The Right to Privacy Other Books in America’s Freedoms Donald Grier Stephenson, Jr., Series Editor Cruel and Unusual Punishment, Joseph A. Melusky and Keith A. Pesto Equal Protection of the Laws, Francis Graham Lee Freedom of Association, Robert J. Bresler Freedom of Speech, Ken I. Kersch Property Rights, Polly J. Price Religious Freedom, Melvin I. Urofsky The Right to Bear Arms, Robert J. Spitzer The Right to Counsel and Privilege against Self-Incrimination, John B. Taylor The Right to Privacy Rights and Liberties under the Law Richard A. Glenn Santa Barbara, California • Denver, Colorado • Oxford, England Copyright 2003 by Richard A. Glenn All rights reserved. No part of this publication may be reproduced, stored in a re- trieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, except for the inclusion of brief quotations in a review, without prior permission in writing from the publishers. Library of Congress Cataloging-in-Publication Data Glenn, Richard A. The right to privacy : rights and liberties under the law / Richard A. Glenn. p. cm. —(America's freedoms) Includes bibliographical references and index. ISBN 1-57607-716-0 (hardcover : alk. paper); ISBN 1-57607-717-9 (e-book) 1. Privacy, Right of—United States—Juvenile literature. I. Title. II. Series. KF1262.Z9G59 2003 342.73'0858--dc21 2003010050 08 07 06 05 04 03 10987654321 This book is also available on the World Wide Web as an e-book. Visit abc-clio.com for details. ABC-CLIO, Inc. 130 Cremona Drive, P.O. Box 1911 Santa Barbara, California 93116–1911 This book is printed on acid-free paper. Manufactured in the United States of America To Ryan, my son Contents Series Foreword ix Preface and Acknowledgments xix Prologue xxv 1 Introduction 1 Definitions of Privacy, 3 The Significance of Privacy, 7 Privacy in the U.S. Political System, 10 Current Breadth of the Right to Privacy, 12 References and Further Reading, 14 2 Origins 15 The Philosophical Foundations, 15 The Constitutional Foundations, 20 The Common Law Foundations, 45 Conclusion, 56 References and Further Reading, 58 3Twentieth-Century Issues 61 Reproductive Autonomy, 66 Family Autonomy, 117 Sexual Autonomy, 132 Personal Autonomy, 141 Conclusion, 142 References and Further Reading, 144 vii viii Contents 4 The Twenty-first Century 147 The Right to Die, 148 Family Autonomy, 182 Sexual Autonomy, 199 Informational Privacy, 204 Conclusion, 214 References and Further Reading, 218 5 Key People, Cases, and Events 223 6 Documents 291 “The Right to Privacy,” by Samuel D. Warren and Louis D. Brandeis (1890), 292 Pavesich v. New England Life Insurance Company (1905), 309 Meyer v. Nebraska (1923), 310 Olmstead v. United States (1928) (Brandeis, J., dissenting), 313 Skinner v. Oklahoma (1942), 315 Griswold v. Connecticut (1965), 316 Loving v. Virginia (1967), 322 Roe v. Wade (1973), 323 Bowers v. Hardwick (1986), 330 Cruzan v. Missouri Department of Health (1990), 335 Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), 340 Commonwealth of Kentucky v. Wasson (1992), 345 Washington v. Glucksberg (1997), 347 Chronology 353 Table of Cases 359 Annotated Bibliography 365 Index 381 About the Author 399 Series Foreword America’s Freedoms promises a series of books that address the origin, development, meaning, and future of the nation’s fundamental liberties, as well as the individuals, circumstances, and events that have shaped them. These freedoms are chiefly enshrined explicitly or implicitly in the Bill of Rights and other amendments to the Constitution of the United States and have much to do with the quality of life Americans enjoy. Without them, America would be a far different place in which to live. Oddly enough, however, the Constitution was drafted and signed in Philadelphia in 1787 without a bill of rights. That was an afterthought, emerging only after a debate among the foremost political minds of the day. At the time, Thomas Jefferson was in France on a diplomatic mission. Upon receiving a copy of the proposed Constitution from his friend James Madison, who had helped write the document, Jefferson let him know as fast as the slow sailing-ship mails of the day allowed that the new plan of government suffered one major defect—it lacked a bill of rights. This, Jefferson argued, “is what the people are entitled to against every government on earth.” Madison should not have been surprised at Jefferson’s reaction. The Declaration of Independence of 1776 had largely been Jefferson’s handiwork, including its core statement of principle: ix x Series Foreword We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happi- ness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. Jefferson rejected the conclusion of many of the framers that the Constitution’s design—a system of both separation of powers among the legislative, executive, and judicial branches, and a federal division of powers between national and state governments—would safeguard liberty. Even when combined with elections, he believed strongly that such structural checks would fall short. Jefferson and other critics of the proposed Constitution ultimately had their way. In one of the first items of business in the First Congress in 1789, Madison, as a member of the House of Representatives from Virginia, introduced amendments to protect liberty. Ten were ratified by 1791 and have become known as the Bill of Rights. America’s Bill of Rights reflects the founding generation’s understanding of the necessary link between personal freedom and representative government, as well as their experience with threats to liberty. The First Amendment protects expression—in speech, press, assembly, petition, and religion—and guards against a union of church and state. The Second Amendment secures liberty against national tyranny by affirming the self-defense of the states. Members of state-authorized local militia—citizens primarily, soldiers occasionally—retained a right to bear arms. The ban in the Third Amendment on forcibly quartering troops in houses reflects the emphasis the framers placed on the integrity and sanctity of the home. Other provisions in the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments safeguard freedom by setting forth standards that government must follow in administering the law, especially Series Foreword xi regarding persons accused of crimes. The framers knew firsthand the dangers that government-as-prosecutor could pose to liberty. Even today, authoritarian regimes in other lands routinely use the tools of law enforcement—arrests, searches, detentions, as well as trials—to squelch peaceful political opposition. Limits in the Bill of Rights on crime-fighting powers thus help maintain democracy by demanding a high level of legal scrutiny of the government’s practices. In addition, one clause in the Fifth Amendment forbids the taking of private property for public use without paying the owner just compensation and thereby limits the power of eminent domain, the authority to seize a person’s property. Along with taxation and conscription, eminent domain is one of the most awesome powers any government can possess. The Ninth Amendment makes sure that the listing of some rights does not imply that others necessarily have been abandoned. If the Ninth Amendment offered reassurances to the people, the Tenth Amendment was designed to reassure the states that they or the people retained those powers not delegated to the national government. Today, the Tenth Amendment is a reminder of the integral role states play in the federal plan of union that the Constitution ordained. Despite this legacy of freedom, however, we Americans today sometimes wonder about the origin, development, meaning, and future of our liberties. This concern is entirely understandable, because liberty is central to the idea of what it means to be American. In this way, the United States stands apart from virtually every other nation on earth. Other countries typically define their national identities through a common ethnicity, origin, ancestral bond, religion, or history. But none of these accounts for the American identity. In terms of ethnicity, ancestry, and religion, the United States is the most diverse place on earth. From the beginning, America has been a land of immigrants. Neither is there a single historical experience to which all current xii Series Foreword citizens can directly relate: someone who arrived a decade ago from, say, Southeast Asia and was naturalized as a citizen only last year is just as much an American as someone whose forebears served in General George Washington’s army at Valley Forge during the American War of Independence (1776–1783). In religious as in political affairs, the United States has been a beacon to those suffering oppression abroad: “the last, best hope of earth,” Abraham Lincoln said. So, the American identity is ideological. It consists of faith in the value and importance of liberty for each individual. Nonetheless, a longstanding consensus among Americans on the principle that individual liberty is essential, highly prized, and widely shared hardly assures agreement about liberty in practice. This is because the concept of liberty, as it has developed in the United States, has several dimensions. First, there is an unavoidable tension between liberty and restraint. Liberty means freedom: we say that a person has a “right” to do this or that. But that right is meaningless unless there is a corresponding duty on the part of others (such as police officers and elected officials) not to interfere. Thus, protection of the liberty of one person necessarily involves restraints imposed on someone else. This is why we speak of a civil right or a civil liberty: it is a claim on the behavior of another that is enforceable through the legal process.