian issues now being discussed in America, and said the warriors in the battle against Obamacare are for the most part libertarian or libertarian-leaning attorneys. Root named the King v. Burwell case, saying folks at the Cato Institute, law professor Jonathan Adler and Michael Cannon at Cato had been huge in creating that legal challenge and identifying the problem with the law. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Privacy, body cameras and the Fourth Amendment
Bob Zadek told Matthew Feeney that the right to privacy, while most Americans would say of course they have a right to privacy and of course it is constitutionally protected, is not in the Constitution as such, and that by adopting the belief that they have a right to privacy, Americans are adopting in many ways an originalist or libertarian view of the Constitution. He said the Constitution states that the specific rights listed in the Bill of Rights are only representative and are not there to denigrate other unenumerated rights, and that the Ninth Amendment reminds us that just because freedom of speech is mentioned but right to privacy is not, that is not to denigrate the right to privacy. Feeney said he thought Zadek was quite right to say there is no explicit right to privacy in the Constitution, but that what we call the right to privacy can be protected in the shelter of some of the amendments, and that the most often cited in privacy cases is the Fourth Amendment, which protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Feeney called it a property-rights-protecting amendment protecting your possessions, and said it has been used in many privacy cases over the years. He said Justice Brandeis in his Olmstead dissent wrote that the makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness and recognized the significance of man’s spiritual nature, and his feelings and his intellect—talking about things that are not property but that we nonetheless feel ought to be private. Feeney said body cameras raise issues about the relationship we have to the state, particularly what the state sees and what it is going to publish and reveal, and that body cameras by themselves are basically morally neutral, made good or bad by rules, laws and legislation. He said any legislation that ignores the privacy concern or does not give it the consideration it deserves will run into problems, and that we can provide increased transparency and accountability while using body cameras and protecting privacy, but it depends strongly on taking into account how people tend to live their lives—whether people expect that everyone who walks into their home wearing a badge is going to upload footage onto YouTube. He said that if we make the distinction between private residences and the public, we can be well on our way to protecting privacy while improving law enforcement. Bob Zadek said he does not object to the government having information, and that the fact that personal information about him is buried somewhere in some digitized form in some governmental database does not trouble him; what he is attentive to is the use that that data is put to. He said the government having the data does not violate his right to privacy, just having the data exist; it is rather the use of it that he is concerned about, and appropriate controls. He said Feeney was saying somewhat the same thing—that he is not offended by the fact that very intimate information about one’s life might be recorded and digitized on a police body camera, which means it is now under the control of the government, so long as there are safeguards about its use. Matthew Feeney on Best Practices for Police Body Cameras (2016)
From Griswold to Glucksberg to Dobbs
Evan Bernick said the discovery of unenumerated rights is a long story with many twists and turns, and that at the time Griswold and Roe were decided, the methodology for identifying unenumerated rights basically involved what a shifting coalition of justices were prepared to deem sufficiently important to liberty broadly construed to recognize and elevate to constitutional status, and then in the next case determine whether a claimed liberty was close enough to one they had already recognized—a combination of moral intuitions and reasoning by analogy. He said that in part because of the dissatisfaction of justices like Chief Justice Rehnquist and the late Justice Scalia with this intuition-heavy, case-by-case way of identifying rights, the Court adopted a new framework called the Glucksberg framework, after Glucksberg v. Washington, the case in which a majority of the Court decided to identify unenumerated rights that way. Bernick said Glucksberg itself involved a claimed right to assisted suicide, and that the Supreme Court rejected it as a constitutional claim because it was not deeply rooted in the nation’s history and tradition, looking over the course of really centuries to determine whether the right existed at common law or in the law of the states today, and concluding that it had not, and therefore was not a constitutional right at all. Bernick said the Glucksberg framework has since become the dominant, although not the only, way the Court identifies unenumerated rights, and that in Dobbs we have Glucksberg in perhaps its most demanding form, with the conclusion that the right to terminate a pregnancy is not protected by the 14th Amendment because it does not satisfy Glucksberg. Bob Zadek said Roe v. Wade did not spring from the earth full-grown the way Athena sprung from Zeus’s brain, and that Griswold is the case of which Roe v. Wade is progeny, predicated upon the unenumerated right to privacy, so that without an unenumerated right to privacy the underpinnings of Roe v. Wade disappear. Bernick said the right to privacy does come from Griswold, the case that held that married couples have the right to use contraceptives, and that the Court said even though the right to privacy is not stated in the constitutional text, it emerges from penumbras and emanations of the Bill of Rights. He said Griswold says there is a right to privacy and includes certain rights of intimate association, and this becomes the foundation of a developing doctrine that eventually becomes associated less with privacy and more with the concept of liberty. By the time we get to Casey, Bernick said, the Court has said there is a right to privacy but that the best hook for the right to terminate a pregnancy is the right to liberty guaranteed by due process. He said the fruits of this liberty jurisprudence have since come to include the right of same-sex couples to be sexually intimate—Lawrence v. Texas, striking down a ban on same-sex sodomy—and the right of same-sex couples to marry, Obergefell v. Hodges, holding that same-sex marriage is constitutionally guaranteed. Bernick said the inquiry in Dobbs is actually less about privacy and more about liberty: is this right a liberty guaranteed by the 14th Amendment, and because the argument goes that we cannot find this right deeply rooted in our nation’s history and tradition, it is therefore not liberty and not protected by the 14th Amendment. Evan Bernick on the Dobbs Draft (2022)
Privacy, public space and license plate readers
Bob Zadek asked Jonathan Hofer whether a private party that collects data by putting cameras on poles is free to sell that data, or whether privacy regulations govern the activity. Hofer said that by and large, since the late ’60s, case law in the United States regarding surveillance topics has largely focused on the issue of whether you have an expectation of privacy, and that this is in the Katz decision, which he believed was in 1968. Hofer said that when looking at whether you have an expectation of privacy, one asks whether it is in the public square, and that roads are public, so you do not really have an expectation of privacy over your license plate. He said the Supreme Court has explicitly addressed this topic and explicitly said that no, you do not have an expectation of privacy for your license plate; it is not illegal to photograph a person’s license plate, and you could set up your camera on the roadway. But, Hofer said, it does start to broach into another Fourth Amendment legal territory once you start aggregating the data. Bob Zadek said the right to privacy describes the relationship between individual and government, not simply between private parties, and asked whether two private parties who put up cameras and collect data to build an inventory to sell would be doing anything wrong or illegal. Hofer said you should actually be totally in the clear, and that there are no state or federal laws that would prevent you from doing that. Bob Zadek said the collection and organization of data by a private party simply as a business activity is not the issue per se; it is only when government invites itself to the party and wants to take advantage of this data that the right to privacy is implicated. He described data being collected and aggregated across counties, then woven together so that through digital magic you can isolate a license plate from all these pots of data and know everything about a human being you would ever want to know. Hofer responded, absolutely. A PSA on ALPRs (2022)
Across episodes: no development
The excerpts show the same question—whether an unenumerated right to privacy exists and what it protects—argued in four episodes, but they do not show a development from one treatment to the next: Damon Root frames it as a conservative-libertarian schism, Matthew Feeney and Bob Zadek discuss it in the context of body cameras, Evan Bernick traces its doctrinal path from Griswold through Glucksberg to Dobbs, and Jonathan Hofer addresses it in the context of license plate readers and public space.
What the sources do not cover
The excerpts do not state the state in which any city mentioned is located, the name of any bill, or the founding date of any organization. They do not state the title or field of every person named, nor the full holding of every case mentioned beyond what the speakers say. Where an excerpt ends mid-sentence or with a speaker label and no following text, the sources stop there.