The nomination of Brett Cavanaugh to the Supreme Court has raised a perennial issue to the forefront of political debate. Under question is the issue of the right to privacy. Cavanaugh has previously expressed support for the federal government’s metadata collection program, writing in an opinion, “in my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment.” His reasoning is not unusual: Kavanaugh considers seizure of data from third-party metadata providers to not constitute a search as the person generating the information does not technically own the network on which it is stored, a legal precedent established in the 1967 by the Court’s Katz v. United States ruling. This position is, however a departure from that of most textualists — a label which has been applied to Kavanaugh — who generally believe such practices run afoul of the “no Warrants shall issue, but upon probable cause” language of the Fourth Amendment. By contrast, President Trump’s first Supreme Court pick, Neil Gorsuch, who is also considered a strict textualist, recently questioned the Katz test and the third-party doctrine in a ruling, writing:
“The [Fourth] Amendment’s protections do not depend on the breach of some abstract “expectation of privacy” whose contours are left to the judicial imagination. Much more concretely, it protects your “person,” and your “houses, papers, and effects.” Nor does your right to bring a Fourth Amendment claim depend on whether a judge happens to agree that your subjective expectation to privacy is a “reasonable” one. Under its plain terms, the Amendment grants you the right to invoke its guarantees whenever one of your protected things (your person, your house, your papers, or your effects) is unreasonably searched or seized. Period.”
The exact standing of a “right to privacy” is a matter of contention because the phrase is never explicitly mentioned in the Constitution, which, to many, means it doesn’t exist. But, as Gorsuch’s opinion suggests, the right to privacy is inherent, even if current jurisprudence fails to recognize this.
While it is true that there is no explicitly guaranteed right to privacy, a case for the existence of one can be built from several of the Bill of Right’s amendments.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The term “unreasonable” has increasingly become the focus of the federal courts when Fourth Amendment cases find their way before them. Clear as the language may seem, it is open to interpretation: unreasonable according to whom? Reason based on what facts? But the first clause of the Amendment is more a philosophical statement than an actionable guideline for agents of the government. It is the second clause — the absolute assertion that personal goods may be searched only upon issue of a warrant that lists specific items to be searched and reasons for searching them, which must pass the muster of a judge — that serves as a better guidepost for determining the Constitutionality of law enforcement actions.
But this is somewhat ancillary to the question of a right to privacy. Logically, the right to privacy must exist if government needs a reason to search people’s personal affects. Government does not own your house, your person or your effects, that is why it needs a demonstrable and compelling reason to search them. And if government does not own these entities, then they must be owned privately, by the individual.
The language of the Fourth Amendment is rather remarkable in that it casts government, and specifically its law enforcement agents, as simply another social actor, like a stranger on the street. Your individual rights to hold and control your property are as inviolable when dealing with the aggression of a stranger as when confronted with the power of the federal government. They can only be overcome by completion of a very specific process, in which the burden of proof falls squarely on the government to prove it has a compelling interest in violating an individual’s privacy; it is not the burden of the individual to prove there is no justification for invading his or her privacy.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Even supposing privacy is not implicit in the Fourth Amendment, the Ninth Amendment certainly indicates that it may still exist. The Constitution is, after all, a charter of “negative” rather than “positive” liberties; it lists things the government may not do rather than things the people may do. This latter list is theoretically inexhaustible; James Madison was against the Bill of Rights for fear that it might suggest only a limited number of rights retained by the people. And while there certainly has been no legal attempt to limit individual rights to those listed in the Bill of Rights, the very assertion that privacy is not an enumerated right because no specific mention is made of it in the Constitution suggests a prevalent mindset that considers rights as limited by the text of the Constitution.
The American natural rights philosophy is hazy at best; the philosophical grounding of individual rights is never explicated by the Founders. It finds its greatest champion in Thomas Jefferson and the Declaration of Independence. In the first draft — a much more philosophically version than the final draft, edited for the sake of political expediency, more familiar to modern Americans — Jefferson asserts “that all men are created equal & independant, that from that equal creation they derive rights inherent & inalienable.”
This phrasing firmly roots freedom in the independence of the individual; it is because man relies on himself to think and to feel and to process all that he experiences that he holds freedoms that cannot be violated. The American natural rights philosophy therefore can be summed up in reference to this. Individual rights pertain to the affairs over which individual have exclusive control: if an action can be carried out without reliance upon the services of another, it is inviolable.
Establishing this is important as it confirms the existence of the right to privacy. So long as the individual nature is the guidepost for determining what rights are to be retained by the people, privacy must exist as an inherent right possessed by the people. As already demonstrated, the logic of the Fourth Amendment demonstrates that property, since it cannot be inspected by government but by warrant, is private. The Ninth Amendment confirms this by reminding us that individual retain all their rights, even those not enumerated in the Constitution.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
As with the Ninth Amendment, the Tenth Amendment merely confirms the right to privacy not only exists but is exercisable. It places a limit upon the government even as it confirms that the same text which acts as a ligature upon federal agencies is liberating to American citizens and the states, which are also constitutive members of the polity. The Tenth Amendment is crucial to the case for privacy because it confirms that the federal government is not the sole source of power in the nation. Yes, it is the supreme source of power within the truncated area given over to its jurisdiction by the Constitution proper, but the Tenth Amendment confirms that, outside that area, states and individuals have supremacy and their rights cannot be infringed by any legal justification.
Again, this confirms not only that a right to privacy exists, but that is held by individuals. In this case, states, as collective agencies, cannot have privacy rights. Privacy is a function of an ability to hold something separately from all others. It requires ownership. States, as public entities, cannot “own” anything. Everything they possess is appropriated from another entity. The Tenth Amendment talks of government functions being “delegated” by the Constitution. This means those powers do not originate with the federal agencies to which they are entrusted for enforcement. It affirms that government power is not an inevitable end, but a necessary aberration of natural power if society is to evolve. Individuals hold power; they delegate at it external agencies whose reach and influence is broader in order to achieve higher-level ends, carried out on a much broader scope. But the delegation of power does not alter its original state. Rightfully, it is individuals who hold rights, including the right to privacy. No government law can change this.