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A Developing Pattern Of Unenumerated Individual Rights In The United States Constitution
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A Developing Pattern Of Unenumerated Individual Rights In The United States Constitution
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Content
A DEVELOPING PATTERN OF UNENUMERATED
INDIVIDUAL RIGHTS IN THE
UNITED STATES CONSTITUTION
by
Fred Abraham Swide
A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(Political Science)
June 1971
72-6114
i
i
SWIDE, Fred Abraham, 1917-
A DEVELOPING PATTERN OF UNENUMERATED
INDIVIDUAL RIGHTS IN THE UNITED STATES
CONSTITUTION.
University of Southern California, Ph.D., 1971
Political Science, general
University Microfilms, A X E R O X Company, Ann Arbor, Michigan
C opyright © by
FRED ABRAHAM SWIDE
1971
THIS DISSERTATION HAS BEEN MICROFILMED EXACTLY AS RECEIVED
[
UNIVERSITY O F SO U TH ER N CALIFORNIA
T H E G RA D U A TE S C H O O L
U N IV E R S IT Y PA RK
LO S A N G E L E S , C A L IF O R N IA 9 0 0 0 7
This dissertation, written by
.........Fjr.eAAbr.aJx9m.Smde..........
under the direction of his..... Dissertation Com
mittee, and approved by all its members, has
been presented to and accepted by The Gradu
ate School, in partial fulfillment of require
ments of the degree of
D O C T O R O F P H I L O S O P H Y
("777
Dean
D ate Juuft,..1.9.7.1.
fSERTATION COMMITTEE
Chair ma.
PLEASE NOTE:
Some Pages have indistinct
print. Filmed as received.
U NI VERS I TY MICROFILMS
TABLE OF CONTENTS
^INTRODUCTION...........................
i
'Chapter
I
| I. THE RIGHT TO PUBLIC WELFARE . . .
Introduction
History
Procedural Due Process
Laws of Residency
Family Responsibility
Repayment by the Recipient
Conclusion
II. THE RIGHT TO TRAVEL ............
III. THE RIGHT TO PRIVACY ..........
J
Introduction
The Functions of Privacy in a
Democratic Society
The Public Law of the Right to
Privacy
Modern Technology and the Right
to Privacy
IV. THE RIGHT TO CITIZENSHIP . . . .
V. THE RIGHT TO DIE ..............
Introduction
Discussion
The "Right to Live"
Chapter
icONCLUS ION
BIBLIOGRAPHY
I
i
I
I
INTRODUCTION
i During this century, the United States Supreme Court
has been called upon to hear an increasing number of cases
!
which involve the status of individuals. This represents a
departure from the court's historic mission of defining
property rights and establishing the constitutional struc
ture of the American government. It is the premise of this
study that the doctrine emerging from this change in empha
sis is one of unenumerated rights, as differentiated from
the traditional doctrine of enumerated rights, which has
proven inadequate to meet the demands of a growing and in
c r e a s i n g l y better informed population. This doctrine of
unenumerated rights is of course a valid constitutional
doctrine, timely and necessary, which can accommodate a
great variety of individual rights demands,
i The development of modern individual rights is a
relatively recent one, as it is based on a recognition of
man's spiritual nature, his feelings, sensations, and in-
1
2
tangible interests* regardless of their uniqueness or vari
ety. New demands are constantly being made due to the his-
i
ftorical changes taking place* and this is the process of
development.
The reality of present individual rights is remote j
: j
as well as recent. One's reading of the early Greeks* j
| 1
Romans* Stoics* the Middle Ages* and the Renaissance may j
I
reflect a sketchy patchwork of ideas which indicate some
thing of the idea* but* in fact* the notions expressed meant;
i
very little in actual practice. The basis for our libertiesj
is limited government* and the lasting and effective expres-l
sion of limited government for us is the English experience.:
The first effective beginnings can be ascribed to the hard i
barons at Runnymede in 1215. Here a real limit was placed '
on power by law. This idea of a limited king has never beenj
i
forgotten since then in English history, nor in American. j
The English civil war of 1642 and the subsequent execution I
!
of Charles I in 1649 was based on the treason of the king. j
The "Glorious Revolution" of 1688* with the removal of j
t
I
James II and the importation of William of Orange* who gave i
his assent to the bill of rights of 1689* was the last death;
I
i
struggle in English history to secure limited government. j
l
lAmerica inherited this heritage and spirit and thus revolted
when abused.
i The Americans had a heritage of a "British Consti-
i
I
jtution" with its concomitant limited government and unwrit
ten form. The concept of enumerated rights is the essence
of English constitutional government. However, of major
i
jimportance is the content of these rights, and although the
doctrine of natural rights was the basic core of revolu- j
tionary America, the content and specifics of unenumerat'ed I
i
rights are determined by the "felt necessities" of the times;
and are in a constant flux.
Even with an enumerated bill of rights we have uti
lized this process, and thus the meaning of the enumerated
rights has been proportioned by the same process. There
fore, when individual rights are a reality to a citizen, he
is thus surrounded with rights which are in reality both
unenumerated and enumerated. A heritage of unenumerated
rights is always present when individual rights are enforced
and present.
■ At the time of the American Revolution a hard-core
political theory of natural rights was in the air. These
rights were fashioned by the times and took on character
istics which are prevalent today. They were believed to be
i
j
natural and divine, absolute and eternal, essential and
4
inalienable, fundamental and indefeasible. These attitudes
I
became fused with civil and constitutional rights and re
sulted in a strongly rooted and broad range of rights far
j
beyond the confines of such a small collection of rights as
i
ifound in the first eight amendments. The limits of enumera-
j i
jtion have been met in this century and the great profusion
lof unenumerated rights is necessarily manifesting itself. j
j l
A political theory set m the eighteenth century m ;
America has become a political reality, and is a living \
example of individual rights being recognized, whether they
fit the pattern of enumerated or unenumerated ones. j
i
i
This study is a descriptive analysis of this new j
doctrine and the pattern it is assuming. The areas reviewed
hre those of interest to the author, largely unrelated to
each other, and not necessarily the most significant. How
ever, they are examples of a developing pattern of great
importance. Those unenumerated rights, both emerging and
established, which are discussed here are:
1.
2 .
3 .
! 4.
i
i
i 5 .
The right to public welfare
The right to travel
The right to privacy
The right to citizenship
The right to die (to refuse medical care)
5
The individual's rights to a job, to an education, to medi-
ical care, and many other such rights are not considered in
j
/
jthis study.
I It is the author's purpose, then, to define a new
i
Ipattern of constitutional interpretation, and to present
evidence from important cases that this development is valid
and necessary, and will prove capable of meeting the demands
i
made upon it. In the conclusion, such broader aspects as
consensus, legal method and jurisprudence, and the histori
cal structure of the legal system are considered.
CHAPTER I
! THE RIGHT TO PUBLIC WELFARE
I
Introduction
The good life has been the goal of social man since
Jthe beginning of time. The modern requisite for the attain-!
;ment of the enviable state is the psychic liberation of the
!
iindividual from the pervasive visible and subliminal pres
sures of a technological society. Man as an individual
cannot constantly live under such pressures; he must be ablej
to preserve enclaves to which the great collective society
icannot reach, he must enjoy opportunities for individual
fulfillment. Perhaps the single most important protective
barrier man has in 1971 America is property. It is not his
only protection and must of necessity be set in a pattern of
many other institutions and practices, but it is an essen
tial ingredient of individual liberty. A closely related
; reality of the times is that government is now the major
source for production and distribution of wealth. This
government largess is fed upon by almost every interest in
America. It is necessarily so by the very nature of our
'present economy. Therefore, the majority of our citizens
I
are dependent upon it for their source of property. The
part of the largess fed upon depends upon the power and
position of a given interest or individual. The great power
j
linterests feed upon the choice sections, while others gravi
tate to whatever position they can reach. Public welfare,
with the legal aspects of which this chapter is concerned,
comprises only one area of the government's distribution of
this wealth. There are many more, all of which are more
preferable, such as off-shore drilling permits, radio and
television franchises, hospital, education, and shipping
Subsidies, defense contracts, tax advantages, and many
others both direct and indirect. One might then ask: are
government subsidies to ship owners essentially different
from welfare payments to a needy mother? How does a tele
vision franchise differ from a direct grant of money? Is
the delivery of Life magazine by the post office at a frac-
i
tion of delivery cost not a subsidy to Time-Life, Inc.? How
does a cotton subsidy differ from a grant to a blind city |
I
dweller? The economic existence of each individual and
i
I
every interest in America is more and more being affected
by government, though the fact remains to a great degree
junrecognized.
The ideal welfare state has been viewed by many as
■an oppressive entity, yet it would be difficult to deny that
isociety has benefited from the shift of power from the "pri-
i
I i
|vate" sphere of the giant trusts and monopolies to govern-
I
rnent; if the management of our public bureaucracies is also I
.effectively controlled by a minority, it is at least a
;broader and for the most part more dedicated and accountable;
minority than an entrenched plutocracy could conceivably
have been.
j
This chapter is an attempt to examine the develop- j
| . I
ment of public law with respect to one aspect of the dis
tribution of the national wealth, that of public welfare.
! It is the position of the writer that public welfare must
be accorded a status comparable to that of other forms of j
government activities, such as the grants, subsidies, and j
other aid extended to business, scientific research, medi
cine, education, and others; that public welfare must no
l
!
longer be viewed as a gratuity but rather as a statutory j
right, once a statute is written.
9
History
It is only recently that we have begun to witness
the application of libertarian principles to the problems of
I
Isocial or public welfare recipients in the United States .
There have been a few test cases, and a slight shift from
I
jthe historical die in which public welfare has been cast to
Ian emphasis upon a civil rights approach. The 1964 Con
gressional declaration of war on poverty accelerated this
j
'trend. Outmoded notions of welfare as charity and a privi
lege, as well as the unconscious presumption that poverty is
:sinful, will not fade quickly, but it appears that the
present awakening will be irreversible. j
i
The roots of present-day anachronistic attitudes
toward public aid may be traced to the early poor laws of
'England, and mainly the emphasis of the Elizabethan poor
laws. Before the Reformation, relief for the poor was the
j
I
responsibility of the church. It was simply a gratuitous
act and came from voluntary contributions in the parish. It
isoon became one of the main disbursements of the church, yet
this was inadequate in many instances and public bodies here
and there took up part of the burden, together with private
^organizations . The payments were based on Christian char-
i
I
|ity, and the donor's motivation was chiefly his belief that
10
the practice would enhance his chances and place in heaven.
Thus there was very little emphasis on how the alms payment
|
|was used. As time passed the municipalities played a
igreater part, until in time they carried the main burden of
aid to the poor, eventually through taxes levied for that
specific purpose. What had once been a mystical insurance
was now a mere community duty: as charity became obligatory
I
i
and the rewards in heaven increasingly vague, the attitude j
ichanged, and relief was now begrudgingly given. The result ;
l
was that by the eighteenth century in England the adminis- j
j
itration of public assistance became penal and repressive. j
i
I
Its necessity was regarded as a nuisance, while the poverty ;
of the recipients was universally ascribed to their own |
wrong doing, laziness, sin, or dissoluteness. Such atti
tudes have been preserved in the American heritage and been
enacted into our present social welfare legislation. I
I
One of the areas of almost direct carry-over is thatj
|
of local responsibility. In England the parish was respon
sible for the collection and administration of funds and the
conditions attached to disbursement. Under English law |
there developed the concepts of settlement and removal, com-|
parable to our concept of domicile, and a parish was not
responsible for any poor not "settled" in that parish;
11
indeed, a poor person could be removed to his former parish
for aid. Such practices in modified form persist in Amer-
i
jica, and their main thrust has only recently been modified
by the Supreme Court in the case of Thompson vs. Shapiro,'*'
which held that a one-year residency requirement for aid to
jneedy children is unconstitutional. Another Elizabethan
principle is that of family responsibility, which justified j
: I
the state's requirement that relatives of destitute persons \
: j
aid in their support. Although the concept endures, it has
been considerably modified by a Supreme Court case, Depart-
2
ment of Mental Hygiene vs. Kirchner.
Perhaps the strongest and most persistent notion is
that any allotment of aid is a "gratuity," not an entitle
ment . This fixed and widespread conception, traceable
directly to the English poor laws, is responsible for the
j
imposition of a wide range of conditions on welfare recipi- j
ents. Recipients are virtually at the mercy of legislatures!
3 ' ?
and the administrators of a program. Recent court deci
sions have specified that unconstitutional conditions cannot
1392 U.S. 923 (1968). 2380 U.S. 194 (1964). i
I
j ^See Lynch vs. U.S., 292 U.S. 571 (1934); Frisbie
vs. U.S., 157 U.S. 160 (1893); and Penny vs. Reis, 132 U.S.
464 (1889).
1
12
be imposed on welfare recipients, and that the question
whether welfare is a "privilege" or a "right" is irrelevant.
jThe United States Supreme Court stated in Sherbert vs.
I
yerner:
i
j
]
The South Carolina court's construction of a statute
cannot be saved from Constitutional infirmity on the
grounds that benefits are not appellant's "right" but
merely a "privilege."4
! . . . 5
j The Supreme Court in one case. King vs. Smith,
jfound a statutory "right" to welfare:
!
Aid to dependent children in financial assistance is
| a statutory entitlement under both the laws of Ala
bama and the Federal Social Security Act, and where
| the child meets the statutory eligibility require
ment, he has a right to receive financial benefits j
under the p r o g r a m . ^
Another vestige of the English heritage is the re
quirement that aid recipients not refuse to work. Our pres
ent rules of Unemployment Compensation require that one be
dismissed from his job by an employer and not quit volun
tarily in order to receive aid] recipients cannot continue
to receive aid without at least a showing of attempts to
find a job. A related provision of welfare law is "work
4374 U.S. 398, 404 (1963).
5392 U.S. 309 (1968). 6Ibid.
reliefj" the application of which may stipulate work totally
putside the person's skills or retraining for a job he may
jnot want or be suited for., and may even require a relocation
even though he does not wish to move. Many times the pres
sure is indirectly brought; in certain cases, by means of a
threat of prosecution under criminal statutes if "work
orders" are not complied with. Undoubtedly the idea of a
I
guaranteed annual wage will alter these injustices consid
erably. The idea of repayment by the recipient is another
'carry-over from our English heritage; it appears to be a
distinct issue, and is treated separately from family re
sponsibility. In legal terms it simply predicates the
establishment of a creditor-debtor relationship, certainly
linconsistent with the usual concept of charity. The wide
range of moral and other strictures embedded in the welfare
laws promises countless possibilities for litigation. The ]
variety of conditions is seemingly endless and includes such
requirements as loyalty oaths, the proscription concerning
, cohabitation, and many others which may in their enforcement
require frequent intrusion upon individual privacy.
The issues at law are complicated by several fac
tors . The courts are frequently forced to deal with the
jintricacies of administrative procedure. Every vast
14
bureaucracy tends to incorporate abuses and become oppres-
sive, and our growing and overburdened welfare structure is
jno exception. More importantly, there is no stable basis of
i
welfare litigation, such as a relevant common law heritage
!or an established constitutional right to welfare. Since in
jany given case the proposed right to welfare must be traced
to a statute or statutes, the basic legal questions must be
■considered in the context of statutory obligations, with an
leye on administrative abuse and any possible violation of
[constitutional rights .
The Social Security Act of 1935 and its amendments
represent a fundamental change in government's approach to
the question of public aid, yet the outmoded attitudes of
;the past tend to persist at administrative levels. While
Ithe courts in general have been quite receptive and pliable,
the legal issues have only recently begun to develop and are
yet unfamiliar to most of the legal profession. The pro-
i
tection of rights in most areas has been a result of com-
i
prehensive growth through the process of litigation, but the
very nature of the welfare situation discourages litigation;
welfare clients usually are not even aware they might be
'entitled to specific legal protections.
! The recent legal decisions represent in their
15
general trend an emerging and developing doctrine of social
welfare. The actual case issues, however, still faithfully
!
jreflect the Elizabethan basis of our system of social as-
j
jsistance. The three major issues concern the following:
i
1. Family responsibility (that is, can other mem-
bers of the family be obligated for welfare payments to
certain members of their family?).
|
! 2. Repayments of benefits by the recipients if theyj
| I
ishould acquire assets in the future.
3. Enforced work or availability for work as a con
dition of eligibility. j
: |
James P. Cooney and H. David Prior, in an article |
entitled "Social Welfare— An Emerging Doctrine of Statutory
7
'Entitlement," outline the form they believe the legal
i
'issues take.
I
They term one of their tests an "Unconstitutional j
I
Conditions Test," pointing out that a recipient is often j
placed in the position of being forced to choose between
receipt of the aid and retention of a constitutional right.
The requirement of a loyalty oath or moral prohibitions are
among the most common instances of such conditions.
! ^44 Notre Dame Lawyer 603 (April, 1969).
The authors also point out that many of the legal
problems concern interpretation of statutes and the question
I
whether there exists any reasonable relation between an
jenforceable condition and the purpose or end of a statute.
|The question may arise, for example, in cases in which the
i
presence of a paramour in the house of a welfare mother re
sults in a loss of aid; the statutory justification would
:bs simply that no reason can be adduced to extend aid to j
'children of an able-bodied father. I
| l
Finally, and perhaps most important, have been the
! I
questions of procedural due process and their application to
welfare recipients. j
I
Procedural Due Process
I Certainly in no field has there been such a reluc-
'tance to adhere to procedural due process as in that of
public assistance. The welfare recipient is now and has
i
always been an unpopular member of society, and thus must j
appeal for support for his position in an always hostile and
reluctant environment. The courts have been almost his only
source of redress and protection, yet his access to the
court system has naturally been limited. The field of wel-
jfare law has thus hardly availed itself of the extensive
17
body of American law of administrative procedure. The in
numerable arbitrary administrative decisions and processes
jthat daily affect welfare recipients remain largely unex-
j
iamined and beyond the reach of legal counsel and court ac
tion . Yet the necessary legal machinery exists. Adminis-
j
jtrative law's distinctions between legal right and privilege
have long been applied in cases of business licensing, fran-
!
! chising, professional licensing, and the like; the require- j
: I
ment of procedural due process in cases involving the grant-j
ling of privileges is an established doctrine.
It is well-established, for example, that any de
nial, restriction, or revocation of the privilege of prac
ticing law must be reasonable and not arbitrary.
|
There is no inherent right to practice law— the right
arises after qualification under the rules has been
I established.®
j
In another case involving a denial of membership in the New
York Bar, the court said:
Petitioner was clearly entitled to notice of and a
hearing on the grounds for his rejection.®
And further:
| ^Brooks vs. Laws, 208 F. 218, 228 (1953).
I ®Willner vs. Committee, 373 U.S. 102, 105 (1963).
r
18
We hold that the petitioner was denied procedural
due process when he was denied admission to the bar
I by the appellate division without a hearing on the
i charges filed against him before either the commit-
| tee or the appellate division.^
The holding here indicates procedural due process, in its
entire breadth as we know it, applies at every stage of the
'determination. And in an old case, Goldsmith vs. United
j I
I
States Board of Appeals (1926), the court says in speaking j
I
of the board's power to admit, suspend, or disbar anyone: !
i
i
The exercise of discretion to be exercised after fair
investigation, with such notice, hearing, and oppor
tunity to answer for the applicant as would constitute
due process .
Another type of case, most frequently encountered in!
the franchise and licensing areas, holds that once a privi
lege is conferred, it is subject to due process require
ments. In a case involving revocation of a stockbroker's
license, the court said:
The regulation must be done in strict subordination
to constitutional and lawful safeguards of individ
uals. - * - 2
In a 1965 Texas case, the court in dealing with revocation
10Ibid.. p. 106. 11270 U.S. 117, 123 (1926).
■ ^ A r c h e r vs. Securities and Exchange Commission,
133 F2nd 795, 803 (1943).
19
of a state tobacco license said:
I
| This is a privilege which does not have to be
i granted; however, once it is granted it can only
| be taken away with good cause. . . . We hold that
! the petitioner is entitled to due process of law
j as guaranteed by the State and Federal Constitu
tions .13
|
i
j
i Here we have a license privilege which once granted
j
jwill be treated as being subject to due process requirements!
! '
by the court. These established rules of administrative lawj
I
are obviously applicable to public welfare administration, j
The problem is that welfare recipients seldom possess access!
i
!
to counsel; and consequently are not in a position to make !
use of the existing safeguards of due process. The aid
recipient is in a much different position from that of the
i
television station protecting its franchise., or the liquor
license holder protecting his license, or a shipping company
protecting or applying for a government subsidy. The public
welfare recipient is generally viewed as demanding and un- j
i
(reasonable, and in his compromised and precarious position
is certainly not likely to ask that assistance be extended
to providing him counsel to protect himself against possible
; I
inequities. The help of the poverty program law offices has
| ^House of Tobacco vs. Robert S. Calvert, 394 S.W.
Rpts. 2nd 654, 657 (1965).
20
been immense* but there are already many who would terminate
Ithe program. Should that avenue of assistance disappear*
|
jthe courts might be called upon to evolve a comprehensive
! 14
doctrine similar to the Miranda doctrine m the field of
;criminal law. Criminal law* of course* unlike welfare law*
I
|
is an acknowledged branch of jurisprudence; to apply its
(developments to the latter would require some creative j
I
! !
ilegalism on the part of the courts. However* the Miranda j
I • I
analogy is pertinent. The aid recipient's rights may be ;
i
abused at any stage of the administrative process. In
! applying for a franchise or license* an applicant can and |
j
does usually take the wise precaution of enlisting expert
legal help from the first step to the last. The typical j
; |
(indigent applicant for public assistance possesses no such |
f
resource. At the time of intake he may be arbitrarily re
fused* and once aid has been granted it may be removed or j
i
restricted in an illegal manner* and in the absence of |
l
1
(Counsel the abuse may never be recognized or rectified.
Laws of Residency
i I
i I
One of the most persistent themes carried down from I
|
the Elizabethan poor laws is the concept of local
I
! ^Miranda vs. Arizona* 384 U.S. 436 (1965).
21
responsibilityj the concept has basically taken the form of
|
residency requirements by states as conditions of eligi-
|
bility for welfare, but also appears in the laws regarding
Ifamily responsibility, particularly the state laws requiring
^certain relatives to aid the state in support of indigent
i
jrelatives, and in the stipulation of repayment by the re-
I
Icipient in the event that he acquires any personal or real |
I i
i 1
[property subsequent to the period of receiving aid. The j
flatter usually takes the form of a statutory lien. I will j
i
treat these as three separate legal areas, since they have
been treated as such by the courts:
1. Residency requirements
2. Family responsibility
j
I 3. Repayment by the recipient
; Residency requirements in effect have forced the
welfare applicant to relinquish a constitutional right as a
means of qualifying for a needed benefit. He has had to
weigh his right to travel— assured by the privilege and
^immunities rationale— or to change his residence from state
to state— grounded on a similar doctrine as well as by the
equal protection doctrine— against the necessity of meeting
state legal requirements for eligibility for welfare aid.
'After a long period of debate and speculation, an aspect of
22
the matter has been finally settled by a five to three
Supreme Court decision in a recent case, Shapiro vs. Thomp-
15
json. The decision simply stated that the one-year resi-
I
!
'dency requirement abridges the constitutional rights of a
j
-recipient and residency requirements must yield. The rights
i
i
jcovered by the decision were the so-called "right to travel"
Sand to equal protection. The Supreme Court was affirming an
I
jappeal from several three-judge Federal District Court de- !
cisions. The Court stated that it is a denial of equal j
protection of the law to aid only one group in need on the
sole ground of a one-year or longer residency and refuse
another group in like need on the sole ground that they have!
lived there less than a year:
i The statutory prohibition of benefits to residents
| of less than a year creates a classification which
constitutes an invidious discrimination denying them
equal protection of the laws .... This constitu
tional challenge cannot be answered by the argument
that public assistance benefits are a "privilege"
and not a "right." (See Sherbert vs. Verner, 378
U.S. 398 [1963.)16
iThe Court further stated that the right to travel is a well-
established right and that the apparent purpose of the law
i
in question was to "chill" exercise of the right: j
15394 U.S. 618 (1969). 16Ibid., p. 629.
If a law has no other purpose than to chill asser
tion of constitutional rights by penalizing those
who choose to exercise them, it is patently uncon-
| stitutional.^
The case is important in several respects. First,
|
jit eliminates the residency condition altogether. It fur-
!
ther strengthens the concept of entitlement as a right, not
a privilege, and clearly implies that the need for aid and !
j |
jits acceptance in no way eclipse basic individual rights.
i
IFinally, it represents a major initial step toward elimina- j
tion of unconstitutional conditions for eligibility. It is
another instance in which the judiciary has been able to
I
i
resolve an issue that may have proved intractable at the j
legislative or executive levels.
Family Responsibility
The family or relative responsibility laws may re
quire one to reimburse the state for aid or care received
by one or more relatives. Such a requirement naturally
results in considerable conflict in situations in which
jfamily relations are strained. The law provides some alle
viation in this respect, though rather inconsistently.
j
Relative responsibility is less burdensome, for example, in
17Ibid., p. 631.
24
the case of aid than in the area of care of the mentally
ill. The reason may lie in politics. Old people vote, and
also happen to be more numerous than institutionalized
psychiatric cases. Yet the effect of the imposition of
I
Ifamily responsibility in mental cases is liable to be par
ticularly adverse, coming at a time when family harmony is
Especially needed and tending to disrupt it with dissension
land controversy.
i In the case of the Department of Mental Hygiene vs.
18
Kirchner, it appeared that a broad principle had evolved
and that relative responsibility provisions were in general
to be held unconstitutional. But the logical deduction has
proven false. The Kirchner case has for all practical pur-
'poses been restricted to its facts and differentiated to the
ipoint of ineffectiveness. The facts of the case are quite
simple. A Mrs. Schaeche was adjudged mentally ill in 1953
and- confined by the State of California until 1961. Upon
the death of her daughter a claim was filed in the estate on
behalf of the Department claiming liability for the care of
the mother. The trial court allowed the claim, the executor
appealed, and the California Supreme Court reversed, holding
i i p
| 36 California Reporter 488 (1964).
25
that the duty of care for a confinement of this kind is a
duty of the state in its function of protecting society, and
that charging the related expense to any one group in soci
ety (i.e., relatives) is therefore a violation of the equal
protection clause. The court indicated a rather broad sweep
i
|in its decision, although it has not been subsequently fol-
I
: lowed.
A civil commitment as in the instant case, the pur-
, poses of confinement and treatment or care in either
case encompass the protection of society from the
confined person, and his own protection and possible
reclamation as a productive member of the body poli
tic. Hence the cost of maintaining the state insti
tution, including provision of adequate care for its
inmates, cannot be arbitrarily charged to one class
in the society; such assessment violates the equal
protection clause.
Although numerous cases can be cited wherein so-
called support statutes have been sustained against
| various attacks research has disclosed no case which
squarely faced, considered, discussed and sustained
| such statutes in the light of the basic question as
to equal protection of the law in a case wherein it j
was sought to impose liability upon one person for |
the support of another in a state institution. No
such constitutional issue appears to have received
either consideration or documented.- * - 9
Section 6650 by its terms imposes absolute liability
upon, and does not even purport to vest in, the
servient relatives any right of control over or to
recoup from the assets of the patient. A statute
obviously violates the equal protection clause if it
19Ibid .. p. 490.
selects one particular class of persons for a spe
cies of taxation and no rational basis supports such
! classification.
i
| The United States Supreme Court in 380 U.S. 194
I
i
| (1965) in effect affirmed the decision by declining juris-
I
diction, stating it was not apparent from the California
decision whether the case was based on the Federal or the
istate equal protection clause or both. The decision has I
I
generally been narrowed in subsequent use at a legal level
to very limited application. A sample of cases will illus
trate the lack of uniformity and the present uncertainty of
the law in this area.
21
In re Dudley was a similar case, but the court j
I I
i
distinguished it from Kirchner on very narrow grounds. The j
; I
jstate was attempting to charge a mother with a portion of
the costs of care received by her retarded daughter in a
state institution. The court distinguished Kirchner as not j
applicable in view of the nature of the illness:
Kirchner must be examined with more particularity
to determine its applicability to the facts pre
sented by this case. Furthermore, although the
legal and factual incidents of mental illness and
mental deficiency may be similar in many respects j
!
I 20Ibid. . p. 492.
2^48 California Reporter 790 (1966).
27
it does not necessarily follow that the legislature
cannot provide a different system of care for per-
' sons suffering from the latter than it provides for
persons suffering from the former, and in doing so
provide for a different method of financing such
22
care. ^
iThe court further distinguished Kirchner because the present
i
lease concerned only the procedure for enforcement of lia
bility whereas the statute in the Kirchner case imposed lia
bility .
Moreover the distinction between the class of persons
1 upon whom liability is imposed by the W. & I. Code
6650 and section 5620 (5250) is significant. The
former section purports to impose liability, whereas
the latter merely prescribes a procedure to enforce
what liability for support may otherwise exist.22
Although not essential to the holding in the case, the lan
guage of Justice Sims suggests the case is not clearly one
involving public charity:
i
There is nothing in the Constitution inhibiting laws
extending charity to people in need of it, but it is
not necessary to extend charity to those who are able
to support themselves. Indeed, it would be unreason
able to do so.24
; In a 1966 case the Department appealed a lower court
judgment which found section 6650 of the California Welfare
22Ibid., p. 792.
24Ibid., p. 798.
23Ibid.. p. 794.
28
and Institutions Code unconstitutional based on the Kirchner
lease. The Supreme Court reversed. The decedent's widow had
j
jbeen in a California mental institution for many years, and
|the Department of Mental Hygiene filed a creditor's claim in
i
;his estate. The executor's defense was the unconstitution
ality of 6650 of the code. The Court held against him, say
ing: |
A statute obviously violates the equal protection
clause if it selects one particular class of persons
| for a species of taxation and no rational basis sup-
| ports such classification (Dept, of Mental Hygiene
vs. Kirchner, 36 Cal. Rptr. 488 [492]). . . . The
classification must have a substantial relationship
to a legitimate objective . . . certainly, the one
class delineated therein, husband— is not arbitrary
and unreasonable, for the common law and other stat
utes of this state entirely independent of section
6650, have codified the moral obligation of the hus
band to support his wife in sickness and in health
j arising out of the marital relation . .. in short
| without reference to 6650, the husband is otherwise
i liable for the support of his incompetent w i f e .25
j i
I cite the above cases in detail to illustrate the
■ j
arguments and methods used by the courts to limit the effect!
;of a decision which appeared to invalidate relative respon
sibility laws . The courts have reverted to the basic posi
tion of common law: that relatives, other than husbands or
I 25Depar- t - ment of Mental Hygiene vs. Kolts, 55 Cali-
jfornia Reporter 437, 443 (1966).
29
parentsj are not responsible for indigents.
The following California court statement is an in
dication of the diversity of factors affecting relative
jresponsibility cases:
|
Limit of liability imposed by statute [California
Civil Code 206] on children to maintain needy parents
. . . is the extent of liability which substantive
due process would constitutionally permit. . . . A
! child's ability to support needy parents cannot be
! measured or an equitable judgment made without com
parison of net resources respectively of each child
to be charged . . . A further fact to be considered
| is the extent to which a parent can call morally
upon his child by past treatment and not just by
consanguinity. . . . in making that decision the
trial court has wide discretion.^6
i
These and other considerations preclude uniform application
; j
of any general rules evolved at this time. The court deci- j
t
sions and statutes undoubtedly reflect the prevailing legis-j
: I
I
lative and public belief that the state should not be solely!
! j
responsible for all indigents, mental defectives, and depen-|
dent persons; the over-all legal reasoning in the area is
consequently rather unclear and inconsistent. An important
question is whether there is any concept of fault involved
in delegation of responsibility: does the law presume that
the relatives have somehow failed in their duty to their
j vs # Gaines, 71 California Reporter 795
| (1968) .
30
family and society in rearing an indigent or dependent per-
Ison? Any implicit legal concept of fault may change with
i
i
jthe times, and in that event our present stage may prove a
!
itransitory one.
Thus the law in this area remains complicated by the
I
jvolume of specific legislation, the inconclusive nature of
Ithe recent court decisions, and the fact that most deter- j
j i
minations of responsibility are made at an administrative
ilevel. The present confusion demands a definitive case
! i
decision that would have to be observed by legislatures in
the future. At present program administrators are lax in !
i
1
enforcement of relative responsibility laws, and it may be !
!that this is the interim answer to the problem while we wait
for some clarifying changes.
Repayment by the Recipient
The obscurity and complexity of the law surrounding
repayment is a reflection of the confused underpinning of
philosophical and legal theories concerning the rights of
I
indigents . So many queries are left unanswered it is sur- j
prising that the law is not more confused. The problem is
essentially one of defining the nature of public aid.
| If such aid, as in its early British past, were
entirely a gift, there could be no basis at all for repay
ment by the recipient. Obviously we have deviated far from
|
isuch an assumption. It also appears that one may legally
I
ipossess a right to aid and still, under certain conditions,
be obligated to repay. In such cases aid is in effect
I
jgranted in a creditor-debtor relationship. There is in fact
ino consistent theoretical basis for repayment laws, which
reflect perhaps a desire on the part of legislatures to re- j
coup some of the expended welfare funds, and perhaps a moral
‘ attribution of fault or the idea that it would be wrong for
a recipient to acquire property or funds and not repay the
community that aided him.
The law's inconsistency is reflected in the state
^statutes dealing with repayments. A 1964 analysis by the
I 2 7
Department of Health, Education and Welfare shows no dis
cernible national-uniformity among state statutes: six i
!
i
states provide for recovery by the state m all cases except;
aid to families with needy children; Tennessee only provides
for repayment of aid to families with needy children; seven
states may recover only aid to old-age assistance
| ■ 27u .s . Department of Health, Education and Welfare,
‘ Bureau of Family Services, Public Service Report, No. 50
|(Washington, D.C.: Government Printing Office, 1964).
recipients and New Jersey may recover all except aid to the
'needy blind, whereas the opposite is true in Colorado. Four
t
j
jstates provide only for recovery of old-age assistance and
j
laid to the totally disabled, and two states only for repay
ment of old-age assistance and aid to the blind. California
i
i
has made all of the above federally funded programs free of
repayment requirements by statute. Thirty-two states pro- j
I i
vide in some form for repayments and the rest do not. The j
I
situation seems pregnant with constitutional issues, par-
: I
i
ticularly in view of the discriminatory recovery categories.j
28 i
The courts in general, as m Snell vs. Wyman, have|
determined public welfare recipients' rights basically on \
statutory grounds, disregarding the question whether basic
unstated rights are involved. The court usually simply de
cides whether a given statute is constitutionally permis- j
sible. This is the type of decision reached in Snell vs. \
Wyman. The decision is worth noting in that it allows the
individual states to treat welfare benefits either as gra
tuities or as loans subject to statutory conditions. The
states are thus free to establish rules and statutory obli
gations that would doubtless deter the aspect of
I 28281 F. Supp. 853 (1968).
rehabilitation. The court had an opportunity in this case
to rectify and stabilize the situation, but chose to evade
the issue. The United States Supreme Court avoided dealing
yith it on grounds that the case was brought in the wrong
i f o r m .
1
j The facts of the case are as follows: the three
I
plaintiffs had signed liens to the state of New York for
l
welfare relief they had received. They subsequently ac- j
quired certain assets which the state attempted to claim
j
based on prior assignments by the recipients for future
assets. Mrs. Snell acquired a $900.00 interest in an apart-
j l
ment in which she lived, another sixty-eight-year-old re- j
cipient acquired a small interest in a matured life insur
ance policy, and another received money in connection with
a serious accident. The plaintiffs question the constitu
tionality of the repayment statutes on basically three
grounds: the due process clause and equal protection clause
:Of the Fourteenth Amendment, and a conflict between the
Federal Social Security laws and the state regulation. The
court stated that it would deal with the issues, but ob
scured them by adopting a rather conventional approach. The!
; i
i
majority took a very restrained view:
|
Plaintiffs' complaints would move us to vote for
34
changes if we sat in the state legislature. But
I they do not approach a showing of irrationality or
j arbitrariness warranting exercise of the limited
| veto power of the federal judiciary under the 14th
! Amendment.^9
I
i
i
jAs to the question of equal protection, the majority states:
i
! A statutory classification meets the equal protec-
i tion test if it is practical and is not reviewable
! unless it is palpably arbitrary.39
| j
The following questions, among others, were disregarded: j
i |
1. Was there deprivation of property without due
i |
process of law? Was the original condition based on an un- j
: i
constitutional discrimination? Is a condition based on an j
; I
|
involuntary status, i.e., poverty, constitutional? j
2 . Was this not a violation of substantive due
process (as the dissenting judge termed it, "freedom to
: 31
achieve self-support and personal independence"?).
| 3. Were not the assignments obviously in the nature
|
of contracts of adhesion? 1
The case may thus be viewed as a lost opportunity to clarify
some of the problems raised, even if the court may have felt
it necessary to defer broader action to a more receptive
I
time.
! 29Ibid.. p. 862. 30Ibid., p. 865.
j
| Ibid., p. 871.
The confusion and inconsistency of the provisions
ifor repayment of public aid are typical of the present body
jof welfare law. Repayment defeats welfare's proper purpose,
ias it tends to inhibit the rehabilitation of the recipient.
iPrivate property and the opportunity and freedom to achieve
i
jindependence are necessary to a free individual; the poor
|
■cannot be expected to pursue these essential goals while
l
burdened with involuntary discriminatory bbligations to the
state.
Conclusion
The law reflects the colossal failure of social
welfare in America and the theoretical inconsistency and
confusion underlying that failure. The solution to this
costly problem will require new attitudes on the part of
the recipients and all other segments of society.
The problem is a painful one for both recipients and
nonrecipients. Society's attitude toward the needy is cer
tainly not uninfluenced by a kind of primitive fear and even
hatred of those threatening the existence of society with
1
their dependency. Fear causes punitive measures to be taken
to control the persons one fears. The public justifies its
measures against the poor by ascribing most of society's
36
ills to their presence. The resulting conditions and re-
jstrictions are all based on the assumption that the aid
jrecipient belongs in a lesser category as a person. In Nazi
I
t
iGermany the problem was resolved by a direct approach to all
!
ipersons needing aid: a threat of extermination. Our Ameri-
j
jean welfare system prescribes a mode of social and psychic
^extermination. Yet American attitudes remain strangely j
!ambivalent: our society is torn between reluctant acknowl
edgment of its Christian duty and its strong commitment to
i I
individual responsibility and initiative and the demands of j
a jostling, competitive way of life. The conflict gives j
rise to a form of paranoia and to legal compromises that
I
simply are not related to realities. Much legislation, of
course, is simply economic* society naturally wishes to
i
minimize costs and thus takes measures designed to do so.
It must be admitted that social welfare has sue- i
ceeded in alleviating a great deal of suffering; however, j
our present system has failed to rehabilitate. There have
been no adequate general programs to train or educate the
i
i
marginal or risk group that receives aid. Many retarded j
persons are only "functionally" retarded and can be helped; j
the physically handicapped can be trained to enter useful
!
joccupations; persons unemployable due to changes in
37
industrial patterns can be relocated and retrained. Yet the
public's attitude and the problem of cost have prevented the
i
!
jdevelopment of a rational system of rehabilitation of the
i
Ipoor.
j We are nevertheless witnessing the emergence of new
j
I
jmodes of viewing and dealing with the problem of poverty.
|Charles Reich, for example, in his article "The New Prop- j
:erty,"^ sees public welfare as merely one of the many j
^channels of government largess. There are many others, such
as government contracts, franchises, subsidies, government
ijobs, use of public resources, and the like. He simply j
takes the position that these are new forms of wealth re- j
placing the traditional ones and requiring new attitudes
|toward property. The primary source of wealth is now the
government, and while some in our society derive their share
in more socially acceptable forms than others, the source isj
the same. He sees the television franchise, the shipping
company subsidies, the high discount rate to a bank, the
welfare check, as all belonging to the same property and all
based on the same right. Reich sees private property as the
best means man has devised as shelter and protection of the
I
; "^7 3 Yale Law Journal 7 33 (1964).
38
individual spirit of freedom; as such it cannot justifiably
ibe reserved from large classes of society* nor can govern-
I
|ment as its source afford not to ensure its equitable dis
tribution. This recognition* coupled with the admission
|that misfortune and deprivation are often caused by forces
jfar beyond the control of the individual* should lead even-
I
itually to over-all welfare reform. The price of poverty*
i
jcrime* mental disease* and social upheaval is a heavy one
jeconomically and socially; it is to be hoped that an en
tirely new system of aid and rehabilitation based on the
recognition of basic human rights may help to eliminate
these ills and their terrible exactions.
The assurance of a right insulates and protects one*
!as property does* from the ruthless and destructive pres-
!
sures of a complex society. Property or an income enables
an individual to choose* to develop and fulfill himself;
j
thus its fair distribution enables society in turn to re- j
: i
generate itself and grow* to become flexible and thus en
dure. Our vision of individual liberty and social stability
is necessarily based on general economic security. Let us j
not deny our society this essential when vigorous health is
jso close at hand.
CHAPTER II
THE RIGHT TO TRAVEL
Although the so-called "right to travel" is not an
enumerated right under our constitution, it has been his-
i i
i I
itorically recognized both m America and m England. It has|
isurfaced quite quickly whenever restrictions were placed
i
jupon it. Abridgments of the right have generally taken the
form of political restraints * always with the same justifi
cation, to wit, the security and best interest of the public
realm, or as nowadays, national security.
' Let us look at some early English instances. In the
early eleventh century King William Rufus (son of William
'the Conqueror) placed a restriction on Anselm, the Arch
bishop of Canterbury, who wanted to go to Rome to receive i
| l
the pallium from Pope Urban II. The king forbade the jour-
i
hey on the ground that only the king should decide which
Pope must be recognized by the people of England. In the
twelfth century similar restrictions were included by
40
Henry II in the Constitutions of Clarendon, which prohibited
travel by ecclesiastics outside the kingdom without the
king's permission. Although the Constitutions were re
scinded, the problem must have continued, judging from
i
I
jClauses 41 and 42 of the Magna Carta:
I
l
| c. 41. All merchants shall have safe and secure
| exit from England, and entry to England, with the
! right to tarry there and to move about as well by
i land as by water, for buying and selling by the
ancient and right customs, quit from all evil tolls,
except (in time of war) such merchants as are of i
| the land at war with us. And if such are found in
' our land at the beginning of the war, they shall be
detained, without injury to their bodies or goods,
until information be received by us, or by our j
chief justiciar, how the merchants of our land found J
in the land at war with us are treated; and if our |
men are safe there, the others shall be safe in our |
land.
c. 42. It shall be lawful in future for anyone
; (excepting always those imprisoned or outlawed in
accordance with the law of the kingdom, and natives
of any country at war with us, and merchants, who
: shall be treated as is above provided) to leave our
kingdom and to return, safe and secure by land and
water, except for a short period in time of war, on
grounds of public policy . . .
It should be noted that the subsequent reissues of the Magna
Carta did not include Clause 42, but only the more re
stricted 41. It might well be argued that Clause 42 was a
i
reiteration of the existing common law, but we cannot be
jcertain. Early assertions of the right to travel did not
jgreatly affect the scope of the Royal Prerogative, which
was quite restrictive but quietly eroded until its demise at
jthe time of the English Revolution. The freedom to travel
loutside the realm has grown in stature in England up to the
j
Jpresent, and is a firm and well-recognized right, undoubt-
ledly part of the unwritten constitutional law of England.
|
It is interesting to note that the writ employed to restrict
jtravel, the writ originally used to ensure the carrying out j
| I
;of the military obligation "to defend the King and the j
' i
Realm," became quite odious because of its broad use for the
king's prerogative, which included, among other things, con
trol of his subjects 1 movements. The broad writ fell into j
I
disfavor due to its abuse, and was finally limited to re- j
straining absconding debtors from leaving the realm. Cali
fornia Code of Civil Procedure 479 is a similar statute
presently part of the law of California.
1 |
Americans have been relatively free of restriction j
I
on foreign travel or travel between the states. Freedom of
movement is part of the American way of life and has been
with us throughout our history. Legally we placed the free-
;dom of ingress and egress between the states in Article IV
of the Articles of Confederation: "... and the people of
jeach state shall have free ingress and egress to and from
|any other state." However, this phrase never made its way
42
to our Constitution, nor did any stated guarantee of freedom
of foreign travel. Perhaps since neither freedom is men-
i
l
tioned in the convention debates, we may conclude that at
the time they were both regarded as unquestioned rights.
I
Our subsequent legal history has placed them among our un-
jenumerated rights .
j
| The privilege of foreign travel for United States
icitizens has been virtually unlimited; restraints imposed j
during periods of national emergency and war have been mini-
!
mal. The most common recent restrictions, those affecting
issuance of passports, have been in effect administrative
acts by the State Department to limit areas into which one
may travel and restrictions on specific classes . The latter
Ipart of this chapter will discuss the law and cases as they
i
have emerged in recent years. It will first be necessary to
treat and define the "right to travel" in terms of certain i
|
general concepts. What is it? Why is it important? How
broad is it? Is it important to our viability as a nation?
I
I Perhaps the "right to travel" is in fact a misnomer,
;and only an aspect of a larger, more fundamental right: a
right to know. A restriction on one's passport is certainly
a restriction on one's right to know. Zechariah Chafee, Jr.
|
'expresses well the educative value of travel:
43
Travel abroad enables American citizens to understand
that people like themselves live in Europe and helps
them to be well-informed on public issues. An Ameri-
| can who has crossed the ocean is not obligated to
j form his opinions about our foreign policy merely
I from what he is told by officials of our government
! or by a few correspondents of American newspapers.
| Moreover, his views on domestic questions are en
riched by seeing how foreigners are trying to solve
| similar problems. In many different ways direct
| contact with other countries contributes to sound
[ decisions at home.^
!
|
;No enlightened observer would deny the importance of travel
i
las part of a liberal education, nor that freedom in our
Iconstitutional sense must include the right to know, the
freedom to learn, unfettered by censorship and other forms
of state interference, yet the decay of this generic right !
: i
would perhaps not be particularly noticeable in this countryj
: j
|to the majority of our citizens. The "right to travel," the,
iright to know, are among those essential constitutional
i
ichannels that help to preserve our freedoms from that subtle;
erosion that inevitably results from nurtured ignorance and
apathy. The loss of such rights would doubtless emerge as
part of that insidious process accurately traced by de
2 . . .
Tocqueville very early m American history:
■ 1 - Three Human Rights in the Constitution (Lawrence,
Kan.: University of Kansas Press, 1956), pp. 195-196.
j 2Aiex; L s de Tocqueville, Democracy in America, trans.
;by Henry Reeve (New Rochelle, N. Y.: Arlington Press,
1966), Vol. I. _______ ___________________
44
I am persuaded, however, that anarchy is not the
principal evil which democratic ages have to fear,
but the least. For the principle of equality begets
two tendencies: the one leads men straight to in
dependence, and may suddenly drive them into anarchy;
the other conducts them by a longer, more secret, but
more certain road, to servitude.
. . . The love of public tranquility is frequently
the only passion which these nations retain, and it
becomes more active and powerful amongst them in pro
portion as all other passions droop and die. This
naturally disposes the members of the community con
stantly to give or to surrender additional rights to
the central power, which alone seems to be interested
in defending them by the same means that it uses to
defend itself
. . . After having thus successively taken each mem
ber of the community in its powerful grasp, and fash
ioned him at will, the supreme power then extends its
arm over the whole community. It covers the surface
of society with a network of small complicated rules,
minute and uniform, through which the most original
minds and the most energetic characters cannot pene
trate, to rise above the crowd. The will of man is
not shattered, but softened, bent, and guided; men
are seldom forced by it to act, but they are con
stantly restrained from action: such a power does
not destroy, but it prevents existence; it does not
tyrannize, but it compresses, enervates, extinguishes,
and stupefies a people, till each nation is reduced
to be nothing better than a flock of timid and in
dustrious animals, of which the government is the
shepherd.^
. . . It is therefore most especially in the present
democratic ages that the true friends of the liberty
and the greatness of man ought constantly to be on
the alert to prevent the power of government from
lightly sacrificing the private rights of individuals
to the general execution of its designs.^
•^Ibid. , p. 302 ^Ibid., p. 308
5Ibid., p. 333 6Ibid., p. 341
r
45
. . . As the ordinary notions of equity and morality
no longer suffice to explain and justify all the in
novations daily begotten . . . the principle of public
utility is called in, the doctrine of political neces
sity is conjured up* and men accustom themselves to
sacrifice private interest without scruple, and to
! trample on the rights of individuals in order more
i speedily to accomplish any public purpose . . . [I]t
is ever to be feared that revolutionary tendencies,
| becoming more gentle and more regular, without en-
j tirely disappearing from society, will be gradually
j transformed into habits of subjection to the adminis-
i trative authority of the government.7
! I
Let us review the law relating to international
travel and the recent Supreme Court decisions in passport
i
leases .
:
The four or five significant cases have developed in
i
a rather limited time, during which the main issues were !
quickly distinguished. In the very brief period of nine
i 8 9
years from Kent vs. Dulles to Lynd vs. Rusk, the "right to
i
itravel" has evolved into an established and distinctly de
fined right.
The "right to travel" is first affirmed, though
'through dicta, in Kent vs. Dulles and the right was soon
firmly established in subsequent cases . Kent vs . Dulles was
l
!
based on a State Department regulation which prohibited the !
7Ibid. . p. 342. 8315 U.S. 116 (1958).
9389 F2nd 940 (1967).
issuance of a passport to a Communist except to return to
the United States . The holding in this case was based on
the fact that the State Department had exceeded its delega
tion of authority and thus regulation as applied was in
valid. Thougli based on dicta, the holding is often cited as
i
establishing the "right to travel" as a part of the concept
|of liberty under the Fifth Amendment. The language upon
which those who cite it depend is as follows:
|
i
I The right to travel is part of the "liberty" of which
the citizen cannot be deprived without due process of
law under the Fifth Amendment. I * - 1
It should be noted in fairness to those who treat
this as a holding that the concept was virtually an unstated
ipremise of the other members of the Court.
’ In 1964 the Court in Aptheker vs. Secretary of
Istate'*’' * ’ faced the question as to whether there is a right to
travel and if so, to what extent it may be restricted. The
language of this case presupposes a constitutional right to
brave1:
The government while conceding the right to travel
is protected by the Fifth Amendment, contends that
the due process clause does not prevent the reasonable
10357 U.S. 125 (1958). 1;L378 U.S. 500 (1964).
47
12
regulation of that liberty . . .
The Court concedes that reasonable restrictions are valid,
but does not find that membership in the Communist Party
^justifies a restriction. A reading of the decision from
pages 509-514 reveals the following criteria.
i
I
j 1. If a restriction is to be placed on a member of
l
j
an organization, the member must have proven knowledge of
[
the organization's aims, and his degree of commitment must
j
be shown.
j
The section applies whether one knows or does not
know or believes that he is associated with an or
ganization operating to further aims of the world
Communist movement ... it is too broad . . . The
! fact of membership in the group has been made the
sole criteria for limiting the individual's freedom.
| The section also renders irrelevant the member's
degree of activity in the organization and his com-
| mitment to its purpose.- * - 3
2. Travel by the applicant must be shown to be
definitely harmful to United States interests in a strong
sense, and the government must show that the restriction
chosen is the least drastic method available for achieving
the permitted ends. Let us look at some of the language of
the Court.
! ~^Ibid., p. 505. ^ ibid ., p. 510.
48
In addition to the absence of criteria linking the
bare fact of membership to the individual's knowl
edge, activity or commitment, Section 6 also excludes
other considerations which might more closely relate
the denial of passports to the stated purpose of the
legislation. The prohibition of Section 6 applies
regardless of the purposes for which an individual
! wishes to travel. Under the statute it is a crime
| for a notified member of a registered organization
i to apply for a passport to travel abroad to visit a
j sick relative, to receive medical treatment, or for
| any other wholly innocent purpose. In determining
i whether there has been an abridgement of the Fifth
I Amendment's guarantee of liberty, this Court must
j recognize the danger of punishing a member of a Com- j
I munist organization "for his adherence to lawful and j
! constitutionally protected purposes, because of other
1 and unprotected purposes which he does not necessarily
j share." Noto vs. United States, 367 U.S. 290, 299-
300; Scales vs. United States, 367 U.S. 203, 229-230.
In addition it must be noted that Section 6 applies
to a member regardless of the security-sensitivity of
the areas in which he wishes to travel. As a result,
if a notified member of a registered organization were
to apply for a passport to visit a relative in Ireland,
or to read rare manuscripts in the Bodleian Library
of Oxford University, the applicant would be guilty
! of a crime; whereas, if he were to travel to Canada
| or Latin America to carry on criminal activities di
rected against the United States, he could do so free
from the prohibitive reach of Section 6.-*-4
In determining the constitutionality of Section 6, it
is also important to consider that Congress has within
its power "less drastic" means of achieving the con
gressional objective of safeguarding our national
security . . . Our national security can be adequately
protected by means which, when compared with Section \
6, are more discriminately tailored to the constitu- j
1 C j
i tional liberties of individuals. 3 \
[ \
|The case is important to us in that the nature of the right
i
| 14Ibid .. pp. 511-512. 15Ibid., pp. 512-514.
is established. Mr. Justice Goldberg handled the right to
travel as a personal right comparable to freedom of speech.,
ji.e., as a general right in defense of which a plaintiff
’ need not demonstrate the effects of its specific violation.
The Court has thus imposed more severely limiting criteria
j
jfor restriction than it would in due process or equal pro-
I
[tection cases. Its decision has probably also established
ionce and for all the "right to travel" with the criteria
^mentioned, defining and limiting the "class," "person," or
:"party" restriction methods used by the State Department.
Another line of cases must now be reviewed, the "area" re- I
i
striction cases. In general, the State Department has |
specified certain areas one is not free to visit and the
law has developed quite interestingly in these cases, though
inot quite in line with the personal right status accorded j
the "right to travel." j
16
In Zemel vs. Rusk the Court considered the ques
tion whether the State Department could refuse to endorse a
citizen's passport for a visit to Cuba "to satisfy my curi
osity about the state of affairs in Cuba and to be a better
informed citizen." The Court held against Mr. Zemel, and
! 16381 U.S. 1 (1962) .
50
did so in a most unenlightening manner, simply stating that
!"area" restrictions are more valid than "class" restric
tions. The holding provides no standards, only a stance, to
I
|
wit, that "area" restrictions differ from "class" restric-
|
;tions. The subsequent history of "area" restriction cases
! |
jindicates how limited it is as legal precedent.
i
17
In United States vs. Laub the Court was faced with
i
jan alleged violation of an area restriction. The defendant
j
had a valid passport but it was not specifically endorsed j
! i
jfor Cuba (as was required by the State Department). At the
time of trial the District Court granted the defendant a
: i
motion for dismissal and the government appealed. The Courtj
; j
found that the statute under which the defendants were
jcharged was not a criminal statute but in the nature of a
! "border control" statute that made it illegal to come and
go without a valid passport. Although the case as to its
holding is unimportant, it does reflect the Court's consis
tent recognition of the "right to travel" as at least a pre
ferred right, any restrictions on which in any form must be
closely scrutinized.
18
Lynd vs. Rusk arose in the United States Circuit
j
i
| 17385 U.S. 475 (1967). 18389 F2nd 940 (1967).
Court and the respondent did not appeal it. It involved the
question: if the Secretary of State has reason to believe
i
j
jthat a certain individual* if given a passport* would vio
late defined area restrictions* can the Department of State
|on such grounds withhold the individual's passport? The
i
jCourt held in favor of the applicant. The holding of the
!
i
|case is that the State Department could control their docu-
j
i !
ment* to wit* specify the areas to which it might be car
ried* but could not control the person's freedom to travel, j
[The Court said:
We think the Secretary may condition the issuance of
a passport on the applicant's agreement to refrain ;
from taking the passport into a 'restricted area* and* j
further* to lodge the passport in safekeeping before
such a trip is made . . . That a passport is an offi-
i cial document* issued under the government's seal and
j embodying a formal request* makes acceptable consid-
I erable governmental control over where and in what
ways that document is used . . . the inability to
take along a passport may inhibit some* although not
the most determined travelers to restricted zones
. . . This limited deterrence to travel resulting
from the Secretary's exercise of this power under
the 1926 Passport Act, is not unconstitutional. " * " 9
Certainly the Lynd decision seems quite useless to the gov
ernment in that it gives power to the State Department to^.,
: j
limit the travels of the passport but not those of the
19Ibid.* p. 947.
52
person. The decision is another reflection of the Court's
commitment to protection of the freedom to travel.
The "area" and "class" restrictions cited in the
jabove cases seem not only questionable but unnecessary.
^Certainly the reasons stated for restrictions— national
l
jsecurity, foreign relations, security of travelers, inter
national conflicts and foreign policy— are apparently
l
weighty, but one is still inclined to question whether the
travelers liable to be affected by such restrictions are
indeed so dangerous. It is perhaps quite possible less
restricted travel may actually alleviate some of the ten
sions with which the State Department is concerned. Cer
tainly the danger of administrative encroachment on basic
I rights in this area must far outweigh the minimal problems
(arising from the free movement of certain minor classes of
travelers .
Now that the courts have spoken, it is up to Con-
igress to honor the establishment of the newly-defined right
and to justify any further legislated restraints accord
ingly.
r
CHAPTER III
THE RIGHT TO PRIVACY
Introduction
!
j This chapter deals with the so-called right to pri-
jvacy at a public law level. I have intentionally refrained
|from discussing the private law concept of privacy as a j
itort, the concepts of libel and slander, the famous Law
Review article "The Right to Privacy,"1 or any aspect of the
private law concept, as these areas are outside the scope of
this chapter. The concept of the right to privacy is an old
lone, but only recently has it received so much judicial
l
^attention.
i
The following areas will be discussed:
1. Criminal law, particularly in the area of sexual
offenses.
2. The effects of modern technology on personal
^Samuel D. Warren and Louis D. Brandeis, "The Right
to Privacy," 4 Harvard Law Review 196 (April, 1890).
privacy.
j 3. The right to privacy as an integral part of our
constitutional structure of rights.
Seldom are basic social values left so ill-defined
I
and confused as the idea of individual privacy. Perhaps
this is due to the fact that a modern mass society has only
Irecently raised the issue in the national consciousness.
! The contrast between the conditions of modern in- i
I
i i
jdustrial society and the openness and simplicity of primi- I
I
jtive cultures tends to obscure the importance of privacy as |
; I
'an inner need throughout history. It is, moreover, a diffi-j
cult concept to define, as its manifestations are many,
while related social norms vary from one culture to another.
;Privacy may here be defined as the right of an individual,
group, or any association of persons to determine for them-
I
I
selves when, how, and to what extent information about them
selves as a group or as individuals will be communicated to
iothers . It involves not merely a voluntary or consentual
withdrawal; it is more in the nature of a limit to intrusion
upon a zone of privacy which the individual has the option
of utilizing as he sees fit. There is a constant tension
jand interplay between the individual and society as to the
jdegree of voluntary reserve in which he lives. This tension
55
is more apparent in a modern society than in primitive ones.
As a person approaches adulthood he becomes social
ized and must adopt outer roles, conventional ways of react-
i
ing as a parent, spouse, student, citizen, worker, and the
like. His basic role may be modified by his social class,
i
jfamily relationships, and many other factors outside his
|control. Man learns to play an expected role and knows he
■will be sanctioned if he fails to conform. The sanctions
I
may be imprisonment or ostracism; on the other hand, he is i
! I
lusually rewarded for conforming. Fear of social and legal
sanctions generally does promote conformity, but the psycho
logical and physical damage entailed may itself threaten
society. The statistics on mental disease, alcoholism and
|drug abuse, the crime rate, and the burgeoning of political
jextremism all attest to such damage.
Perhaps a greater area of individual privacy is
needed, the opportunity to withdraw at times from some of
the pressures responsible for such grave social ills. It
[Should be noted, however, that authoritarian personalities,
incapable of the responsibility of decision-making, seeking
rather the consolations of conformist role-playing, would
find this very privacy threatening. The wellsprings of
growth, quality, and lasting values historically require an
56
environment of privacy; its loss generally betokenr cultural
stagnation and the abridgment of freedom.
! Sidney M. Jourard, in an article entitled "Some
j 2
jPsychological Aspects of Privacy," stresses the individual
;need of the freedom privacy affords:
I
| The experience of psychotherapists and of students
! of personality growth has shown that people main-
| tain themselves in physical health and in psycho
logical and spiritual well-being when they have a
"private place," some locus that is inviolable by
others except at the person's express invitation. j
This "private place" may be a physical location,
! such as a room, a cabin, a "pad," or a monastic
! cell. It may be a place for solitude, or it may
be an ambience peopled by individuals who share
the values and ideals held by the person in ques
tion. There, he can do or be as he likes and feels.
He can utter, express, and act in ways that disclose
his being-for-himself, and he does not need to fear
external sanctions. Nor does he feel guilt for the
i discrepancy between the way he appears in public and
the way he is in private.
| As society becomes more fully urbanized and insti
tutionalized there are fewer and fewer such private
places where a person can simply be rather than be
respectable . . . A society that would endure must
draw a sharp distinction between public and private,
if for no other reason than to make it a fit society
within which people will gladly live— not just for
material benefits but for the rich experience of
existence that participation in the society affords.^
Jourard goes on to depict the constant tension between the
| ^31 Law and Contemporary Problems 307 (Spring,
11966) .
j
i ^Ibid., p. 311.
57
individual requirement of privacy and the state's tradi
tional reliance on information and the maintenance of con
formity :
i
I
! Those responsible for ruling and leading a society,
| whether self-appointed or elected, have a vested
J interest in knowing what people are thinking, feel-
i ing, and doing. Their vested interest stems from
the fact that it is only with such disclosure that
the rulers can locate and deal with unorthodox ways
j of thinking and living. Even in a democracy, the
| various agents of socialization function as repre
sentatives of the ideology of the ruling classes
| . . . Thus, parents, schoolteachers, ministers, and
| law-enforcement officers, and even public opinion in
I general, train people to behave in the ways they
I should (to keep the status quo), and they impose
sanctions upon people who deviate from expected and
approved conduct. . . . True consciousness-expansion
(education) yields a transcultural perspective from
which to view one's usual roles and the society
within which one enacts them. The person liberated
by a teacher from unquestioned compliance with roles
and unquestioned pursuit of social values may be
seen by others as a rebel or a revolutionary. As he
| reveals his expanded consciousness to others, he
runs the risk of being seen as a threat to the status
quo, whether in his family or in society at large.
Thus, authoritarian governments cannot permit psycho
therapeutic healers or teachers to pursue their work
apart from the scrutiny of commissars and informers.
Yet it is doubtful if true wholeness and full flower-
I ing of individuality is possible without the oppor
tunity for true consciousness-expansion, in privacy
or at least in safe company
And finally he describes the effects of institutional life
bn the sensitive individual.
I
^Ibid., p. 312.
Hospitals, prisons, military barracks, and live-in
schools of all kinds deprive their inhabitants of
privacy. It is in such public places that Sartre's
remark that "Hell is other people" (Jean-Paul Sartre,
No Exit 47 [Vantage Books, 1947]) takes on the most
j meaning. Authoritarian personalities, which are
! lost without external sources of control and guidance,
seek out institutions that deprive them of privacy,
because with privacy comes the awakening of freedom
and its attendant responsibilities to direct one's
own life. But for sentient, growing persons insti
tutional life is hellish.
j
i The whole process of a person's becoming a unit in
! an institution is one of divesting himself of his
! private existence. He no longer has a being-for-
: himself that has meaning or value to the institu-
| tional leaders. His thoughts, feelings, wishes, and
I beliefs are of interest to no one. . . . He has a
being-for-the-institutions; he is a "warm body," a
source of behavior that may be of use and that must
be no trouble to the institution. Beyond this, his
being has no value. In its extreme case, institu
tional existence is manifested by the totalitarian
state, or by life in society as Orwell envisioned
it for 1984 (George Orwell, 1984 [1949]), where Big
Brother could find out what people were doing any-
j where simply by flipping a switch.^
I
J
j Government's inroads on personal privacy, increas
ingly apparent and numerous as society grows more complex,
are generally justified in terms of the balancing test:
individual rights are weighed against "society's needs."
It should be evident that this seemingly reasonable cri
terion could as readily be employed to destroy as to pre
serve the fabric of a free society.
^Ibid., p. 313.
Yet even so broad a test would hardly serve to jus-
jtify certain of the laws and lower court decisions to be
I
jstudied below. In what sense is society endangered by a
j
homosexual act between two consenting adults? Or by Mr.
iCotner's acts of sodomy with his wife in the privacy of
I
itheir home in Indiana? Or by a man smoking marijuana in his
j
jhome (California makes it a misdemeanor even to be present
and not participating)? Or by an adult viewing "porno-
Igraphic" materials?
The American ideal of individual freedom is still
professed in the schools, in homes, by the government and
i |
the media, yet political processes, technology, and sheer
complexity have resulted in a constant perceptible and im
perceptible intrusion upon the private lives of all citi-
'zens .
In early nineteenth-century America the primitive
privacy afforded by vast reaches of unsettled country was
taken for granted; America's cities and towns had not yet
been transformed by the full force of the industrial revo
lution; government was not yet a ubiquitous and opaque
j I
bureaucracy encountered in every area of life. It is per-
jhaps in part the disparity between the ideals still pre-
i
jserved from such an epoch and the crushing realities of the
60
present that has recently led to such a startling increase
in crime, mental illness, and cynical political violence.
It seems reasonable to suggest that more certain guarantees
jof the right to privacy, as well as greater actual provision
jfor such privacy, might serve to eliminate some of the
I
I
jcauses of social breakdown and to mitigate the distress of
modern man.
i
| The concept of privacy is as old as man, appearing,
'for example, quite early in Genesis, where we read of Adam
I
land Eve: "And they knew they were naked; and they sewed fig
i
leaves together and made themselves aprons." Man's need of
an inner enclave and an outer guide is a cultural norm, j
evident in countless forms and at every stage of his devel
opment. Privacy is part and parcel of human dignity and an
^essential aspect of man's civility. The entire fabric of a
society is dependent on the ties and relations based on the j
i
"masks" men wear. It is no wonder that the legal concept is
so confused. The courts are asked to resolve some of so
ciety's basic conflicts, and with a limited set of facts
before them, it is quite an accomplishment that we get as
6 . ,
comprehensive a result as we do. The Griswold decision
^Griswold vs. Connecticut, 381 U.S. 479 (1964).
61
seems remarkably broad when viewed in this perspective. It
lis from various social aspects of privacy that many of our
legal concepts are derived. Man's inner self occupies a
jzone in which he supposedly is free to act as he chooses;
man's outer self must be a role-player and wear a mask and
|
relate to the remainder of society. This dichotomy is the
[basis of the legal aspects of church-state relations, free
|
speech, the right to silence a public figure, the rules of
I
libel and slander, the various privileges between physicians
i
[and patients and attorneys and clients.
7
Locke, speaking of man as having "property" of his
own person and his labor, saw his right to such as prior to j
[government. The Lockean concept of privacy underlies the
; traditional American concern for individual freedom and
[dignity. In theory, if not invariably in practice, all that
is public on the American scene is that which is delegated
to government, while all that is private belongs to the
individual, whose retained rights are legally enforceable
against the sovereign. We have attempted to articulate this
ideal in the general terms "life, liberty, and pursuit of
happiness."
I
j _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
I
J 7John Locke, Two Treatises on Government (London,
1690)........................................................
62
The Lockean view of man has not only influenced the
!American courts and legal philosophy, its force has been
pervasive in the modern Western world; in this connection
we may cite the more pertinent articles of the Universal
i . 8
Declaration of Human Rights:
Article 3
Everyone has the right to life, liberty and the
security of person.
Article 4
No one shall be held in slavery or servitude;
slavery and the slave trade shall be prohib
ited in all their forms.
Article 6
Everyone has the right to recognition everywhere
as a person before the law.
Article 12
No one shall be subjected to arbitrary interfer
ence with his privacy, family, home or correspon
dence, nor to attacks upon his honour and reputa
tion. Everyone has the right to the protection of
the law against such interference or attacks.
Article 17
1. Everyone has the right to own property alone
as well as in association with others.
2. No one shall be arbitrarily deprived of his
property.
Article 18
Everyone has the right to freedom of thought, con
science and religion; this right includes freedom
8
United Nations Document A/810 (1948) .
63
to change his religion or belief, and freedom,
either alone or in community with others and in
public or private, to manifest his religion or
belief in teaching, practice, worship and obser
vance .
| Article 19
Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold
opinions without interference and to seek, receive
and impart information and ideas through any media
and regardless of frontiers.
! The Lockean concept of individual inalienable rights
was early recognized in the property areas in the United
i
i
States. There was almost total recognition of property
rights and business privacy. We have still not arrived at
a like concern for individual rights, despite the rapid
development of protection of individual privacy at a public
ilaw level in this century. Perhaps when developing public
i
jopinion becomes clearly felt and a basic set of standards
iclearly enunciated, the present "law and order" backlash
notwithstanding, there will arise a national consensus which
will bring the courts and legislatures to further protect
ind iv idua1 pr ivacy .
The Functions of Privacy in j
! a Democratic Society
j This section is concerned with the function of in-
!
jdividual privacy in a democratic society.
64
Dictatorships rely on secrecy for the ruling groups,
full disclosure and surveillance for all groups and individ
uals outside the regime. The result., for the groups and
individuals concerned, is fear, inhibition, and imposed con-
j
jformity. Our liberal democratic tradition, on the other
I
hand, perceives the state and government as only one aspect
'of the individual's life. It should be noted that of the
j . i
two types of systems the liberal democracy is by far the |
. j
most vulnerable; our own society, for example, has come to j
[tolerate many new forms of state and corporate intrusion on
privacy. The latter development is especially alarming in
view of the decline in awareness at a popular level of thosej
'intrusions .
i Individual mental and physical health is an essen-
i
jtial requirement for a healthy society. Mental health re
quires periodic solitude and autonomy and requires access
to situations in which the individual is neither dominated,
manipulated, nor exposed to surveillance. The individual
must feel certain that his ideas and perceptions need not
and should not be revealed except as he wishes, and when and
where he chooses . This constant choice instills the inner
|habit of freedom essential to all members of a democratic
i
I
Ssociety. The interplay of reserve, disclosure, anonymity,
65
and participation is the essence of the civic and social
existence of a free man. It is from this interplay that
culturej human relationships, and political and social ac
tion arise. It is this interplay, dependent in turn on the
jindividual' s responsible use of an inward privacy, that
I
alone prevents a free society from becoming merely a mass
society made up of crowded, rootless groups of alienated
|
Ipersons, the natural audience of would-be dictators.
j We are not, it is hoped, prepared to consent to
i
i
'orderly subjugation. But we are certainly witnessing a
growing, perceptible erosion of personal privacy. The dan- |
I
; !
ger has arisen from a host of sources* for example, the j
! i
attempt to impose majority mores on increasingly independentj
: i
minorities, the eagerness to relax the law's safeguards and
|even to suspend constitutional rights as a means of dealing
with crime and terrorism, and the use of advanced methods of
!
surveillance such as data collection and storage. Should
this frighten us? Will it have an effect on our society or
constitution? Are only alarmist concerned? There is cause
for alarm. The concern being expressed at many levels of ;
society is a valid concern.
66
The Public Law of the
Right to Privacy
Background
| The legal history of the constitutional right to
i
privacy in the United States has been recent. The idea at
i
a public law level, as contrasted with an earlier interest
jin the law of torts, is first stated as a holding in the
I 9 10
Griswold case in 1964, appearing later m the Cotner case
jin 1968. The right to privacy might be considered by some
;to be a new legal concept. However, examination of the
nature of the interests being protected and their constitu
tional bearings may alter that perspective.
[
The right is a generic one and construed by courts
|
jand the writers as such. The interests involved in the con-
i
Icept of privacy may better be discussed as specifics and
j
separately rather than cast indiscriminately in a general
j
mold. Specifics such as seclusion, anonymity, privacy of
the home, interest in the privacy of association, personal
dignity, privacy of religious beliefs, privacy of marital
relations, interest in silence and many others lend
! ^Griswold vs. Connecticut, 381 U.S. 479 (1964).
t
i
10Cotner vs. Henry, 394 F2nd 873 (1968).
67
themselves more clearly to public law concepts.
A short perusal of the language of the cases reveals
a long history of specific areas of privacy protection,
i
'supported in varying terminology.
i
I
! In speaking of the specific interest of citizens in
' 11
private association, the Court says in NAACP vs. Alabama:
It is beyond debate that freedom to engage in asso-
j ciation for the advancement of beliefs and ideas is
! an inseparable aspect of the "liberty" assured by
I the due process clause of the Fourteenth Amendment
i which embraces the freedom of speech.
The Court later speaks of private interest of individuals:
I
I
We hold that the immunity from state scrutiny of
membership lists which the association claims on
behalf of its members to pursue their lawful pri
vate interests privately and to associate freely
with others in so doing as to come within the pro-
| tection of the Fourteenth Amendment. - * - 3
j
jit is interesting to note that there were no dissents in
this case.
14
In a much later case, Katz vs. United States, we
j
find the court placing no emphasis on the question of the
i
means involved in a specific violation of privacy and
stressing individual privacy. This case involved the
1]-357 U.S. 449. 12 Ibid. . p. 460.
13Ibid., p. 466. 14389 U.S. 347 (1967).
68
monitoring of a phone booth by the F.B.I. and the subsequent
arrest of the defendant.
The government's activity in electronically listen
ing to and recording the petitioner's words violated
the privacy upon which he justifiably relied while
| using the telephone booth and thus constituted a
j "search and seizure" within the meaning of the Fourth
| Amendment.^
I 16
I In See vs. City of Seattle the Court was dealing
j
with a fire inspection of the defendant's business without
;a warrant. The Supreme Court held a warrant must be issued i
I
for such inspections:
1
The businessman, like the occupant of a residence,
has a constitutional right to go about his business
free from unreasonable official entries upon his
17
private commercial property. '
' 18
| In an old case, Johnson vs. United States, the
jcourt spoke of the specific interest one has in the privacy
and seclusion of the home:
The right of officers to thrust themselves into
a home is also a grave concern, not only to the
j individual, but to the society which chooses to
dwell in reasonable security and freedom from sur
veillance. When the right of privacy must yield
to the right of search is, as a rule, to be de-
i cided by a judicial officer, not by a policeman
15Ibid. , p. 353. 16387 U.S. 541.
17Ibid.. p. 543. 18333 U.S. 10 (1947).
or government enforcement official.
69
20
In Schmerber vs. State of California, over objection of
i
the defendant, blood was taken from his body, the blood
jalcohol was determined, and the result put in evidence. The
jsupreme Court in a five to three decision allowed it. It
I
I
jhad been contended, among other things, that the police
i
jaction violated the right of privacy. The Court considered
'the contention in the following terms:
| The interest in human dignity and privacy which
the Fourth Amendment protects forbids any such in
trusion on the mere chance that desired evidence
might be obtained. In the absence of a clear in
dication that in fact such evidence will be found,
■ these fundamental human interests require law
1 officers to suffer the risk that such evidence may
disappear unless there is an immediate search.2^
;The reasoning of the Court is quite vague; apparently they
( are weighing the threat to Fourth Amendment rights against
the need to obtain evidence which may not be available at a
later date. The dissent of Mr. Justices Douglas, Black, and
iFortas is emphatic. As stated by Mr. Justice Douglas:
No clearer invasion of the right of privacy can be
imagined that forcible blood letting of the kind
involved here.22
~^Ibid. , p. 14.
^Ibid., p. 770.
20384 U.S. 757 (1966) .
22Ibid.. p. 779.
70
Though the language of the Schmerber case is ambiguous and
[the result a rather unexpected denial of a specific right to
!
privacy, to wit, the inviolability of the person, some older
!
|cases have strongly supported the right. In Union Pacific
23
Railroad vs. Botsford, an 1891 tort case, the Court said:
i
i
The right to one's person may be said to be a right
of complete immunity: to be let alone . . . No
j right is held more sacred, or is more carefully
! guarded, by common law than the right of every in
dividual to the possession and control of his own
i body . . .24
25
I In Boyd vs. United States, an 1886 case, the Court
i
spoke of privacy in definitive and strong terms:
The principles . . . affect the very essence of
constitutional liberty and security . . . They apply
| to all invasions on the part of the government and
its employees of the sanctity of a man's home and
i the privacies of life. It is not the breaking of
| his doors, the rummaging of his drawers that con-
I stitutes the essence of the offense,* but it is the
invasion of his indefeasible right of personal
security, personal liberty, and private property
. . . it is the invasion of this right which con- i
stitutes the essence of this judgment.2^
\ 27
In his dissent m Olmstead vs. United States, Mr.
Justice Brandeis wrote:
24Ibid., p. 251.
26Ibid., p. 630.
23141 U.S. 250 (1891) .
25116 U.S. 616 (1886).
27277 U.S. 438 (1927).
71
The makers of our Constitution undertook to secure
conditions favorable to the pursuit of happiness.
They recognized the significance of man's spiritual
nature, of his feelings and of his intellect. They
knew that only a part of the pain, pleasure and sat
isfactions of life are to be found in material things.
| They sought to protect Americans in their beliefs,
i their thoughts, their emotions and their sensations.
! They conferred, as against the Government, the right
to be let alone— the most comprehensive of rights and
the right most valued by civilized men. To protect
that right, every unjustifiable intrusion by the
Government upon the privacy of the individual, what-
| ever the means employed, must be deemed a violation
: of the Fourth Amendment.
i it is, of course, immaterial where the physical con
nection with the telephone wires leading into the
' defendants' premises was made. And it is also imma
terial that the intrusion was in aid of law enforce-
j ment. Experience should teach us to be most on our
guard to protect liberty when the Government's pur
poses are beneficent. Men born to freedom are natu
rally alert to repel invasion of their liberty by
evil-minded rulers. The greatest dangers to liberty
lurk in insidious encroachment by men of zeal, well-
meaning but without understanding.2®
I
i
I 29
| In Warden vs. Hayden, Mr. Justice Douglas said in
dissent:
The constitutional philosophy is, I think, clear.
The personal effects and possessions of the individ
ual (all contraband and the like excepted) are sacro
sanct from prying eyes, from the long arm of the law,
from any rummaging by police. Privacy involves the
choice of the individual to disclose or to reveal
: what he believes, what he thinks, what he possesses.
The article may be a non-descript work of art, a
28Ibid., pp. 478-479.
29387 U.S. 294 (1966).
72
manuscript of a book* a personal account book, a
diary, invoices, personal clothing, jewelry, or
I whatnot. Those who wrote the Bill of Rights be-
| lieved that every individual needs both to commu-
j nicate with others and to keep his affairs to
| himself. That dual aspect of privacy means that
| the individual should have the freedom to select
S for himself the time and circumstances when he will
j share his secrets with others and decide the extent
! of that sharing. This is his prerogative, not the
i state 1s .30
!
One could compile a list of holdings and dissents by
i
■the United States Supreme Court which would indicate a long-
| |
lestablished pattern of recognition of specific rights of
31 .
privacy at public law. But Griswold vs. Connecticut is a
I
I
landmark privacy case and one that can be built upon. i
I
I
t
j
Griswold vs. Connecticut
i
| As perhaps is true of most landmark decisions, the
I
jordinary layman has not even heard of Griswold vs. Connecti
cut, and if one were to present him with the facts, he mightj
i
i
very well agree with the Court yet not see the difficulties j
in reaching such a decision. The Griswold case, involving
las it did issues which failed to conform to the common tools
and categories of the judicial processes, is an interesting
study of innovative legal thought. The Court moved in
30Ibid.. p. 294. 31381 U.S. 479 (1964) .
73
several directions, cultivated some old ground, and plowed
some new; the case is short on substantive content but long
j
|on legal method. The facts of the case were rather simple:
!the Yale University School of Medicine was advising married
jcouples on the use of contraceptives in violation of a
jstatute making it a misdemeanor to do so. The ruling merely
istates that married couples have the right to free access to
; I
information and advice concerning contraceptives, and any j
law abridging this right is therefore unconstitutional.
Many questions are left unanswered. For example, on what
lare the defendants basing their defense? What about the
i i
manufacturej sale, use, and distribution of contraceptives? :
Such queries are left unanswered. The decision of the Court
jis lengthy and touches many points, and is rather vague,
]
inew, and unique in its rationale. Its importance lies in
its recognition of explicit constitutional protection of j
unenumerated rights. The trend toward such recognition has j
traditionally been inhibited by the "ordered liberty" ap
proach, as introduced by Mr. Justice Cardozo in Palko vs.
32
Connecticut. The United States has perhaps now reached a
stage of development at which unenumerated rights should be
32302 U.S. 319 (1937) .
74
manifesting themselves often and in varied forms, and Gris
wold may be a key case in the constitutional realization of
I
j
j t h e m .
i
! The judges took a variety of positions in this case,
|and I believe the approach of Mr. Justice Douglas and the
separate opinion of Mr. Justice Goldberg will be the most
'lasting and useful to the future of unenumerated rights .
i
l ;
Mr. Justice Harlan, in a concurring opinion, took a rather j
: j
idirect approach and said that he concurred simply on due
process, sweeping aside all the niceties of the radiations
of the Bill of Rights. Mr. Justice White concurred in a
^separate opinion based on the same conclusion, but also
struggled with ideas of equal protection and the effect of
-the specific statute involved.
In the opinion of Mr. Justice Douglas we find a new
doctrine and rationale. Instead of following Mr. Justice
Harlan, he blazed a new course by upholding the right of
privacy as a basic right underlying our whole system of
i
'freedom and liberty. He saw it manifesting itself through
-many enumerated rights, such as the right against self-
- incrimination and unlawful search and seizure and others
|found in the First and Second Amendments. The opinion thus
j
|justifies the acknowledgment of future unenumerated rights
75
implicit in the Bill of Rights. He considers privacy a
fundamental generic right manifested through many other
specific rights already established* and his method enables
ius to find many new and specific manifestations of it. His
j
[rationale is that the generic right is given substance and
i
jexpression through specific guarantees* it thus remains
I
I
j
jvirtually implicit* the sign of its presence* as of the
;light of an eclipse* being a "penumbral" area surrounding
:stated rights and containing those yet unspecified but
I
equally essential. Let us examine some excerpts from the
'opinion:
The association of people is not mentioned in the
Constitution nor in the Bill of Rights. The right
to educate a child in a school of the parents 1
| choice— whether public or private or parochial is
not mentioned. Nor is the right to study any par-
i ticular subject or any foreign language* yet the
j First Amendment has been construed to include cer-
I tain of these rights . . . without these peripheral
rights the specific rights would be less secure.^
Mr. Justice Douglas further said:
' The foregoing cases suggest that specific guaran
tees in the Bill of Rights have penumbras* formed
by emanations from those guarantees that help give
them life and substance. See Poe vs. Ullman* 367
U.S. 497* 516-522 (dissenting opinion). Various
guarantees create zones of privacy. The right of
I "^Griswold vs. Connecticut* 381 U.S. 479* 482
| (1964) .
76
association contained in the penumbra of the First
Amendment is one3 as we have seen. The Third Amend
ment in its prohibition against the quartering of
soldiers "in any house" in time of peace without the
consent of the owner is another facet of that pri
vacy. The Fourth Amendment explicitly affirms the
"right of the people to be secure in their persons,
houses, papersj and effects, against unreasonable
searches and seizures." The Fifth Amendment in its
Self-Incrimination Clause enables the citizen to
create a zone of privacy which government may not
force him to surrender to his detriment. The Ninth
Amendment provides: "The enumeration in the Consti-
! tution, of certain rights, shall not be construed to
deny or disparage others retained by the people."
| The Fourth and Fifth Amendments were described in
| Boyd vs. United States, 116 U.S. 616, 630, as pro
tection against all governmental invasions "of the
! sanctity of a man's home and the privacies of life."
We recently referred in Mapp vs. Ohio, 367 U.S. 643,
656, to the Fourth Amendment as creating a "right
to privacy, no less important than any other right
carefully and particularly reserved to the people."
1 . .. The present case, then, concerns a relation
ship lying within the zone of privacy created by
; several fundamental constitutional guarantees.
! . . . We deal with a right of privacy older than
the Bill of Rights— older than our political par
ties, older than our school system. Marriage is a
coming together for better or for worse, hopefully
enduring, and intimate to the degree of being sacred.
It is an association that promotes a way of life,
not causes; a harmony in living, not political faiths;
| a bilateral loyalty, not commercial or social proj
ects. Yet it is an association for as noble a pur-
. . 34
pose as any involved m our prior decisions.
Mr. Justice Douglas' rejection of the straight due process
approach and use of his penumbra approach has given us a
34Ibid ., pp. 484-486.
77
viable legal method of developing many other aspects of the
general right to privacy; other unenumerated rights will
i
j
jundoubtedly be defined and protected by the same means as
j
;time and circumstances demand.
| One might object that Mr. Justice Douglas' departure
|
is only a reiteration of an old approach found in Meyer vs.
35
'Nebraska. I do not wholly agree; although the concept of
'unenumerated rights can be interpreted from it, the case is j
I
actually one of substantive due process . The Douglas method!
: !
in Griswold is broader in that the right of privacy is
clearly considered a broad underlying principle manifesting
itself in many ways through enumerated rights . The Meyer ;
case is more closely akin to the line of substantive due
process cases involving economic rights and the Court just
rendered it applicable to personal rights as well as eco
nomic ones .
|
Mr. Justice Goldberg* joined by Mr. Chief Justice
Warren and Mr. Justice Brennan* wrote a separate concurring
opinion. Mr. Justice Goldberg elaborated on the Ninth
Amendment and applied it as a rule of construction. He
stated that the purpose of its inclusion in the Bill of
35262 U.S. 390 (1923).
78
Rights was to preclude the argument, interpretation, or
presumption that enumerated rights of citizens are their
|
jonly rights, and that all claims or rights not so enumerated
I
iare not rights to be assigned to the citizen, but rather are
l
j
prerogatives of the state. The Ninth Amendment was devised
jto allay fears that enumeration of specific rights might
' i
jeopardize known or unknown unenumerated substantive rights . j
It was a reminder to those interpreting the Constitution of ■
Ithe Lockean theory of individual rights prior to government,
imost of which are unstated. The early Federalists had ar
gued that since the United States government is a limited
one of delegated powers only, and since the government has
i
been granted no power to impair fundamental liberties, a j
i
!
bill of rights is unnecessary, and indeed the very addition j
!of a bill of rights might imply the delegation of powers
]
over rights not stated. James Wilson, for example, argued
in debate:
But in a government consisting of enumerated powers,
such as is proposed for the United States, a bill
.of rights would not only be unnecessary, but, in my
humble judgment, highly imprudent. In all societies,
there are many powers and rights which cannot be par
ticularly enumerated. A bill of rights annexed to a
constitution is an enumeration of the powers reserved.
If we attempt an enumeration, every thing that is not
| enumerated, is presumed to be given. The consequence
| is, that an imperfect enumeration would throw all
_ implied power into the scale of the government, and_____
79
the rights of the people would be rendered incom
plete .36
And James Madison, in his letter to Thomas Jefferson of
October 17, 1788, substantially agreed:
[T]here is great reason to fear that a positive dec
laration of some of the most essential rights could
not be obtained in the requisite latitude. I am sure
that the rights of conscience in particular, if sub
mitted to public definition would be narrowed much
more than they are likely ever to be by an assumed
power . .
The Bill of Rights as it exists may be primarily attributed i
j
to James Madison, and his reflections provide insight into j
the background of the Ninth Amendment. He was never opti- i
mistic about the effectiveness of a bill of rights as a curb
on governmental powers, and stated so in the same letter: j
!
The repeated violations of the parchment barriers
have been committed by over-bearing majorities in I
every state.38
He believed that at best the Bill of Rights might serve as
a reminder to the people of their constitutional prerogative!
to resist any state encroachment on fundamental rights. |
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ j
i
j
2 Elliot Debates 436 . !
*57 . . ^
J/The Forging of American Federalism: Selected |
Writings of James Madison, ed. by Saul Padover (New York:
Harper and Row, 1953), p. 253.
3 8lbid.. p. 255.
80
Madison indicated that he believed there were, basically,
two kinds of rights, some natural and others he called
"positive," such as the right to trial by jury. The latter
right specifically restricts the government] natural rights
|
jneither specifically restrict nor belong to the government;
jthey are rights over which the federal government had been
jdelegated no power, but above all over which no government
!
jinterference could be justified.
There is not a shadow of right in the general gov
ernment to intermeddle in religion. Its least in
terference would be a most flagrant usurpation.39
iMadison's position was well expressed in his first draft of
the Ninth Amendment:
| The exceptions here or elsewhere in the Constitu-
j tion, made in favor of particular rights, shall not
i be so construed as to diminish the just importance
j of other rights retained by the people, or as to
enlarge the powers delegated by the Constitution;
but either as actual limitations of such powers, or
as inserted merely for greater caution.^
Madison explains its purpose as follows:
It has been objected also against a bill of rights,
that, by enumerating particular exceptions to the
grant of power, it would disparage those rights
| which were not singled out, were intended to be
assigned into the hands of the General Government,
■^2 Elliot Debates 330.
^^Congressional Proceedings 452.
81
and were consequently insecure. This is one of the
most plausible arguments I have ever heard urged
against the admission of a bill of rights into this
system; but, I conceive, that it may be guarded
against. I have attempted it, as gentlemen may see
by turning to the last clause of the fourth resolu-
|lt is interesting to note that Madison's first draft refers
I
1
I
both to natural and restrictive rights; the final form was
|
jnot so specific, and only cautioned against the disparage
ment of unenumerated rights.
The enumeration in this Constitution of certain
rights shall not be construed to deny or disparage
others retained by the people.42
Mr. Justice Goldberg followed the Madison rule of
'construction closely, recognizing its significance as a
means of further expansion of specific legal protection of
junenumerated rights applicable against the states through
l
the Fourteenth Amendment. Mr. Justice Goldberg's position
on the right to privacy is not entirely clear when he cites
the possible necessity of a balancing test:
The state may prevail only upon showing a subordi
nating interest which is compelling . . . and not
sweep unnecessarily broadly.42
41Ibid., p. 456. 4 2Ibid., p. 783.
| 42Griswold vs. Connecticut, 381 U.S. 479, 497
I (1964) .
82
But his interpretation of the Ninth Amendment, as well as
the reference to penumbra of guarantees, is unambiguous:
i
I
i
I In reaching the conclusion that the right of marital
| privacy is protected as being within the penumbra of
I specific guarantees of the Bill of Rights, the Court
1 refers to the Ninth Amendment . . . I wish to add
I
these words to emphasize the relevance of that amend
ment to the court's holding.44
|
| The Ninth Amendment to the Constitution may be re-
j garded by some as a recent discovery and may be for-
| gotten by others, but since 1791 it has been a basic
■ part of our Constitution which we are sworn to up-
! hold. To hold that a right so basic and fundamental
I and so deep rooted in our society as the right of
! privacy in marriage may be infringed because that
j right is not guaranteed in so many words by the first
eight amendments to the Constitution is to ignore the
Ninth Amendment and to give it no effect whatsoever .4^
In sum, the Ninth Amendment simply lends strong sup
port to the view that the "liberty" protected by the
1 Fifth and Fourteenth Amendments from infringement by
| the Federal Government, or the states, is not re-
I stricted to rights specifically mentioned in the
| first eight amendments.4<^
I
Since unenumerated rights obviously cannot in a
viable legal method be simply those which each judge be-
llieves them to be, Goldberg attempts to provide limiting
criteria:
In determining which rights are fundamental, judges
4 4Ibid., p. 487. 4 5Ibid., p. 491.
46_Ibid. , p. 493. ___________________
83
are not left at large to decide cases in light of
their personal and private notions. Rather they
must look to the "Traditions and (collective) con
science of our people" to determine whether a prin
ciple is "so rooted (there) as to be fundamental."
Snyder vs. Mass. 291 U.S. 97, 105.47
He summarizes his holding as follows:
j In sum, I believe that the right of privacy in the
j marital relation is fundamental and basic— a personal
| right "retained by the people" within the meaning of
! the Ninth Amendment. Connecticut cannot constitu-
i tionally abridge this fundamental right, which is
protected by the Fourteenth Amendment from infringe- !
ment by the States. I agree with the Court that the j
| petitioners' convictions must therefore be reversed.48 j
i
All the affirmative opinions found a right to pri
vacy and established it as a constitutional right. Given
i
■ I
i
the methodological breakthrough and the undoubted existence ;
; |
of other unenumerated rights, it seems certain the ramifi- j
|cations of the case will extend far into the future. One is
inclined to regret the dissent by Black, who argued force
fully that the Court should adhere closely to specific pro
visions of the Constitution.
Applications of Griswold:
marital privacy
49
! In Cotner vs. Henry, Mr. Cotner has directly
4 7Ibid., p. 494.
49394 F2nd 873 (i968).
4 8Ibid., p. 499.
84
benefited from the establishment of the right of marital
privacy. He was convicted of sodomy by a plea of guilty in
|
jthe Indiana State Courts; conviction was sustained by the
!
United States District Court., but reversed by the United
States Circuit Court (7th District) on April 17, 1968. Re-
jhearing was denied May 29, 1968. Although much of the de-
j
Icision in the Circuit Court had to do with procedure, its
I
holding was that there is a right to marital privacy in
violate from criminal action by the state if private, con-
i
isentual, and without force.
I
Cotner attacks the Indiana Sodomy Statute on the
ground that it violates Article I, Sec. 12 of the
Indiana Constitution, and the Fourteenth Amendment
of the United States Constitution, because it is
vague and because, as applied, it violates his right
of privacy under the Supreme Court decision in
Griswold vs. State of Connecticut, 381 U.S. 479, 85
S.Ct. 1678, 14 L.Ed.2d 510. In Griswold the Supreme
] Court recognized a constitutional right to marital
1 privacy and held that the right is violated by the
imposition of criminal sanctions for the use of
birth control devices by married couples. The im
port of the Griswold decision is that private, con
sensual, marital relations are protected from regu-
j lation by the state through the use of a criminal
I penalty.
No appellate court in Indiana has had the opportunity
to interpret the Indiana Sodomy Statute in light of
its potential application to the privacy of married
couples. Under Griswold Indiana courts could not in
terpret the statute constitutionally as making private
consensual physical relations between married persons
a crime absent a clear showing that the state had an
interest in preventing such relations, which
outweighed the constitutional right to marital pri-
j vacy. The Indiana courts might, however, construe
i the statute as being inapplicable to married couples
or as outlawing such physical relations between mar
ried couples only when accomplished by force. Under
the latter interpretation the protection of the Gris
wold rule would not be available to Cotner if there
j was a showing of force.-^
Certiorari was denied in Cotner by the United States Supreme
I
]
jcourt in 393 U.S. 847 (1969). The Cotner decision coupled
j
with the denial of certiorari marks a long step forward in
' |
establishing the right to marital privacy as well as the j
; i
general right to privacy; it may also facilitate progress
toward protection of the right to sexual privacy between two
consenting adults regardless of their sex.
The only remaining justification for proscription of
the so-called "unnatural sex acts" is that of a compelling
|
jstate interest. It is not at all clear in what direct man
ner either marital or nonmarital sexual relations affect the
modern state interest. It may be, however, that those who j
typically overreact to homosexuality feel society itself is j
threatened, and that therefore the prosecution of such rela
tions is in fact "a compelling state interest."
I
1 We have in the Griswold decision two legal methods
gf bringing within the right to privacy any sexual act
[
j
^Ibid., pp# 876-877.
86
between consenting adults: the approach of Mr. Justice
Douglas and that of Mr. Justice Goldberg.
Given Mr. Justice Douglas' approach, sex acts be-
jtween consenting unmarried adults would be legally protected
as the exercise of still another unenumerated right within
the penumbral right of privacy. Mr. Justice Goldberg bal
ances the right to marital privacy against "a compelling
i
'state interest, " but adverts to the penumbral area of un
enumerated rights as an underlying concept. It is the au-
|
thor1s belief that we may soon witness the proscription of
all laws against privately conducted adult sexual relations,
I
whatever the form. The use of force or intimidation, of
i
course, would not fall into this category, as that of itself
l
constitutes a violation of privacy. Homosexual law is being
'questioned at the discussion level, articles are appearing
which cast doubts on our present system of dealing with the
problem, and courts are listening to arguments as to the
possible invasion of privacy.
California, however, has rejected the idea of the
unconstitutionality of the criminal rules against "unnatural
sex acts" between consenting adults. In People vs.
87
Frazier, the defendant was found guilty of sodomy with
another consenting male adult. The parties were prisoners
in a California Medical Facility in Solano County. The
I
'Court finds Griswold inapplicable, although its argument
seems questionable:
A correctional officer of the prison, conducting a
search of cells for contraband, entered the appar-
j ently unoccupied cell assigned to Frazier. A blanket
j was draped over the end and side of the bed. The
I officer lifted it, and beneath the bed saw the two
defendants, nude, engaged in an act of sodomy. No
I evidence was introduced by the defense.
! Appellant argues that his conduct is constitution-
i ally protected under the doctrine of a recent deci
sion (Griswold vs. State of Connecticut, 381 U.S.
479, 85 S.Ct. 1678, 14 L.Ed.2d 510). Although seven
justices concurred in the judgment of reversal in
Griswold, there are three concurring opinions and
two dissents. Thus the precise ground of decision
| is not clear. The majority opinion turns on the
right of privacy in the marriage relation, "an asso
ciation for as noble a purpose as any involved in
our prior decisions" (p. 486, 85 S.Ct. pg. 1682).
The concurring opinion of Justice Goldberg, joined
by two other justices, emphasizes the Ninth Amend
ment, but also turns upon protection of "the right
of marital privacy" (p. 486, 85 S.Ct. 1678) which
is "fundamental and basic" (p. 499, 85 S.Ct. 1678).
Appellant wholly fails to bring himself within the
ambit of Griswold. His relationship with his fellow
prisoner can hardly, under the most advanced views
of those who decry the current rigidity of moral
judgments, be deemed "noble" or "basic." Even if
the homosexual relationship of consenting adults
were deemed entitled to the cloak of privacy in life
^64 California Reporter 447 (1967).
88
outside prison walls, appellant cannot don that
cloak.52
Note that the latter statement implies that the prison set
ting is in fact one reason for denying protection under the
Griswold doctrine. In a homosexual case, People vs. Rob-
! 53
jerts, the Court rejected the argument that the right to
Iprivacy barred the state from prosecuting and indicated it
i
|to be a legislative question:
I "... the making of unnatural sexual relations a
! crime is embedded in the history of the common law
and finds its sanction in the broader basis of the
I
settled mores or our western civilization. There is
a considerable body of opinion that as between will
ing adults the question should be left to moral sanc
tions alone and eliminated from the criminal law.
; That however presents a legislative question and not
one for the courts ."
In support of this argument, defendant cites Robinson
j vs. State of California . . . and Griswold vs. State
! of Connecticut . . . We do not find these cases to
! 5 4
I be reasonably applicable here.
I
Applications of Griswold:
the generic right to privacy
Griswold is now the crucial and comprehensive con
stitutional case in the area of privacy. A review of the
52Ibid ., p. 447.
; ^People vs. Roberts, 64 California Reporter 74
1(1967) .
89
pattern of its use and development at a public law level
jshould provide some insight into the future of this concept
I
■of privacy.
J 55
! In Osborn vs. United States, Mr. Justice Douglas
:is joined by Mr. Justice Clark in a lengthy dissent. The
|
majority held in this jury bribing case that certain evi
dence was admissible, namely a tape recording authorized by
j
the judges of the Federal District Court, based on a request
land affidavit of an informer who alleged a direct interfer- j
■ !
ence with the administration of justice in the Federal i
Court. The dissent, based on the right to privacy, goes on
jto warn of the dangers implicit in this particular form of
invasion of privacy.
j The right of privacy does not mean one can make his
i sanctuary invasion-proof against government agents.
I The Constitution has provided a way whereby the home
can be lawfully invaded and that is with a search
warrant.56
. . . that the Fourth Amendment does not authorize
warrants to issue for any search even on a showing
of probable cause. The first clause of the Fourth
Amendment reads:
"The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated ..."
As held in Boyd vs. United States, . . . a validly
55385 U.S. 323 (1966). 56Ibid.. p. 346.
90
executed warrant does not necessarily make legal the
search and seizure.
It is not the breaking of his doors, and the rummag
ing of his drawers, that constitutes the essence of
the offence; but it is the invasion of his indefea
sible right of personal security, personal liberty,
and private property, where that right has never
been forfeited by his conviction of some public of
fence,— it is the invasion of this sacred right which
underlies and constitutes the essence of Lord Camden's
judgment. (Entick vs. Carrington, 19 How.St.Tr. 1029)
Breaking into a house and opening boxes and drawers
are circumstances of aggravation; but any forcible
and compulsory extortion of a man's own testimony,
or of his private papers to be used as evidence to
convict him of crime or to forfeit his goods, is
within the condemnation of that judgment.^
. . . this premise is expressed in the provision that
the Government can intrude upon a citizen's privacy
only pursuant to a search warrant, based upon prob
able cause, and specifically describing the objects
sought. And, the "objects" of the search must be
either instrumentalities or proceeds of the crime.
But wiretapping and electronic "bugging" invariably
involve a search for mere evidence. . . . The citizen
is completely unaware of the invasion of his privacy.
The invasion of privacy is not limited to him, but
extends to his friends and acquaintances— to anyone
who happens to talk on the telephone with the suspect
or who happens to come within the range of the elec
tronic device. Their words are also intercepted;
their privacy is also shattered. Such devices lay
down a dragnet which indiscriminately sweeps in all
conversations within its scope, without regard to the
nature of the conversations, or the participants. A
warrant authorizing such devices is no different from
the general warrants the Fourth Amendment was intended
to prohibit.
Such practices can only have a damaging effect on our
society. . . . If a man's privacy can be invaded at
5Tibid., pp.350-351.
91
will, who can say he is free? If his every word is
taken down and evaluated, or if he is afraid every
word may be, who can say he enjoys freedom of speech?
If his every association is known and recorded, if
the conversations with his associates are purloined,
who can say he enjoys freedom of association? When
! such conditions obtain, our citizens will be afraid
' to utter any but the safest and most orthodox thoughts;
| afraid to associate with any but the most acceptable
I people. Freedom as the Constitution envisages it
will have vanished.^8
59 ^
; In Roberts vs . Clement, a unanimous court held an I
I |
!"antinudist" statute unconstitutional based on vagueness, \
i
! I
but a concurring opinion defended the right to privacy as a
substantive due process right.
In determining the constitutionality of the substan
tive aspects of the statute before this Court, it
seems to me that it is necessary to come to grips
with two integral and interrelated liberties.
| 1. Does the statute transgress the minimal
| standards of substantive due process by an
I unwarranted invasion upon the right of privacy
! of those who wish to engage in the cult of
J nudism?
None of us who make it a point to keep current with j
United States Supreme Court rulings, particularly
recent ones, could have any doubt that the right of
privacy is now constitutionally protected. (Griswold
vs. State of Conn., 381 U.S. 479) ... it is appar
ent that the right of privacy is constitutionally
| protected. It is the when and how which creates the
problems .... Even a cursory scanning of Griswold
would convince a right of privacy is constitutionally
i protected. But on the other hand, even the most
5 8Ibid. . pp. 353-354.
59252 F. Supp. 835 (1966).
92
cautious and meticulous reader would be unable to
pinpoint which provision of the Constitution secures
| this right. . . . However, I am convinced that the
I operators of nudist colonies and persons engaged in
nudist practices are constitutionally entitled to
the right of privacy which is a liberty protected
by the due process clause of the 14th Amendment ren-
. . A O
dering this state statute invalid. u
I '
I In a recent grooming case, which held the control of
grooming by school officials unconstitutional, the Court
!
based its decision on the Griswold case, but also held that
denying the freedom to dress as one wishes is a violation of
substantive due process:
For the state to impair this freedom . . . would
offend a widely shared concept of human dignity,
would assault personality and individuality, and
would invade human "being" . . . it would deprive
a man or woman of liberty without due process of
law of the 14th Amendment. See Griswold, 381 U.S.
| 499-500.61
In Des Moines, Iowa, high school officials dismissed
1 I
three boys from school because they wore black arm bands in i
i
j
protest against the Vietnam war. The United States Supreme
Court held in favor of the boys; however, their decision was
based on freedom of speech and limitation of authority over
'the boys rather than on a question of grooming, although the
6 0Ibid., p. 848.
61296 F. Supp. 702, 706 (1969).
93
jdecision is broad enough to cover the latter. The Court
!said:
In our system, state-operated schools may not be
enclaves of totalitarianism. School officials do
\ not possess absolute authority over their students.
Students in school as well as out of school are
! "persons" under our Constitution. They are posses -
| sed of fundamental rights which the State must re-
j spect, just as they themselves must respect their
| obligations to the State. In our system, students
may not be regarded as closed-circuit recipients of
| only that which the State chooses to communicate.
! They may not be confined to the expression of those
sentiments that are officially approved. In the
' absence of a specific showing of constitutionally
I valid reasons to regulate their speech, students are
entitled to freedom of their views.^2
6 3
Jackson vs. Dorrier involved two boys who violated
a regulation banning hair styles of certain lengths. The
boys were dismissed from school after repeated warnings by
^school officials . The United States Circuit Court sustained
:the District Court's holding in favor of the school offi
cials .
The case was distinguished from Tinker vs. Des
64
Moines School District by the following language:
c l n
: Tinker vs. Des Moines School District, 393 U.S.
503, 511 (1969) .
63424 F2nd 213 (1970).
! 64393 U.S. 503 (1969).
94
It is contended that enforcement of the regulations
deprived the two students of freedom of speech and
expression in violation of the 1st Amendment. Nei
ther of the students testified that his hair was in
tended as an expression of any idea or point of view.
We agree with the finding of the District Court that
the record does not disclose that the conduct of
I , t
! Jackson and Barnes and the length of their hair were
| designed to be an expression of free speech. There-
S fore, Tinker vs. Des Moines School District has no
j application.^^
|
Further, the Court said:
! !
I I
It is further contended that the constitutional \
right of privacy of the students and their parents j
has been impaired in violation of the 1st, 3rd, 4th,
5th, 9th, and 14th Amendments. We find the conten-
' tion of no merit under the record of this case. In
; our opinion, Griswold vs. Connecticut, 381 U.S. 479
(1964) has no application here.^
;It is certainly difficult to see how this case was distin
guished .
5 In another grooming case, George Stevenson, et al. ,
. 6 7
vs. The Board of Education of Wheeler County, Georgia, the
|
court held against three high school students who refused to
ishave, and found:
That it was proper for school authorities to estab
lish rules and regulations in the interest of school
management and this included a hairstyle regulation.
: . . . The touchstone for sustaining such regulations
^Jackson vs. Dorrier, 424 F2nd 213, 217 (1970).
6 6Ibid.. p. 218. 67426 F2nd 1154 (1970).
95
is the demonstration that they are necessary to
alleviate interference with the educational process.
Ferrell v. Dallas Independent School System, supra,
at p. 703. That such regulations may be necessary
and, if so, that they may be promulgated and enforced,
is also clear from the tenor of Tinker v. Des Moines
Community School District, 1969, 393 U.S. 503.88
I
I
I
j The grooming cases at best are confused, but the
I
briswold doctrine is not yet prevalent in this area.
! 69 .
In a very recent case, Stanley vs. Georgia, in
j ;
which a defendant was arrested for the possession of obscenej
!
movies, the Court stated that a state statute proscribing
the possession of obscene material is unconstitutional.
Moreover in the context of this case— a prosecution
for mere possession of printed or filmed material in j
the privacy of one's home— that right takes on an
added dimension. For also fundamental is the right
! to be free, except in very limited circumstances,
| from unwanted governmental intrusions into one's
! privacy . . . (Griswold vs. Conn. 381 U.S. 479).
Griswold as a key case has established the right to
!
privacy as a constitutional right. As yet its implications i
: !
are unclear; its future use cannot be safely predicted; we j
can only note that the case is remarkable for the variety of
applications. Coupled with the Cotner decision, Griswold
I
ensures quite certain and broad protection in the area of
6 8Ibid., p. 1158. 69394 U.S. 557 (1969).
70Ibid . , pp. 564-565.
96
marital privacy. It has also been notable for dissents and
the trends they reveal. In the Schimerber case, for example,
the decision was five to four and the dissent stressed in
vasion of privacy; certainly such involuntary tests cannot
I
be tolerated much longer. The old principle of Lord Camden
I
71
in Entrick vs. Carrington is strengthened by Griswold, yet
ithe unlimited dragnet effect of the general warrant is still
with us in new forms. We may hope the Griswold doctrine
will someday be invoked in curbing this revived abuse. The
isupport Griswold gives to the concept of individual sub
stantive due process is reflected in many recent cases, j
I
j
mostly as arguments of counsel; however, the two cases citedi
herein support it directly: the nudist case and one groom-
ling case. However, other grooming cases are not so clear.
Modern Technology and the
Right to Privacy
I
Introduction
! Americans in general have yet to evidence any acute
j
concern over the growing problem of government and corporate
■invasions of privacy. Public complacency may perhaps be due
: to the fact that the newly prevalent methods and modes of
^19 Howards State Trials 1029 (1679) .
97
such invasion are for the most part indirect. Mr. Justice
I 72
Douglas, in his dissent in Osborn vs. United States,
I
jstresses the insidious nature of the present threat:
i
| We are rapidly entering the age of no privacy, where
| everyone is open to surveillance at all times; where
| there are no secrets from government. The aggressive
breaches of privacy by the Government increase by
geometric proportions. Wiretapping and "bugging" run
j rampant, without effective judicial or legislative
| control.
Secret observation booths in government offices and
closed television circuits in industry, extending
even to rest rooms, are common. Offices, conference
! rooms, hotel rooms, and even bedrooms . . . are
I "bugged" for the convenience of government. Peep
holes in men's rooms are there to catch homosexuals.
Personality tests seek to ferret out a man's inner
most thoughts on family life, religion, racial atti
tudes, national origin, politics, atheism, ideology,
sex, and the like. Federal agents are often "wired"
' so that their conversations are either recorded on
their persons . . . or transmitted to tape recorders
some blocks away. The Food and Drug Administration
: recently put a spy in a church organization. . . .
! Polygraph tests of government employees and of em-
| ployees in industry are rampant. The dossiers on
all citizens mount in number and increase in size.
Now they are being put on computers so that by press
ing one button all the miserable, the sick, the sus
pect, the unpopular, the offbeat people of the Nation
can be instantly identified.
These examples and many others demonstrate an alarm
ing trend whereby the privacy and dignity of our citi
zens is being whittled away by sometimes imperceptible
steps. Taken individually, each step may be of little
consequence. But when viewed as a whole, there begins
to emerge a society quite unlike any we have seen— a
]
I
|
! 72385 U.S. 323 (1966).
98
society in which government may intrude into the
secret regions of man's life at will.
We have here in the District of Columbia squads of
officers who work the men's rooms in public build
ings trying to get homosexuals to solicit them.
Undercover agents or "special employees" of narcotics
divisions of city, state, and federal police actively
solicit sales of narcotics. Of course, when the soli
citation by the concealed government agent goes so
far as to amount to entrapment, the prosecution fails.
Entrapment is merely a facet of a much broader prob
lem. Together with illegal searches and seizures,
coerced confessions, wiretapping, and bugging, it
represents lawless invasion of privacy. It is indie- ^
ative of a philosophy that the ends justify the means.
Once electronic surveillance, approved in Lopez vs.
United States, 373 U.S. 427, 10 L ed 2d 462, 83 S.Ct.
1381, is added to the techniques of snooping which
this sophisticated age has developed, we face the
stark reality that the walls of privacy have broken
down and all the tools of the police state are handed
over to our bureaucracy on a constitutional platter.
The Court today pays lip service to this danger in
Osborn vs. United States, but goes on to approve what
was done in the case for another reason. In Osborn,
use of the electronic device to record the fateful
conversation was approved by the two judges of the
District Court in advance of its use. But what the
Court overlooks is that the Fourth Amendment does
not authorize warrants to issue for any search even
on a showing of probable cause. The first clause of
the Fourth Amendment reads:
"The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated ..."
As held in Boyd vs. United States, 116 U.S. 616, 29
L ed 746, 6 S.Ct. 524, a validly executed warrant
^ Ibid. , pp. 341-345.
99
does not necessarily make legal an ensuing search
and seizure. "It is not the breaking of his doors,
and the rummaging of his drawers, that constitutes
the essence of the offence; but it is the invasion
of his indefeasible right of personal security, per
sonal liberty and private property, where that right
has never been forfeited by his conviction of some
public offence ..."
. . . if the barriers erected by the Fourth Amendment
were not strictly honored, serious invasions of the
Fifth Amendment might result. Encouraging a person
to talk into a concealed "bug" may not be compulsion
within the meaning of the Fifth Amendment. But al
lowing the transcript to be used as evidence against
the accused is using the force and power of the law
to make a man talk against his will, just as is the
use of a warrant to obtain a letter from the accused's
home and allowing it as evidence. "Illegitimate and
unconstitutional practices get their first footing
. . . by silent approaches and slight deviations from
legal modes of procedure." . . . The fact that the
officer could have testified to his talk with Osborn
is no answer. Then an issue of credibility between
two witnesses would be raised. But the tape record
ing carrying the two voices is testimony introduced
by compulsion and, subject to the defense that the
tape was "rigged," is well nigh conclusive proof.
I would adhere to Gouled and bar the use of all
testimonial evidence obtained by wiretapping or by
an electronic device. The dangers posed by wire
tapping and electronic surveillance strike at the
very heart of the democratic philosophy. A free
society is based on the premise that there are large
zones of privacy into which the Government may not
intrude except in unusual circumstances. As we noted
in Griswold vs. Connecticut, supra, various provi
sions of the Bill of Rights contain this aura of pri
vacy, including the First, Third, Fourth, Fifth, and
the Ninth Amendments. As respects the Fourth, this
premise is expressed in the provision that the Govern
ment can intrude upon a citizen's privacy only pursu
ant to a search warrant, based upon probable cause,
and specifically describing the objects sought. And,
the "objects" of the search must be either
100
instrumentalities or proceeds of the crime. But
wiretapping and electronic "bugging" invariably in
volve a search for mere evidence. The objects to be
"seized" cannot be particularly described; all the
suspect's conversations are intercepted. The search
is not confined to a particular time, but may go on
I for weeks or months. The citizen is completely un-
| aware of the invasion of his privacy. The invasion
| of privacy is not limited to him, but extends to his
friends and acquaintances. A warrant authorizing
such devices is no different from the general war-
74
rants the Fourth Amendment was intended to prohibit.
i
i
Mr. Justice Douglas may seem an alarmist to some,
! I
an extremist to others, but in fact he merely alludes in |
j |
I restrained terms to the very danger the framers of the con
stitution were seeking to avert.
:The constitutional issues
i
The total structure of constitutional liberty in
|America is designed in the main to protect the privacy,
jdignity, and individuality of the citizen. Yet the American
public in general, perhaps owing to its very ignorance of
freedom's opposites, seems quite unaware of the vulnera
bility of such a structure. The Supreme Court is often
■widely criticized for checking governmental intrusion upon
those areas reserved to the individual; the Court has been
severely attacked for its defense of such basic tenets as
7 4Ibid., pp. 349-354.
101
the right to free speech and freedom from unlawful search
and seizures and self-incrimination. The public fails to
discern that the loss of any one basic freedom or of any
specific exercise of such inevitably threatens the entire
constitutional structure, that while the perspective of the
|
whole is seldom reflected in the specific issue involved, it
: is always a fundamental and unstated premise that the Court
iis defending when it reaches so-called "controversial"
^decisions .
| The Court is simply carrying out an essential part
;of the constitutional scheme, which was and is the effort to
limit official surveillance over men's thoughts, associa
tions, private acts, and confidential communication. The
history of man has been a search for individual liberty and
I
l
ipersonal and group privacy, a struggle against the incur
sions of kings, aristocrats, presidents, legislatures,
churches, manor lords, corporations, sheriffs, welfare in
vestigators, and political police, all of whom have played
a part in diminishing individual liberty. The public is now
!
faced with data banks, computers, secret dossiers and eaves
droppers; the threat is largely unseen, impersonal, and
Indistinct, and therefore scarcely recognized. The consti
tutional protections established by the framers were quite
j 102
adequate for their times. When torture and pressure by in-
jquisition were the main means of penetrating the mind, a
simple proscription against self-incrimination was suffi
cient; when physical entry and crude means of eavesdropping
i
:Were the only means of penetrating private homes and private
i
I
[gatherings, the Fourth Amendment rule against unlawful
l
I
isearch and seizure sufficed. Now that modern courts must
|
iattempt to apply these safeguards against unforeseen means j
i i
jof "search and seizure" and eliciting "self-incrimination,"
i
the public considers their decisions controversial.
The layman in effect asks: What objection can an
innocent person have to a policeman monitoring his conver
sation? Why should a truthful person care about a polygraph
itest? What is wrong with personality testing? What is
j
!
wrong with information being available in a central data
bank? The answers to these queries are manifold. Of funda-i
mental concern is the total effect of such erosions of
privacy on human behavior and the resultant transmutations
;in the nature of a society. Any surveillance, control, or
restriction imposed on an individual has an effect, and it
i
is an inhibiting effect. The inhibited person tends to
attempt to please the viewer or at least to meet a safe
social norm. The prevalence of such inhibition tends to
103
stifle individuality and to discourage acts which may be
"revolutionary" or eccentric but which may also be creative
and valuable to a society. A society made up of members
i
I
tendered malleable by constant exposure and pressure would
be the dreaded, manipulable "mass society." A specific
j
jdanger relative to data banks is also the risk of misinfor-
i
'mation. Decisions can easily be made on the basis of such
'information without the individual's knowledge that the data
I
bank was used or that it contained misinformation. The
i
i
^errors made in credit checking and review of criminal rec
ords are well known and more than occasional.
But the basic answers to the layman's objections arei
those founded on the essentials of constitutional protec-
i
tions. Is there any essential difference between monitoring
bf phone conversations and such eighteenth-century practices
as concealment of police in private homes to take informa
tion? Is there any fundamental difference between the ac
quisition of personal information from a data bank and a
"search and seizure" in one's home? Is the ban against
i -
self-incrimination less violated when information taken by
a census taker a few years prior to a trial is used to con
vict one than if the same information were taken by torture?
I
I
j
The right of confrontation of witnesses is no less seriously
104
threatened by resort to a computer's memory than by secret
testimony. The right of counsel is constantly in jeopardy
as long as information is being indiscriminately gathered*
sold* transferred* and adjudged without legal provision for
jindividual recourse.
The courts have responded favorably to recent un~
iprecedented demands* but are limited in that their action
jinvariably provokes a wide public reaction. The immediate
land future dangers and the constitutional bearings of the
j
Inew developments escape the public* and most legislators*
unfortunately* are bound to their constituencies. There are
very few states that have barred or limited the use of poly-
l
graphs; a very small number have any effective wiretapping-
|eavesdropping statutes. Most of the states that have pro-
i
j
scribed wiretapping do not enforce the ban* one of the
reasons being that the violators are usually state officers.
California is a good example: as early as 1872* California
l
proscribed wiretapping in Penal Code section 640* yet there
l
has not been a single case involving a public official; the
present Penal Code section 633 excepts all police and law
enforcement officers* and thus enforcement is as lax as I
j ’
lever.
|
i In the past courts have been resorted to as the
105
principal governmental body for the protection of privacy,
and undoubtedly will continue to serve in the future. The
protection of the law in this area has been flexible and
broad. The following headings from West's General Index to
the 4th Series Digest under the heading "Privacy," from A to
I, indicate the variety of cases:
I
!
| Area accessible to public, constitutional protection
I Arrest, invasion
1 Arrest records, retention after dismissal, violation
! of right
j Deprivation of right, televising photographs
S Discovery, interference with right of
Due process of law, Constitutional right of privacy
j Eavesdropping— Court order authorizing, challenging
j evidence resulting from
| Without lawful sanction, constitutionality
; Eavesdropping by trespass as invasion—
i Constitutional protection
Enclave to lead private life, right to
| Exotic dancer, invasion as tort--
[ Damage, 91 (1, 3)
I Torts, 27
j Family Expense Act—
! Interference: with family, affairs,—
Fingerprinting defendants charged with Sherman Act
violations
Freedom from partisan political propaganda, right of
privacy application
| Freedom to associate and privacy in one's associa-
! tions, constitutional limitations upon govern
mental abridge
Governmental intrusion, unconsented peacetime quarter
ing of soldiers
Hotel guests, search after expiration of checkout
time: without making advance payment of room
rental
Invasion—
Magazine article, reconstructing murder
106
Notifying judgment debtor's employer of judgment
Prisoners, censoring letters and packages
Invasion, fictionalized biography
Perhaps through the "coordinated" though frequently
conflicting efforts of the three branches of government, the
jconstitutional safeguards of individual privacy can be ren
dered applicable within the framework of modern society.
i
|The danger is great; let us hope the system can meet the
j
challenge.
i
Proposed solutions
No one aware of the implications of the present uses
of advanced surveillance technology in the United States
would deny that warnings and clear action are needed. Yet
|for the most part both the private and the governmental re-
i
l
sponses have been inadequate. As noted above, due to the
I
yague, unobtrusive, and impersonal nature of the latest and
most refined means of electronic surveillance and data col
lection, the public has remained for the most part oblivious
of implicit dangers; legislation in the area has conse-
I
quently been defective. Most proposed solutions are either
i
ethical guidelines, hardly calculated to impress those in-
!
;terests and authorities responsible for the present abuses,
I
or practical recommendations that are not now being
107
implemented and may not be for some time.
I Let us examine some of the recently suggested means
of control.
75
Oscar M. Ruebhausen and Orville G. Brill, Jr. have
bffered seven suggestions, which they entitle "Principles of
|
Research."
1. There should be a recognition, and an affirma-
|
ftion, of the claim to private personality.
I 2. There should be a positive commitment to respect
I
private personality in the conduct of research.
I
I
3. To the fullest extent possible, without preju
dicing the validity of the research, the informed and volun
tary consent of the respondents should be obtained.
i
| 4. If consent is impossible without invalidating
the research, then before the research is undertaken, the
i
responsible officials of the institutions financing, admin-
i
istering, and sponsoring the research should be satisfied j
I
that the social good in the proposed research outweighs the
i
social value of the claim to privacy under the specific con
ditions of the proposed invasion. These officials in turn
are responsible, and must be responsive, to the views of the
75
Privacy and Research," 65 Columbia Law Review
1184 (Fall, 1965) .
108
larger community in which science and research must work,
i 5. The identification of the individual respondent
should be divorced as fully and as effectively as possible
from the data furnished. Anonymity of the respondent to a
behavioral research study, as far as possible, should be
i
sought actively in the design and execution of the study as
a fundamental characteristic of good research.
i
i
; 6 . The research data should be safeguarded in every
.feasible and reasonable way, and the identification of in-
!
i
dividual respondents with any portion of the data should be
destroyed as soon as possible, consistent with the research
objectives.
7. The research data obtained for one purpose
'should not thereafter be used for another without the con-
i
sent of the individual involved or a clear and responsible
assessment that the public interest in the newly proposed
use of the data transcends any inherent privacy transgres-
76
sion.
It is interesting to note that the authors direct a
caveat to the scientific community.
Neither these seven suggested principles, nor any
j other set, will resolve, nor should be expected to
^ Ibid., p. 1210.
109
resolve, the productive tension between the needs
and advancement of science and the vibrant diversity
of human personality. If it is correct, however,
that there has been a growing imbalance in the rela
tion of science and research to the values of pri
vacy, then either the dignity, diversity and strength
i of the individual in our free democratic society will
j be diminished, or society will correct the balance.
I If the balance is to be corrected— as it will and must
be— the lead should be taken by the scientific commu
nity through its own codes, its own attitudes, and
its own behavior.77
j
| Unfortunately the high standards of professional
i
^communities are not generally operative in the world of
j
politics and public office.
I Minimal safeguards for a data bank should include
the provisions that the stored information should not be
individualizedj should not be linked to individuals by name;
and that information on a given subject should be taken only
i
!in size samples to fit the statistical standard. In addi
tion to these input safeguards, output safeguards would in
clude a ban on any individualized output. A system of
Checks and recording of output could be set up with adequate
penalties for its violation. Undoubtedly, if properly
handled, this kind of statistical data bank could be con-
i
trolled so that the threat to anonymity would be minimal.
Yet there is always a possibility that a transition stage to
77Ibid., p. 1211.
110
individualization may take place; individual identification
may in certain cases prove requisite to proper programming.
78
Alan F. Westin in Privacy and Freedom suggests
means of control and attempts to strike a workable balance
i
I
between the right to individual privacy and the need for
data. He concedes that legislation is essential but main
tains that control must be exerted from several sources in
a pattern and be adhered to in a manifold manner at a pub-
jlic, private, and individual level. In his scheme the role
I
jof private, individual forces is central; public opinion,
'for example, would play an important part in curbing govern
ment officials. He suggests that the scientific community
could be called upon to develop scientific safeguards. He
;speaks of organizational restraints, such as codes of eth-
!
|ics, citing the care with which the American Psychologists
and Psychiatrists have so well protected the anonymity of
individuals.
We are again justified in asking whether it is real
istic to anticipate that the voluntary restraint typical of
professional organizations can ever be ensured in the areas
l
of government and politics. As for the impact of public
1
i
I 78
New York: Atheneum Press, 1967.
Ill
opinion, we must note that in the present area of police
powers the public has encouraged and applauded rather than
checked the government's recklessness.
Westin realizes the main practically effective con
trols will be those supplied by legislation.
But ethical and professional commandments will not
| always be sufficient to control the conduct of crim-
| inal elements, over-zealous government officials,
! profit-seekers, or insensitive researchers. At this
I point, governmental action serves to create clear
boundary lines of permissible and forbidden conduct
! and to put fresh moral force behind enforcement of
j the newly fashioned rules.^
He recommends the following legislation to protect govern
mental employees from invasions of privacy.
First, the legislature would declare the general
right of public employees to be free from unreason-
i able invasions of privacy. All government officials
j would be charged to conduct their personnel policies
j accordingly. This approach would provide a broad
standard in the tradition of the common-law right
to privacy or the quasi-constitutional approach of
anti-trust and regulatory-agency legislation. . . .
Second, the statute should forbid the use of certain
techniques of psychological surveillance, such as
■ polygraph examinations and personality tests.
> Third, the statute could create an independent agency
• (somewhat along the lines of the Scandinavian Ombuds-
| man) which would be charged with the responsibility
of protesting the rights to privacy in the employment
| relationship
^ Ibid., p. 384. 80Ibid.. p. 385.
112
As to data banks:
The effective use of computers calls for rational
analysis and painstaking planning. If privacy is
to survive, the growth of personal-data processing
will necessitate the same high levels of analysis
and planning by federal and state legislatures seek
ing to use computers for large-scale data processing.
. . . Provisions for confidentiality of information,
restrictions on improper circulation, and sanctions
against unauthorized use should be written into the
basic legislation and administrative rules governing
the new law enforcement computer systems.
Similar legislative action is desirable for the gov
ernment data centers that are rapidly coming into
operation at both state and federal levels. The
statute could provide that such information must be
kept by the agency that collected it and can not be
revealed to another government agency or to a private
party unless certain conditions are met— national
security or defense needs; general permission in ad
vance from those supplying the information to circu
late it freely; specific permission from the supplier
for a particular use of the information to be made;
and so forth . . .
The difficulty with the Freedom of Information Act
and its state counterparts, however, is that it seems
to appoint the government the necessary champion of
the citizen's right to privacy. There is no mechanism
in these acts by which an individual can challenge in
court the willing release by a government agency to
the public or to another agency of personal data col
lected from the individual.®^-
He then goes on to deal with physical surveillance:
Physical Surveillance: Guidelines for New Wire
tapping-Eavesdropping Statutes. The problem that
cries out for legislation most acutely is that of
81Ibid., pp. 386-387.
113
wiretapping, electronic eavesdropping, and optical
surveillance. Appeals to the Supreme Court to enter
and cut the Gordian knot have been in vain; the
Court obviously feels that it can do no more with
the ambiguous language of section 605 and has almost
pleaded for congressional clarification. Most states
are also looking to Congress to take the lead.8^
The discussion below covers possible federal and
state statutes to control physical-surveillance de
vices and vest a limited power in certain public
agencies to conduct electronic surveillance. Each
statute would contain four basic elements: prohibi
tions against unreasonable surveillance by techno
logical devices; exceptions for legitimate private
use of surveillance devices; a system of court-
controlled use by law-enforcement officials in lim- j
ited cases; and assorted remedies providing for pri
vate and public enforcement of the statutory limita
tions .
a. The federal statute. The federal statute on
unreasonable physical surveillance by devices should
open with three prohibitions followed, in the next
section, by a list of exceptions. First, the statute
should protect telephone communication (for which the
federal government has basic regulatory responsibil
ity) by making it unlawful for any person, including
state or federal officials, to use a device as a
means of listening to or recording conversations on
a commercial, governmental, or private telephone sys
tem without the knowledge and consent of all partici
pants to the conversations. The statute should define
the term "device" to cover all known means of tele
phone tapping and monitoring and should provide a
definition of free consent that could be given judi
cial clarification in particular situations. Second,
federal jurisdiction over radio frequencies and their
use would support a provision forbidding any person
to use radio transmitters for eavesdropping. The
third prohibition would make it unlawful for any fed
eral official or his agent to use a device to observe,
overhear, or record— without the subject's knowledge
82Ibid., p. 388.
114
and consent— the location, speech, or acts of any
person who is in a private place or engaged in a
private conversation or activity in a public place.
Congress should also consider a provision controlling
state and private use of surveillance devices other
than those which monitor telephone conversations or
i rely on radio transmission of conversation; this would
| cover the common use of microphone and recording de-
i vices which operate on standard electric current,
batteries, or transistors. Unlike telephone or radio
surveillance, these activities lack the requisite
interstate character to base federal authority on the
commerce clause. However, it can be argued that con
gressional power arises under Section 5 of the Four-
| teenth Amendment, which empowers Congress to enforce
the citizen's constitutional rights to life, liberty,
| and property through positive legislation. Under
| this theory, Congress would regulate state and pri-
| vate interference with the constitutional right to
| freedom from unreasonable invasions of privacy . . .
While precise definition of these terms might best
i be left to judicial elaboration, the language sug-
| gested here recognizes that people seek, and society
| has an interest in protecting, certain important
moments of privacy in places that our law regards as
"public" or "open" areas— streets, park benches,
| hotel lobbies, restaurant tables. ^
|
| His recommendations on state statutes are similar.
The above proposals, though timely and necessary,
leave many questions unanswered. Perhaps the major problem
i
jwill be one of arousing public concern during the present
j
period of reaction and social tension: we have already wit
nessed a growing public preference for the kind of security
afforded by repressive authority, and as long as this "law
83Ibid., pp. 388-389.
115
and order" trend continues the type of legislation proposed
l
Jay Westin is hardly likely to materialize. Given the den-
jsity, the tens ion, the alarming inner and external uniform-
|ity of our present society, its pervasive materialism and
l
rootlessness, it was perhaps only inevitable that at some
point many would turn to authoritarian leaders and welcome
!
itheir methods .
I
! Westin, though generally optimistic, seems also to
jfeel that time is running out:
]
j
As these discussions of private and governmental
remedies have indicated, American society now seems
ready to face the impact of science on privacy.
Failure to do so would be to leave the foundations
; of our free society in peril.
The problem is not just an American one. Our sci-
j ence and our social development have made us the
first modern nation to undergo the crisis of sur-
: veillance technology, but the other nations of the
; West are not far behind. In Britain, France, and
! Italy, in West Germany, Poland, and the Soviet
Union, even in Ghana and Vietnam, the little listen
ing and watching devices have made their appearance
and the walls are beginning to dissolve. Throughout
the West the computer networks grow, collecting their
, millions of bits of data, depositing the smallest
details of our lives into the unforgetting memory
units. Sometimes in the name of Man and sometimes
in that of Society, scientists throughout the West
are at work to unlock men's minds through drug and
brain-wave research.
The setting— the marvels of microminiaturization and
circuitry, chemical synthesis and projective psychia
try— is new. But the choices are as old as man's
history on the planet. Will the tools be used for
man's liberation or his subjugation? In the density.
116
complexity, and tight inter-relation of twentieth-
century life, can we preserve the opportunities for
privacy without which our whole system of civil
liberties may become formalistic ritual? Science
and privacy: together they constitute twin condi
tions of freedom in the twentieth century.
Perhaps an anonymous sage has stated it best: "A
computer has a perfect memory and since it does not forget,
it may not forgive."
84Ibid.. p. 399
CHAPTER IV
THE RIGHT TO CITIZENSHIP
Expatriation which includes loss of citizenship is
[ a recently manifested part of the problem of the reluctance
i
i
[of the United States government to treat nationality prob
lems . It was not until 1907 that the United States had any
j
general enactment governing the substance and procedure of
i
expatriation. This is not to say there were no rules or
procedures, as the United States had concluded many treaties
and agreements with other nations . There was also a mass of
i
j
[legal cases in this field, albeit hesitant and uncertain in
[content. This uncertainty is with us to a great degree even
now.
There are many reasons for this failure to deal with
this important subject. Under the system of feudalism, a
Citizen could not in any way sever his allegiance to his
place of birth, and this concept persists in both English
and American legal philosophy. The development of the
United States also has contributed to a certain ambiguity in
citizenship law, since many emigrant settlers considered
!
themselves loyalist citizens of England and other countries.
Furthermore, a schism developed early between the national
l
'and the state governments, especially as to whether national
i
I
jcitizenship could be granted from any other entity than the
state government. Additional complications were raised by
I
|the citizenship status of the negro. There was debate as to
jwhether a citizen had an absolute right of expatriation, if
he wished it as one of his inalienable human rights. The
implicit belief in such a right naturally flourished in a
nation newly populated by immigrants, and Jefferson himself j
j
!defended the concept.
I
I Prior to 1907 expatriation was handled and defined
i
Ifor the most part through treaties, acts of Congress, court
actions, and non-statutory actions of the Department of
State. An act of Congress'*' in 1868 reflected two ideas, one
merely recognizing naturalization in a foreign state as
effecting the loss of citizenship, and the other granting
;the right of expatriation. 1868 is one of the most impor
tant early dates relating to citizenship, as it was the year
1
-*-8 United States Code § 1481.
119
the Fourteenth Amendment was approved. The pertinent sec-
.tion, of course, deals specifically with the common right of
1
jcitizenship, not with the question of its loss :
i
I All persons born or naturalized in the United States,
| and subject to the jurisdiction thereof, are citizens
of the United States and of the state wherein they
reside
This statute declared the right of an individual to ex-
j
patriation an inalienable right, but it gave no guidelines
as to how such expatriation was to be accomplished. Its
general interpretation was that a citizen might abandon his
citizenship if he so desired, and that under certain condi
tions the abandonment might be involuntary. :
3
! The first comprehensive expatriation act, passed in
11907, was largely a codification of prior executive and ad-
i
]
ministrative interpretations and practices . It not only
i
sanctioned voluntary expatriation and codified former pro
cedures, it specified situations in which citizenship could
be lost involuntarily, thus paving the way for much subse
quent abuse. Expatriation has since been imposed as a judi
cial penalty and on other questionable grounds, with the
! j
result that minor and innocent acts have frequently
^Ibid. % united States Code § 17.
120
occasioned loss of citizenship. On the other hand, the con
stitutional basis of the power of Congress to write de
nationalizing acts was clearly upheld by Mr. Justice
McKenna:
I Plaintiff contends . . . an absence of express power,
j But there may be powers implied, necessary or inci
dental to the expressed powers. As a government, the
United States is invested with all the attributes of
! sovereignty. As it has the character of nationality,
i it has the powers of nationality, especially those
t which concern its relations and intercourse with other
i countries
I
|
Thus the power is based on an implied and inherent and nec
essary power of sovereignty. The case also established that
the legislation, itself a reasonable exercise of government
power, was required for the purpose of averting embarrass
ments and controversies in the conduct of foreign affairs,
i Between 1907 and 1958 innumerable harsh and unjust
decisions were handed down. A hard line was taken in the
Supreme Court cases, and the judicial interpretation of
legislation remained stringent.
i
The courts' increasing concern appears in the lan
guage of cases in the early 1950's. In two early companion
4Mackenzie vs. Hare, 239 U.S. 299, 311 (1915).
121
5 6
cases, Murata vs. Acheson and Okimura vs. Acheson, the
jFederal District Court held that voting in a foreign elec
tion or serving in a foreign army does not result in ex
patriation, because the statute proscribing such conduct was
i
lunconstitutional. The court's basic conclusion was summed
jup as follows in the Okimura case:
l
I
| Congress has been given control over only one means
i of creating United States citizenship, namely, by
! naturalization. It has the power to create and to
; condition that grant of citizenship; but it is wholly
! devoid of any power to destroy citizenship by birth.'
i
|The opinions in these historic and stormy cases were com
paratively sweeping in their language, in that they rested j
i
entirely on a finding of unconstitutional exercise of power }
;by Congress, whereas subsequent cases become more compli-
i
‘ cated.
i In 1958, as the Supreme Court began to address the
issue of expatriation, the Justices moved toward the dis
tinct legal and philosophical positions which were
99 F. Supp. 591 (1951) Vacated Per Curiam 342 U.S.
900 (1952) and on remand the District Court upheld the
claims of U.S. citizenship, 111 F. Supp. 303 (1953).
! !
^99 F. Supp. 587 (1951) Vacated Per Curiam 342 U.S.
889 (1952) and on remand the District Court upheld the claim
;of U.S. citizenship, 111 F. Supp. 306 (1953).
122
maintained throughout subsequent cases. The relevant cases
of that year were Perez vs. Brownell, 356 U.S. 44 (1958);
Trop vs. Dulles, 356 U.S. 86 (1958); and Nishikawa vs.
Dulles, 356 U.S. 129 (1958).
i
In the Perez case a United States citizen by birth
went to Mexico and, among other things, voted in an elec
tion; this became the legal ground for his subsequent ex-
| 8
patriation under the Nationality Act of 1940. In a five
|to four decision the power of Congress to destroy citizen-
iship by birth was held to be constitutional and justified as
lying within the scope of the authority of Congress to man-
;age foreign affairs. The Court stressed, however, that be
tween the denial of citizenship and the regulation of for
eign affairs there must be a "reasonable nexus." The
i
majority held there was in this case. Of particular inter
est was the dissent, as it became the law a decade later.
The dissent of Mr. Chief Justice Warren is aimed at the in
discriminate and effectively conclusive presumption that
i
voting in a foreign election is an abandonment of citizen
ship .
In specifying that any act of voting in a foreign
political election results in a loss of citizenship,
®54 Statutes at Large 1169.
123
Congress has employed a classification so broad that
it encompasses conduct that fails to show a volun
tary abandonment of American citizenship.
My conclusions are as follows: The Government is
without power to take citizenship away from a native-
born or lawfully naturalized . . . American. The
Fourteenth Amendment recognizes that this priceless
right is immune from the exercise of governmental
| powers. If the Government determines that certain
i conduct by United States citizens should be prohibited
| because of anticipated injurious consequences to the
I conduct of foreign affairs or to some other legiti-
j mate governmental interest, it may within the limits
; of the Constitution proscribe such activity and j
assess appropriate punishment. But every exercise |
of governmental power must find its source in the !
I Constitution. The power to denationalize is not
| within the letter or the spirit of the powers with
which our Government was endowed. The citizen may
elect to renounce his citizenship and under some cir
cumstances he may be found to have abandoned his
| status by voluntarily performing acts that compromise
his undivided allegiance to his country. The mere
| act of voting in a foreign election, however, without
regard to the cirexamstances attending the participa-
| tion, is not sufficient to show a voluntary abandon-
! ment of citizenship.^
!
! Mr. Justice Douglas advanced a similar argument, going on to
warn against the use of expatriation as a punishment.
In Trop vs. Dulles'^ a young serviceman was con
victed of desertion by a general court martial and dishonor-
jably discharged. Under the 1940 Nationality Act^'*’ his
^Perez vs. Brownell, 356 U.S. 44, 76 (1958).
10356 U.S. 88 (1958) .
■ * ■ ■ * ■ 5 4 Statutes at Large 1169.
124
conviction resulted in loss of citizenship. In this case
ithe Court, in a five to four decision, held the section to
i
[be unconstitutional. Warren distinguished between the types
|
;of issues involved in this and in the Perez case:
I
| Since a majority of the Court concluded in Perez v.
! Brownell that citizenship may be divested in the
| exercise of some governmental power, I deem it
j appropriate to state additionally why the action
| taken in this case exceeds constitutional limits,
| even under the majority's decision in Perez. The
Court concluded in Perez that citizenship could be
I divested in the exercise of the foreign affairs
power. In this case, it is urged that the war power
is adequate to support the divestment of citizenship,
i But there is a vital difference between the two
1 statutes that purport to implement these powers by
decreeing loss of citizenship. The statute in Perez
decreed loss of citizenship— so the majority con
cluded— to eliminate those international problems
that were thought to arise by reason of a citizen's
having voted in a foreign election. The statute in
this case, however, is entirely different. Section
| 401 (g) decrees loss of citizenship for those found
guilty of the crime of desertion . . . The constitu-
; tional question here is whether 401 (g) . . . is in-
| flicted as a punishment.-^
The majority added:
The use of denaturalization as a punishment is barred
by the 8th Amendment . . . it is a punishment more
; primitive than torture, for it destroys for the in
dividual the political existence that was for centu
ries in the development.-*-^
-*-^Trop vs. Dulles, 356 U.S. 8 6, 93 (1958).
- * - ~ ^ Ibid., p. 1 0 1.
125
Mr. Justice Brennan, the "swing" voter in the two cases,
wrote a separate concurring opinion in order to clarify his
i
position. He argues that the two cases basically differ
I
because there is a reasonable relation between the power and
j
the means in one but not in the other: expatriation for the
jact of voting in a foreign election is at least a reasonable
lexercise of the foreign affairs power, whereas the use of
i
expatriation to penalize desertion is neither a useful nor
ja necessary exercise of the war powers. And he later said:
I
The requisite rational relation between this statute
I and the war does not appear— for in this relation
the statute is not "really calculated to effect any
of the objects entrusted to the government" . . .
McCullough vs. Md., 4 Wheaton 315 (423) and therefore
401 (g) falls beyond the domain of Congress . • * ' 4
The last case decided that day was Mitsugi Nishikawa vs.
i
! 15
Dulles. The defendant, an American-born citizen and a
graduate engineer of the University of California, moved to
Japan in 1939 and during the war was forced to serve in the
Japanese Army. At the lower court level he was found to
have voluntarily expatriated himself, and thus lost his
citizenship. The Supreme Court reversed. The decision
stressed the requirement as a condition of expatriation of
14Ibid.. p. 114. 15356 U.S. 138 (1958)
126
unquestionable proof that a defendant had indeed knowingly
chosen to relinquish citizenship, and held that no conduct
results in expatriation unless engaged in voluntarily. In
a concurring opinion, Mr. Justice Frankfurter and Mr. Jus-
I
'tice Burton firmly assign the burden of such proof to the
government:
; That where an individual engages in conduct by
command of a penal statute of another country to
whose laws he is subject, the gravest doubt is cast
i on the applicability of the normal assumption . . .
S that a person does what he does of his free will.
! . .. The government should under the circumstances
\ of this case have the burden of proving by clear,
convincing and unequivocal evidence that the citi
zen voluntarily performed an act causing expatria-
' tion.16
! Thus by 1958 the exercise of the Congressional power
;to require expatriation had been effectively challenged.
iThe Court sustained its position by a case-to-case approval
17 . .
until the comprehensive Afroyim vs. Rusk decision of 1967.
18
In Kennedy vs. Mendosa-Martinez, the Court struck
down Federal statutes providing for loss of citizenship for
draft evaders leaving the country. The Court held that the
Fourteenth Amendment guarantee of citizenship and
1 6Ibid.. pp. 141-142.
18372 U.S. 144 (1963).
17387 U.S. 253 (1967) .
Congressional war powers were not necessarily irreconcil
able. The statutes as written were essentially penal and
failed to provide proper safeguards in accordance with the
due process clause of the Fifth Amendment and the require-
i
ments of the Sixth Amendment.
19
The next year in Schneider vs. Rusk the Court
ruled on a statute providing for expatriation of naturalized
i
l
citizens who return to the country of origin for a period of
j i
more than three years. A five to four decision pronounced j
|the statute an unconstitutional discrimination between a
natural-born citizen and a naturalized one. The holding,
though based on a familiar principle of expatriation, exem
plified the new tendency of the Court.
' The major decision after 1958 was handed down in
20 .
jAfroyim vs. Rusk m 1967. It dealt with the Congressional
power of expatriation and the constitutional right to citi
zenship. Of possible importance in the future may be the
fact that Afroyim was a naturalized citizen.
21
The case discussed Perez vs . Brownell, and over
ruled it. The facts were that Afroyim, a Polish citizen,
emigrated to America and became a naturalized citizen in
1 _______________________
I
| 19377 U.S. 163 (1964). 20387 U.S. 253 (1967).
| 21356 U.S. 44 (1958) .
r
128
jl925. Later he went to live in Israel* voted in an Israeli
election in 1960 and was declared expatriated in compliance
with the Federal Code. The Supreme Court overruled the
lower courts and held the statute unconstitutional. The
Court stated:
We reject the idea expressed in Perez that* aside
I from the 14th Amendment* Congress has any general
I power* express or implied* to take away an American
! citizen's citizenship without his assent.^
jThe Court goes on to the issue of the naturalized citizen*
i
i
directly citing Mr. Chief Justice Marshall in Osborn vs.
i
Bank of the United States :
The [naturalized citizen] becomes a member of the
society* possessing all the rights of a native citi
zen and standing* in view of the Constitution* on
the footing of a native. The Constitution does not
authorize Congress to enlarge or abridge these rights.
| The simple power of the national legislature is to
i prescribe a uniform rule of naturalization* and the
exercise of this power exhausts it.23
And finally this summation presents the Court's rationale in
the broadest possible terms:
Because the legislative history of the Fourteenth
Amendment and of the expatriation proposals which
| preceded and followed it* like most other legisla
tive history* contains many statements from which
22387 U.S. 253* 257 (1967).
239 Wheaton 738* 827 (1825).
129
conflicting inferences can be drawn, our holding
might be unwarranted if it rested entirely or prin
cipally upon that legislative history. But it does
not. Our holding we think is the only one that can
stand in view of the language and the purpose of the
Fourteenth Amendment, and our construction of that
Amendment, we believe, comports more nearly than
I Perez with the principles of liberty and equal jus-
j tice to all that the entire Fourteenth Amendment was
| adopted to guarantee. Citizenship is no light trifle
j to be jeopardized any moment Congress decides to do
| so under the name of one of its general or implied
i grants of power. In some instances, loss of citizen-
| ship can mean that a man is left without the protec-
I tion of citizenship in any country in the world— as
, a man without a country. Citizenship in this Nation
j is a part of a cooperative affair. Its citizenry is
| the country and the country is its citizenry. The
I very nature of our free government makes it completely
incongruous to have a rule of law under which a group
! of citizens temporarily in office can deprive another
group of citizens of their citizenship. We hold that
the Fourteenth Amendment was designed to, and does,
; protect every citizen of this Nation against a con-
! gressional forcible destruction of his citizenship,
| whatever his creed, color, or race. Our holding does
I no more than to give to this citizen that which is
| his own, a constitutional right to remain a citizen
in a free country unless he voluntarily relinquishes
i that citizenship. Perez vs. Brownell is overruled.
The judgment is Reversed.24
Thus the decision in Afroyim vs. Rusk marks the
abandonment of the previous section-by-section focus of ex
patriation rulings and affirms a very strong right to citi-
izenship. The only remaining means of expatriation is volun
tary relinquishment of citizenship. Voluntary relinquish
24Ibid., pp. 267-268.
130
ment is not, of course, a concept to be strictly defined,
and undoubtedly requires a type of intent definition quite
distinct from those relating to torts or even to criminal
!
;law. If a voluntary rejection of citizenship is one that
|
jentails full awareness of the significance of such a rejec-
I
jtion and the consequent loss, then even nationalization in
lanother country might not in certain cases prove to be vol
untary . A finding of intent in expatriation cases must now
: i
!be based on clear, persuasive and unmistakable evidence of j
I
i
deliberate and knowing renunciation by a citizen of his
citizenship and all it confers. The presumptions attached
'to other types of acts in such cases are now effectively j
I
precluded, and of course cannot under any circumstances be
applied irrespective of intention.
j
j The cases subsequent to Afroyim illustrate the
! 25
change. In Baker vs. Rusk a lower court held that loss of
citizenship was not jeopardized by an oath of admission to
the Bar of Canada. Mr. Baker, born in North Dakota and
reared and educated in Canada, became a lawyer in 1926 and
practiced in Canada until 1944, at which time he returned to
the United States. Since the oath administered by the Bar
i
I
| 25296 F. Supp. 1244 (1969).
included an oath of allegiance to the King of England, the
State Department took the position that Baker had committed
an act of expatriation; the Court, viewing the circumstances
I
! of the act in the light of Afroyim, found no evidence of a
|
[voluntary renunciation of citizenship.
i
2 6
j In Bellei vs. Rusk, the Court dealt with an appar
ent violation of due process because of a statutory dis- j
i i
! t
'crimination between naturalized citizens and natural-born i
! |
jones . The case involves 301 (A) and (B) of the Immigration i
! 27
jand Nationality Act of 1952, which confers citizenship on
a person born outside of the United States by at least one
American parent. It provides that before the age of twenty-j
i
eight one must complete at least five years of actual resi-
jdence in the United States . The Court held the latter re-
!
jquirement violated the due process clause of the Fifth
i
Amendment. The plaintiff was born in Italy in December 1939
I
of an Italian father and an American mother. Both parents
have maintained citizenship in their respective countries;
the plaintiff has always considered himself a United States
citizen; he registered for the draft and visited America
several times on an American passport. When he reached age
| 26296 F. Supp. 1247 (1969).
! ^ 8 United States Code 1401.
132
twenty-eight and was not a resident of the United States,
the State Department refused to renew his passport as a
United States citizen. The Court again finding no evidence
'of voluntary renunciation, reversed the State Department
I
[ruling. The Court's particular concern, however, was with
|
the second-class or conditional citizenship granted:
I
I In view of the prior grant of citizenship to plain
tiff we do not think Congress can now slam the door
! in his face. Whatever the reason plaintiff remained
i abroad, family ties or schooling, Congress cannot
| terminate his citizenship on the ground that he only
; enjoyed a second-class citizenship, one that re
stricted his "rights to live and work abroad in a
j way that other citizens may." This is contrary to
Schneider and Afroyim.^8
On the other hand, the Court seriously considered the gov
ernment's argument that the five-year requirement is reason-
jable and thus constitutional:
j
The Government argues in the alternative that even
if congressional power to enact conditions on citi
zenship is limited by due process, section 301 (b)
contains reasonable conditions and is, therefore,
constitutional. It is urged that section 301 (b)
is simply a reasonable way of assuring that children
of hybrid origin give some affirmative indication of
’ desiring to be part of our society as well as avail
themselves of our protection and the opportunity to
! come to this country whenever it proves expedient
| . .. The Government's contention is not without
; appeal, and we have pondered the matter carefully.
28Bellei vs. Rusk, 296 F. Supp. 1247, 1250 (1969).
133
There is an undeniable danger that children, born
and raised abroad, in a foreign home, where English
may never be spoken, schooled where English is not
taught, celebrating foreign holidays with the family
of the non-American parent, will have no meaningful
connection with the United States, its culture or
heritage. It is a legitimate concern of Congress
that those who bear American citizenship and receive
its benefits have some nexus to the United States.
We hold only that Congress may not proceed by grant
ing citizenship, and then either qualifying the grant
by creating a second class citizenship or terminating
the grant. The broad teaching of Afroyim and Schnei
der is that once American citizenship has been recog
nized or conferred, Congress may not remove the sta
tus j it is for the citizen to abandon his citizenship
voluntarily
I Summary
I
| Expatriation law and its basic interpretations have j
: !
[only recently become definitive. The history of pertinent
'[statutes can be traced no earlier than 1868, while the ef-
i
!
'forts of the Supreme Court to delimit and affirm the con
stitutional inviolability of the right to citizenship, at
first through a case-by-case approach and, finally, by the
[comprehensive ruling in Afroyim vs. Rusk, date only from
1951. The power of Congress to impose expatriation has at
last been vigorously limited: the possession of United
States citizenship, formerly subject to legislative whim,
I
|can no longer be terminated easily] it must be voluntarily
29Ibid., pp. 1251-1252.
134
renounced. The Court has defined and secured this inherent
right in accordance with the spirit of the United States
!
jconstitution and the assertion of the right of nationality
I
I . 30
i n t h e U n i v e r s a l D e c l a r a t i o n o f Human R i g h t s .
| The Attorney General's opinion in 42, Opinion of the
Attorney General. No. 34 (1968) implicitly recognizes the
jsignificance of a ruling that effectively shifts the burden
;of proof in expatriation cases to the government. He begins
by making clear that the ruling has stressed "the constitu-
i
i
Itional mandate that no citizen born or naturalized in the
;United States can be deprived of his citizenship unless he
has 'voluntarily relinquished' it." The opinion then
stated:
i
| Once the issue of intent of voluntary relinquishment
| is raised, the act makes it clear that the burden of
j proof is on the party asserting that expatriation
! has occurred. Afroyim suggests that this burden is
not easily satisfied by the Government. In the words
of Justice Black quoted above from his concurring ■
opinion in Nishikawa, the voluntary performance of
some acts can "be highly persuasive evidence in the
particular case of a purpose to abandon citizenship."
Yet some kinds of conduct, though within the pro
scription of the statute, simply will not be suffi-
: ciently probative to support a finding of voluntary
I expatriation.
i For instance, it is obviously not enough to establish
i a voluntary relinquishment of citizenship that an
■^United Nations Document A/810 (1948) .
135
individual accepts employment as a public school
teacher in a foreign country. A different case
would be presented by an individual's acceptance
of an important political post in a foreign govern
ment .
A similar approach can be taken with respect to
service in a foreign army., depending on the particu
lar circumstances involved. Thus, an individual who
enlists in the armed forces of an allied country
does not necessarily evidence that by so doing he
intends to abandon his United States citizenship.
But it is highly persuasive evidence, to say the
least, of an intent to abandon United States citi
zenship if one enlists voluntarily in the armed
forces of a foreign government engaged in hostili
ties against the United States.
The examples mentioned above are, of course, merely
illustrative. In each case the administrative
authorities must make a judgment, based on all the
evidence, whether the individual comes within the
terms of an expatriation provision and has in fact
voluntarily relinquished his citizenship.
CHAPTER V
THE RIGHT TO DIE
I n t r o d u c t i o n
A lt h o u g h t h e r a t h e r n o v e l q u e s t i o n o f t h e r i g h t t o
d i e h a s p la g u e d A m e r ic a n j u r is p r u d e n c e f o r som e t i m e , t h e r e
h a v e a s y e t b e e n no U n it e d S t a t e s Suprem e C o u r t r u l i n g s ; a l l
i
c a s e s a p p e a le d fro m t h e v a r i o u s S t a t e Suprem e C o u r t l e v e l s
h a v e b e e n d e n ie d w r i t s o f c e r t i o r a r i .
E s s e n t i a l l y t h e " r ig h t t o d ie " may b e d e f i n e d a s t h e
; in h e r e n t r i g h t t o t a k e o r r e l i n q u i s h o n e ' s l i f e . T he s p e -
!
| c i f i c l e g a l i s s u e s , h o w e v e r , h a v e g e n e r a l l y a r i s e n i n t h e
i
a r e a o f m e d ic a l c a r e , t h e m o s t common t y p e o f c a s e i n v o l v i n g
t h e r e f u s a l o f J e h o v a h 's W i t n e s s e s t o a u t h o r i z e b l o o d t r a n s
f u s i o n s d e s p i t e t h e im m in en ce o f d e a t h d u e t o l o s s o f b l o o d .
; T he r e a s o n s f o r r e f u s a l o f n e c e s s a r y m e d ic a l t r e a t
m en t a r e n o t , o f c o u r s e , a lw a y s r e l i g i o u s . R o n a ld C olm an ,
a fam ou s m o v ie a c t o r , r e f u s e d t o s u b m it t o a c o lo s t o m y
i
d e s p i t e t h e s u p p o s e d im m in en ce o f d e a t h ; f o r t u n a t e l y h e
137
lived for many years after release from the hospital.
jSenator Everett M. Dirhsen was warned of the necessity of
jcertain surgical procedures that would have resulted in
|
blindness; he refused the prescribed treatment, also without
jill effect. In many such cases, however, the patient's
|
refusal is fatal. The legal question is whether the in
dividual reserves inalienable freedom to choose to die, or
j
must rather recognize the state's interest in enjoining the j
preservation of life by all available means and without
I
regard to individual choice of its citizens.
Although the following discussion is largely con
fined to those numerous cases in which the question of reli
gious freedom arises, we can note in the cases described
I
below the emergence of a number of additional legal and
i
jother issues. Several obvious and traditional arguments or
i
precepts might be adduced to justify qualifications of the
individual right to refuse to live: parens patriae, soci
ety's interest in the maintenance of life, the moral duty to
preserve life. We derive from our Judaeo-Christian heritage
|the premise that underlies most of the legal doctrines
evolved in the area of this right, the premise of the sacred
ness of life; yet, ironically, the decisions based on these
i
doctrines have entailed abridgments of that very freedom of
138
w o r s h ip o f w h ic h t h a t h e r i t a g e i s a l s o t h e s o u r c e . The
c o u r t s a r e t h u s f a c e d w i t h a u n iq u e form o f c h u r c h - s t a t e
c o n f l i c t i n w h ic h b o t h o b v io u s a l t e r n a t i v e s v i o l a t e b a s i c
j t e n e t s o f o u r J u d a e o - C h r i s t i a n e t h o s .
I I t s h o u ld b e e v i d e n t t h a t t h e J e h o v a h 's W i t n e s s e s i n
t h e f o l l o w i n g c a s e s a r e n o t i n e f f e c t a t t e m p t i n g s u i c i d e ]
!
t h e y a r e m e r e ly d e t e r m in e d t o a v o i d c o m m itt in g w h a t t h e y
I
c o n s i d e r a " s i n ." One o f t h e W it n e s s e s e v e n s t a t e d t h a t i n j
ith e e v e n t o f a c o u r t o r d e r w h ic h r e q u i r e d a b lo o d t r a n s f u -
|
|s i o n , h e w o u ld n o t b e g u i l t y o f h a v in g c o m m itte d t h a t p a r
t i c u l a r " s in ." N one o f t h e f o l l o w i n g c a s e s d e a l w i t h i n
c o m p e t e n t s j c h i l d r e n , o r t h e i n s a n e ] t h e p a t i e n t s i n v o l v e d
a r e c o m p e te n t a d u l t s v o l u n t a r i l y r e f u s i n g m e d ic a l c a r e ,
j In A p p l i c a t i o n o f P r e s i d e n t an d D i r e c t o r s o f G e o r g e -
j
! l
(town C o l l e g e , a J e h o v a h 's W itn e s s h a d v o l u n t a r i l y p l a c e d
h e r s e l f i n t h e G e o r g e to w n U n i v e r s i t y H o s p i t a l f o r t r e a t m e n t
o f a p e p t i c u l c e r an d t h e l o s s o f b lo o d b eca m e c r i t i c a l .
i
The h o s p i t a l a p p l i e d t o a U n it e d S t a t e s D i s t r i c t C o u r t f o r
i
a n o r d e r t o t r a n s f u s e . The D i s t r i c t C o u r t r e f u s e d ] o n e mem
b e r o f t h e C i r c u i t C o u r t s i g n e d t h e o r d e r , a r g u in g t h a t t h e
j
p a t i e n t i n h e r p r e s e n t s t a t e w as u n a b le t o m ake s u c h a
n
I
■ ' ’ 331 F^n<^ 1000 (1964), certiorari denied in 377 U.S.
978 (1965).
139
decision and that his order was in the nature of a guardian-
iship. He added another legal reason, stating that since the
patient was the mother of a minor child the court acted in
parens patriae. The judge in further dicta observed that
j
some alleviation had to be given the hospital, and finally
that a life was at stake and he had concluded that he must
act on the side of life.
2
In the case of Powell vs. Columbia Medical Center,
I
in which a dramatic decision was written by an obviously
"moved" judge, the position of the hospital was purely a
legalistic one: in effect, that the hospital could not ad
minister blood to the patient without her prior written |
| I
authorization, which she could not bring herself to grant
jbecause of religious compulsion, although she had in fact
|
^indicated her desire to live. She was the mother of six
j
'children.
It is of interest to note in this case how the judge
^describes the decision-making process as he perceives it:
. . . nor could I forget for one moment my convic
tions with regard to the individual's right to be
let alone or— crucially important— that a human life
I hung in the balance.
! Never before had my judicial robe weighed so heavily
2267 N.Y.S.2nd 450 (1966).
140
on my shoulders. Years of legal training, experi
ence and responsibility had added a new dimension
to my mental process— I, almost by reflex action,
subjected the papers to the test of justiciability,
jurisdiction and legality. I read Application of
President and Directors of Georgetown College, Inc.,
118 U.S. App. D.C. 80, 90, 331 F. 2d 1000 and at
1 0 1 0, and was convinced of the proper course from
a legal standpoint. Yet, ultimately, my decision
to act to save this woman's life was rooted in more
fundamental precepts. It became clear to me that
the crux of the problem lay, not in Mrs. Powell's
religious convictions, but in her refusal to sign
a prior written authorization for the transfusion
of blood. She did not object to receiving the
treatment involved— she would not, however, direct
its use. I was also convinced that the hospital,
having obtained a signed release of liability from
any consequences flowing from the failure to admin
ister blood transfusions, took the view that it had
fulfilled its obligations to this patient and would
! not, under these circumstances, administer blood
transfusions even if necessary to save the patient's
life .
I How legalistic minded our society has become, and
j what an ultra-legalistic maze we have created to the
j extent that society and the individual have become
| enmeshed and paralyzed by its unrealistic entangle-
i ments.
|
I was reminded of "The Fall" by Camus, and I knew
that no release— no legalistic absolution— would
absolve me or the Court from responsibility if I,
speaking for the Court, answered "No" to the ques-
i tion "Am I my brother's keeper?" This woman wanted
• to live. I could not let her die.3
i
j The Jehovah's Witness in an Illinois case, In re
i 4
Brooks, survived a court-enforced transfusion and is now
qsking the court to annul the order, even though it was
3Ibid.. p. 451. 4205 N.E.2nd 435 (1965).
141
moot; the court stated that the issue involved was of "such
substantial public interest" that they would hear it. The
contention of the state's attorneys was that the overriding
interest of the state in the lives of its citizens should
putweigh the personal interest of the appellant., Mrs.
Brooksj in this matter. (The state relied on vaccination,
polygamous marriage, and poisonous snake cases.) The court
!
|held against her and held that her rights under the First
and Fourteenth Amendments remained subject to the condition
i
that the exercise thereof not clearly and presently endanger
the general public health, welfare, or morals.
In the case of Application of George Erickson, M.D.
j 5
vs. Jacob Dilgard, a New York case, an order for blood
s
jtransfusion was denied. The petitioner was the county hos-
j
jpital and the patient was suffering from an ulcer and in
i
need of surgery. The case does not indicate why the patient
refused to sign. The legal argument in this case was that
the refusal to sign was tantamount to suicide (an act pro-
i
hibited in New York) . The court refused to issue an order
ion the grounds that since Mr. Dilgard was an adult and
I
i
voluntarily refused to authorize treatment, his decision
t
j ______________________
5252 N.Y.S.2nd 705 (1965).
142
m u st s t a n d . T he c o u r t f u r t h e r n o t e d t h a t t h e d o c t o r s m ig h t
b e m is t a k e n i n t h e i r d i a g n o s i s .
D i s c u s s i o n
T h e s e c a s e s w h ic h a r e c o m p li c a t e d b y t h e r e l i g i o u s
j
i s s u e h a v e p r o v e d t o b e t h e m o st p e r p l e x i n g . On t h e o n e
h a n d t h e c o u r t s m u st h o n o r t h e c o n s t i t u t i o n a l g u a r a n t e e o f
r e l i g i o u s fr e e d o m , on t h e o t h e r t h e u n s t a t e d p r e m is e o f t h e
js a c r e d v a l u e o f l i f e . I n a l l c a s e s i n v o l v i n g t h e r i g h t t o
|d ie t h e c o u r t m u st c h o o s e b e t w e e n t h a t a b s o l u t e p r e m is e an d
!th e b a s i c c a u s e o f p e r s o n a l l i b e r t y . T he p r e s s u r e t o a c t on
p u r e l y hum ane g r o u n d s h a s l a r g e l y p r e v e n t e d j u d g e s fro m
;fr a m in g p r e c i s e an d c o n s i s t e n t d o c t r i n e s on w h ic h f u t u r e
i
i d e c i s i o n s m ig h t b e d i r e c t l y b a s e d ; i n t h i s c o n n e c t i o n i t
I
L eem s l i k e l y t h a t t h e la w y e r s i n v o l v e d h a v e k n o w in g ly s e -
|
! le c t e d s y m p a t h e t ic j u d g e s . We c a n , h o w e v e r , d i s c e r n c e r t a i n
‘ common a p p r o a c h e s . The c o u r t s h a v e f r e q u e n t l y a p p l i e d ,
th o u g h m a in ly i n a s e c o n d a r y s e n s e , t h e c o n c e p t o f p a r e n s
p a t r i a e , w e l l - d e f i n e d in J o h n s o n v s . S t a t e . ^
! P a r e n s P a t r i a e i s a r i g h t o f s o v e r e i g n t y an d im p o s e s
! a d u t y on t h e s o v e r e i g n t o p r o t e c t t h e p u b l i c i n t e r e s t
! a n d . . . s u c h p e r s o n s w i t h d i s a b i l i t i e s who h a v e n o
‘ r i g h t f u l p r o t e c t o r . . . . I t e x t e n d s t o t h e p e r s o n a l
j _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
j
j 6114 A2nd 1 (1955).
143
liberty of persons who are under such a disability
whether by reason of infancy, incompetency, habitual
drunkenness, imbecility.^
A balancing test, weighing the private against the public
interest, was applied in the Brooks case, but without de-
i
jfinitive criteria. The law in general is seeking familiar
l
land analogous solutions to the problem, and is thus attempt-
i
jing, with uncertain success, to apply concepts and rulings
that evolved in respect to on-going religious practices and
I |
Situations in which the refused medical care was not con-
i
sidered requisite to survival. In this area of the "right
to die," as in the segregation cases, courts are in effect
meeting the demands of a traditional role: that of main
taining a viable holding action until the "felt necessities
[of the times" call forth a comprehensive doctrinal stand
]
jthat represents the needs and the conscience of society.
I
It may finally be noted that in general the judges have been
ruling in favor of life.
| The "Right to Live"
i
| It might be interesting to speculate whether a firm
stand against the unqualified right to die could subse-
j
[quently serve as a basis for consideration of a legally
|
| ^Ibid., p. 5.
144
enforceable "right to live." It would seem that the logi
cal correlative of the insistence on life would be an effort
jto ensure that life be worth living, as well as concern for
j
{the plight of those deprived of normal motives for living:
j
the mentally ill or defective, the physically handicapped,
I
the hungry, the ill, the insane, the imprisoned. The en
gagement of public opinion over the issue of the right to j
| j
jdie may naturally lead to equal fervor in the cause of a j
{right not merely to live but to possess the full creative
I
enjoyment of life. Such a right would in turn involve the
right to freedom from poverty and disease, a guaranteed
education, the right to freedom from pollution of the en
vironment, perhaps even provisions for individual injunc
tions enjoining the sale, distribution, and use of pollu-
[
I
!tants or pollutant products. It may lead to legislation
i
| |
requiring the maintenance and creation of large recreation
areas . Some issues would naturally gain in prominence under
ithe right to live in its most literal sense: capital pun-
jishment, euthanasia, suicide, sterilization, abortion, arti
ficial human insemination, birth control. Certain legal
I |
processes by which the generic right to live and numerous !
jcorrelative rights might be gradually absorbed by the body
|
jof law have indeed been noted already in the chapter on the
145
right to privacy. Either Mr. Justice Douglas' doctrine of
penumbral rights or Mr. Justice Goldberg's application of
■the Ninth Amendment as a rule of construction, or the con-
i
jcept of natural rights might be enlisted in an effort to
provide a basis for the articulation of innumerable unenum-
i
erated rights to enhance life, a basis for a process by
jwhich the law might continually respond to the demands and
readiness of the social milieu. Another possible approach
jwould be to recognize unenumerated rights as based simply on
I
the due process clause. The legal machinery now exists,
though society as a whole has not yet approved its possible
uses .
' It is likely that the full employment of existing
i
]
jlegal means will be accompanied by related social and legis-
!
lation advances. Our present mood in America, especially
among the young, is quickly removing barriers to acceptance
of such broad changes . The activity in the ghettos and the
interest in poverty programs in America is not simply an
Expression and relief of guilt or pity, as some psycholo
gists would have us believe^ rather it is a commitment to
the belief in the value of life and the dignity of the in
dividual. The present rebellion, though often viewed as
alarming and strange by the older generation, is in general
146
positive.
Let us hope that in their concern for the quality
and purpose.of life in this country they will not fail to
note and make use of the legal trends and innovations which
have been briefly dealt with in this chapter.
CONCLUSION
Constitutional government has been at best difficult
|to maintain. It has been maintained in America because
jAmerican courts, placed between the individual and the gov-
jernment, have in general adapted the powers of the govern-
I
ment to the preservation of individual liberty. In response
|to the greater social awareness of the post-World War II
era, the concept of unenumerated rights, relatively new to
American jurisprudence, has become an essential tool of the
courts. Unenumerated rights have always been present, but
have been evoked, applied, and recognized only as the need
i
jarose. This chapter reviews them within the broad spectrum
of constitutional government, consensus of the times, the
present legal climate, and the philosophical and historical
structure of the legal system.
j The essence of liberty is the power of the individ-
|
ual to express his freedom; i.e., he must be free to do as
he pleases within socially acceptable limits. An individual
148
i s n o t m ade f r e e b y a r e p r e s e n t a t i v e a s s e m b ly , o r b y an
^ e le c t e d e x e c u t i v e , b u t b y f r e e a n d u n c o m p lic a t e d a c c e s s t o
i
g o v e r n m e n t a l p o w e r s . H is l i b e r t y c a n n o t b e c o r p o r a t e o r
com m u n al: i t m u st b e l o n g t o t h e i n d i v i d u a l o r i t d o e s n o t
j
l e x i s t . A m e r ic a i s u n iq u e i n t h a t i t h a s k e p t s o v e r e i g n t y
i n t h e p e o p l e t h r o u g h t h e c o u r t s , w h i l e m o s t o t h e r " c o n s t i
t u t i o n a l " g o v e r n m e n ts h a v e k e p t s o v e r e i g n t y i n t h e a s s e m b l y ,
j it i s t h i s b a r r i e r o f t h e c o u r t s w h ic h f i x e s an a r e a w i t h i n j
^vhich t h e i n d i v i d u a l m ay a c t f r e e l y . W hat m ak es t h e s y s t e m j
j j
e f f e c t i v e i s t h a t t h e c i t i z e n ' s r i g h t t o a c t f r e e l y i s
’ l
r e c o g n i z e d a s a b o v e g o v e r n m e n t a t a n y l e v e l , f e d e r a l , s t a t e ,
o r l o c a l ; t h u s t h e i n d i v i d u a l c a n e a s i l y p u t i n m o t io n p r o
t e c t i v e a c t i o n b y t h e c o u r t t o b l o c k u n c o n s t i t u t i o n a l r e
s t r a i n t s u p on h i m s e l f .
!
A m i n o r i t y o f t h e fr a m e r s o f t h e c o n s t i t u t i o n , Jam es
M a d iso n i n p a r t i c u l a r , w e r e f e a r f u l o f a n e n u m e r a te d B i l l o f
I
R i g h t s an d i t s c o n c o m it a n t p o t e n t i a l o f l i m i t a t i o n o f i n
d i v i d u a l r i g h t s . F o r t u n a t e l y , t h e L o c k e a n c o n c e p t o u t l i n e d
a b o v e , i . e . , o f r i g h t s p r i o r t o g o v e r n m e n t, h a s p r e v a i l e d ,
a n d t h e r e c o r d o f o u r c o u r t s i n p r o t e c t i n g s u c h r i g h t s h a s
b e e n o n e o f s t a t e s m a n l i k e c o n t r o l . T he C o n s t i t u t i o n h a s
b e e n u s e d b y t h e c o u r t s a s an in s t r u m e n t w i t h w h ic h t o d e -
i
j fin e w h a t e v e r u n e n u m e r a te d r i g h t s t h e c o n s e n s u s o f t h e
149
im m e d ia te t im e s d e m a n d e d . I t i s b e i n g s o u s e d t o d a y . I t
c o u l d h a r d l y h a v e b e e n o t h e r w i s e , s i n c e t h e i d e a o f u n e n u -
iin e r a ted r i g h t s i s t r a d i t i o n a l i n t h e A m e r ic a n s y s t e m . I t
I
|
|was c a r e f u l l y c o n s i d e r e d d u r in g t h e fr a m in g o f t h e c o n s t i
t u t i o n an d a t t h e t im e o f a d o p t i o n o f t h e f i r s t t e n am en d -
|
m en tS j a n d i s b a s i c t o o u r c o n s t i t u t i o n a l t h e o r y . The i d e a l
|o f t h e L o c k e a n m an, u n f e t t e r e d , p r o t e c t e d fro m i n t e r f e r e n c e
l
i , !
,by t h e s t a t e , i s s t i l l a p a r t o f t h e A m e r ic a n h e r i t a g e . |
|
iH ence t h e a t t e n t i o n o f t h e c o u r t s t o t h i s c o n s e n s u s . j
O f c o u r s e , t h e L o c k e a n i d e a l i s a m yth i n o u r m odern
m ass c o l l e c t i v e s o c i e t y . I n f r in g e m e n t s u p on t h e i n d i v i d u a l
a p p e a r i n fo rm s u n d ream ed o f i n t h e s im p le A m e r ic a o f t h e
e i g h t e e n t h c e n t u r y , an d t h e c o m p le x i t y o f t h e p r e s e n t s o c i a l
1
ie n v ir o n m e n t m akes t h e r i g h t t o an e d u c a t i o n , t o a j o b , t o
im e d ic a l c a r e , t o p r i v a c y , and t o o t h e r f u n d a m e n ta ls e s s e n
t i a l t o t h e m a in t e n a n c e o f h i s l i b e r t y . T h e s e new n e e d s do
n o t c o i n c i d e w i t h t h e L o c k e a n m y th , a n d t h e y t e n d t o form
ian i d e o l o g i c a l c o n f l i c t a c t i n g u pon t h e c o n s e n s u s . The
b a s i c A m e r ic a n co m m itm en t t o j u s t i c e a l s o a f f e c t s t h e c o n
c e n s u s . I t s f o c u s h a s v a r i e d from t h e o r i g i n a l v e s t e d an d
| j
p r o p e r t y i n t e r e s t s o f t h e c o u n t r y ' s i n f a n c y t o t h e j u r i s -
ip r u d e n c e o f s t a t u s , w h ic h f i r s t a p p e a r e d t o a n im p o r t a n t
i
i
jd e g r e e i n t h i s c e n t u r y an d h a s e v o l v e d v e r y q u i c k l y s i n c e
150
t h a t t i m e . The n e e d s o f t h e p e o p l e , an d t h e r e f o r e t h e c o n
s e n s u s o f t h e p e o p l e , h a v e c h a n g e d , an d t h e c o u r t s a r e r e
s p o n d in g . I n d e e d , t h e c o u r t s h a v e i n m o st i n s t a n c e s a n t i
c i p a t e d t h e s e n e e d s an d h a v e l e d t h e s h i f t i n e m p h a s is .
j H o w e v e r, t h e r e c e n t A m e r ic a n s o c i a l d e v e lo p m e n t h a s
!
jbeen f a s t e r th a n t h e r e s p o n s e o f t h e j u d i c i a l s y s t e m . T h e r e
jis som e f e a r t h a t t h e s y s t e m w i l l c e a s e t o f u n c t i o n s a t i s -
i
[ f a c t o r i l y a s m ore an d m ore o f t h e p o w er o f p o p u la r d e c i s i o n
i
jis r e m o v e d from t h e d e m o c r a t ic p r o c e s s an d s h i f t e d t o s p e
c i a l i n t e r e s t s . C e r t a i n l y , en o rm o u s c h a n g e m u st o c c u r i f
I
t h e s y s t e m i s t o b e p r e s e r v e d , b u t much o f t h i s c h a n g e c a n
b e b r o u g h t a b o u t b y a d a p t a t i o n s w i t h i n t h e j u d i c i a l s y s t e m j
i t s e l f , i f s u c h a d a p t a t i o n s a r e a c c o m p a n ie d b y m o d i f i c a t i o n s
w i t h i n t h e l e g i s l a t i v e and e x e c u t i v e b r a n c h e s a s w e l l . The
p r e s e n t s t a n c e o f t h e Sup rem e C o u r t h a s s o f a r b e e n o f
i
I
g r e a t e s t im p o r ta n c e t o t h i s p r o c e s s o f a d a p t a t i o n . The
C o u r t ' s r e j e c t i o n o f t h e l i m i t a t i o n s o f e n u m e r a te d r i g h t s ,
a n d i t s b o l d a d o p t io n o f a b r o a d p a t t e r n o f u n e n u m e r a te d
r i g h t s , h a s a id e d t h e f u t u r e d e v e lo p m e n t o f i n d i v i d u a l
r i g h t s t o w h a te v e r d e g r e e t h e s o c i a l c o n s e n s u s r e q u i r e s .
T he e x p a n s io n o f u n e n u m e r a te d r i g h t s i s p a r t i c u l a r l y
im p o r t a n t a t t h i s t i m e . F o r e x a m p le , a d m i n i s t r a t i v e p l a n -
I
n i n g , a n e c e s s a r y e v i l o f t h e m od ern c o l l e c t i v e s o c i e t y .
151
often has profound effects on the rights of the individual.
It has been at best difficult to protect individual freedom
from the influence of such planning, and it is the author's
premise that only an individual bill of rights, both enu-
j
merated and unenumerated, can provide this protection. The
j
activity of the Court in response to the need for definition
|Of unenumerated rights has been both timely and heartening.
I
| The author has discussed in this paper only a few
jexamples of this response. The right to travel decisions
|
iare an example of one such response which affected only a
very small number of persons. Of more importance were the
'expatriation cases. In these cases military planning had
'established standards for discharge which the Department of
iState had allowed to become standards for loss of citizen-
jship. This is not to say that the executive and legislative
branches of the government have taken no part in the recog
nition of unenumerated rights. President Truman's executive
iorder desegregating the armed forces and the civil rights
llegislation of the 1960's are but two examples of executive
i
land legislative activity in this area, but the United States
Supreme Court has led the way.
The innovative activity of the present Supreme Court
has been strongly criticized, but the apparent boldness of
152
many of its decisions has been necessary, when one considers
the volume, importance, and variety of the cases and the
social pressures responsible for them. It is not without
justification to consider that the judicial safety valves
provided by these decisions have saved the American govern-
i
ment. It is even possible that not enough relief has been
obtained. In the case of the rights which are the subject
of this study there is room for the Court to go further than
lit has, since the Court's action in these cases was in the
!
jnature of recognition of existing rights which had been in
fringed, rather than in the nature of creating new rights.
This study does not consider such other Supreme Court ac
tions as the reapportionment cases, which may serve as ex-
I
jamples of the policy limits of the Court. The reapportion-
I
i
ment decisions differ in that they alter the system, since
i
ithey shift the balance of political power to the urban pop
ulations .
Thus it is seen that the Supreme Court has responded
to the pressures of social necessity and governmental change
to construct new definitions of individual rights. The
Court's approach has been entirely functional, and mostly
old and established legal methods and reasoning have been
utilized. It has simply reinterpreted traditional
153
enumerated rights realistically in terms of modern require-
bents, and added a number of unenumerated rights as demanded
by circumstances. Almost all of this activity has occurred
jwithin the last decade. It is difficult to predict which
|
jindividual rights will be taken up next by the Court, but
several are due for consideration: the rights to a job, to
an education, to physical and mental health, to a suitable
physical environment, to an honorable death, to a minimum
[standard of living, and to privacy are among these. j
The current literature discusses unenumerated rights
and their "discovery" as if they were completely new. This
is not entirely true. The natural law content of unenumer- j
ated rights has always been a part of both legal and lay
|
thinking in America . Throughout the history of the Supreme
|court its effect has been to support justice and fairness in
! 1
economic, social, and other areas. The legal doctrines,
^See: "Shocks the conscience" (Rochin vs. Califor
nia, 342 U.S. 165, 172 [1952]); "Principle of justice so
rooted in the traditions and conscience of our people to be
ranked as fundamental" (Snyder vs. Commonwealth of Massachu
setts, 291 U.S. 91, 105 [1933]); "Those canons of decency
and fairness which express the notions of justice of English
speaking people" (Malinski vs. New York, 324 U.S. 401, 417
[1944]); "Fundamental notions of fairness and justice"
[(Haley vs. State of Ohio, 332 U.S. 596, 607 [1948]); "Rights
basic to our society" (Hebert vs. Louisiana, 272 U.S. 312,
j316 [1926]); "Denial of fundamental fairness shocking to the
[universal sense of justice" (Poe vs. Ullman, 367 U.S. 497,
539 [I960]).__________ _ _______________________________
154
both new and old, under which these emergent rights are
fceing declared perhaps appears in sharpest perspective in
2
the case of Griswold vs. Connecticut. In this case there
jare found well-articulated jurisprudential concepts; the
ifirst holding on the Ninth Amendment, and Mr. Justice Doug
las 1 apparent Roman Civil Law make the case almost unique.
Mr. Justice Douglas delivered the decision of the
majority. This decision on a "right of privacy" is based
i
ion his interpretation of the Fourteenth Amendment due proc-
!
i
|ess clause. His position is that each right found in the
i
'Bill of Rights has "penumbras formed by emanations from
3
those guarantees that help give them life and substance."
Other penumbral examples he cites are the right of associa
tion found in the First Amendment, and the prohibition of
jquartering soldiers in any house, which are facets of pri-
j
vacy. Other emanations from the First Amendment freedom of
speech and press clauses include not only the right to utter
lor print, but the right to distribute, receive, and read,
land the freedom to inquire, think, and teach,
i Up to this point we see Mr. Justice Douglas visual
izing and arguing a right of privacy as an emanation (his
|
I 2381 U.S. 479 (1964). 3Ibid. . p. 483.
155
exact word) from a specific right, thus giving us the source
of these rights as a facet of others and increasing the
|
jbreadth of a specific right. However, he says, "The present
lease, then, concerns a relationship lying within the zone of
I ■
privacy created by several fundamental constitutional guar-
i
4
antees ." The latter statement indicates a slightly differ
ent precept: that the emanations formally spoken of create
[overlapping zones of privacy which, when combined, give us
ja larger general concept of the right of privacy.
| In a concurring opinion by Mr. Justice Goldberg,
I
with whom Mr. Justice Brennan joined, the same right of
privacy was supported by a different legal concept: the j
i !
i
Ninth Amendment as a rule of construction. This means that
i
his use of the Ninth Amendment does not create an indepen
dent source of rights by its presence, or that the Four-
i
!
teenth Amendment incorporates it, but rather that it is a
rule of construction which does not limit the court in its
determination of individual rights to the stated rights . He
gives us no real insight into how he arrives at the right of
marital privacy, except that he says:
The entire fabric of the constitution and the pur
poses that clearly underlie its specific guarantees
^'Ibid., p. 485.
156
demonstrates that the rights to marital privacy and
to marry and raise a family are of a similar order
and magnitude as the fundamental rights specifically
protected. . . . The fact that no particular provi
sion of the constitution explicitly forbids the state
from disrupting the traditional relation of the fam-
! ily— a relation as old and fundamental as our entire
I civilization— surely does not show that the government
was meant to have the power to do so.~*
(An insight into his thinking is given in his last sentence
:on page 499 that "The marital privacy relation is fundamen
tal and basic.")
|
He speaks of the right of privacy as being "from the
j g
jtotality of the constitutional scheme under which we live"
and once right of privacy is found* certainly it will cover
marital privacy.
Mr. Justice Harlan concurs* but says the right of
Iprivacy rests on the due process clause of the Fourteenth
j'Amendment and does not emanate from any of the Bill of
Rights but stands on its own.
Mr. Justice White concurs* and sees this as a
Ideprivation of "liberty" under due process clause.
!
In dissent Mr. Justice Black said that had the doc
tor and non-doctor here been convicted of speech and nothing
Imore* he would find the conviction unconstitutional on the
^ibid., p. 495. ^Ibid.
157
ground of freedom of speech. He objects on the grounds upon
which the majority decided, i.e., the method of reasoning:
a stated right is found and some words of that conclusion
I
jare replaced by less precise words, and then the less pre-
i
icise words are interpreted relative to a subsequent set of
facts, thus expanding the original concept in proportion to
jthe ambiguity of the term. Therefore, the result is that
i
i
the due process argument adopted by Harlan and White is that
the Court is vested with power to annul all state laws which
|
i
jthe Court considers arbitrary, capricious, unreasonable, or
oppressive. This is "natural law," and leaves the decisions
of the judges to be based on an individual judge's own
appraisal of what is constitutional.
j His second point is that there may be a need for
change at any time in history, and that the framers of the
Constitution provided for that by specifying the amending
process .
, In Mr. Justice Stewart's dissent, he asks, "What
7
provision of the Constitution invalidates this state law?"
The majority says that this provision is the "Right of Pri
vacy, " which is "created by several fundamental
j
I
j
j ^Ibid.^ p. 504.
158
c o n s t i t u t i o n a l g u a r a n t e e s ." Mr. J u s t i c e S t e w a r t s im p ly s a y s
h e c a n n o t come t o t h a t c o n c l u s i o n , and d i s s e n t s on t h e
jgrounds t h a t t h e c o u r t " ca n n o t d e c i d e c a s e s on c u r r e n t com
m u n ity s ta n d a r d s . . . , " b u t r a t h e r " a g r e e a b ly w i t h t h e
8
C o n s t i t u t i o n and la w s o f t h e U n it e d S t a t e s ."
i
j Mr. J u s t i c e D o u g la s ' p o s i t i o n ("penum bras and em a-
jn a tio n s" o f p r i v a c y ) a p p e a r s a t f i r s t g l a n c e t o b e t h e com -
i
mon A n g lo -A m e r ic a n m eth od o f a n a lo g y t o p a s t c a s e s . M i t -
9
j c h e l l F r a n k l i n , i n a la w r e v ie w a r t i c l e , a r g u e s t h a t i t i s
t
a r a d i c a l c h a n g e , and i s i n t h e n a t u r e o f a c i v i l law
i
m e th o d . Mr. F r a n k l i n ' s p o s i t i o n i s t h a t i t i s a h e a l t h y
a p p r o a c h , i n t h a t i t i s a more v i a b l e m eth od i n t h e l i g h t
o f t h e p r e s e n t s o c i a l c r i s i s and t h a t t h e u s e o f t h e a n a
l o g i c a l m eth od o f f o r m u la te d t e x t s w i l l p l a y an im p o r t a n t
j
jand g r e a t e r p a r t i n A m erican la w i n t h e f u t u r e . I t i s s i m -
!
p l y a n o t h e r a p p r o a c h t o t h e a n c i e n t and c o n t i n u i n g p r o b le m
o f j u r i s p r u d e n c e : how t o accom m odate t h e la c u n a e o f t h e
;law.
i The m eth od o f Mr. J u s t i c e D o u g la s i s d i f f e r e n t . He
|is u s i n g t h e f o r m u la t e d t e x t a s a s o u r c e o f la w , w h ic h i s a
I
| 8 I b i d .
i
j ^"The N in t h Amendment a s a C i v i l Law M eth od ," 40
p?ulane Law R e v ie w 487 ( A p r i l , 1966) .
159
novel method in our common law system. The American system
has limited the enacted text, and thus as a source of law it
is expended when the imperative of the text is spent. If
its content does not fill a lacuna, the jurist must then
turn to prior judicial determinations. (This may well be
the key to the non-use of the Ninth Amendment to date.) It ;
|
i
is not a drastic change to follow the Douglas method, nor j
j
should the Black method of finding the same result within '
"substantive due process," or the Goldberg approach through
i
the Ninth Amendment be necessary. The Black and Goldberg
methods satisfy tradition more comfortably, but they may not|
be viable in the present social crisis . Let us compare the !
three jurists 1 doctrines. j
j
Mr. Justice Goldberg is in direct conflict with Mr. !
Justice Douglas. He sees the Ninth Amendment as a rule of j
|
construction, i.e., one which will allow that there are
other rights than those enumerated in the Constitution, thus
allowing a source other than analogy by comparative texts; !
out he does not further explain his method, and we are left
i
without a source of law. Mr. Justice Goldberg's source is |
j
i
secretive and subjective, and thus arbitrary, roughly remi
niscent of Savigny's Volksgeist. Is Mr. Justice Goldberg
relying on a natural law source? This could be a dangerous
160
^ d o c tr in e , a s was e v id e n c e d i n t h e p a s t b y t h e n a t u r a l law
I
e x p l o i t a t i o n o f t h e s u b s t a n t i v e due p r o c e s s c l a u s e o f t h e
I
I
F o u r t e e n t h Amendment f o r t h e s u p p o r t o f a p o p u la r and t r a n -
i
s i t o r y d o c t r i n e o f t h e d a y .
| The n o v e l a p p r o a c h t a k e n i n t h i s c a s e b y M r. J u s t i c e
D o u g la s i s f o r e i g n t o o u r l e g a l m e th o d . Mr. J u s t i c e D o u g la s
jtak es t h e w r i t t e n t e x t o f t h e C o n s t i t u t i o n , and n o t b y an
i
'a n a lo g y o f la n g u a g e , b u t b y an a u r a o f c o n c e p t s , f i n d s h i s
l e g a l c o n c l u s i o n , i . e . , t h e r i g h t t o p r i v a c y . He f i n d s from
t h e w r i t t e n t e x t t h e c o n c e p t o f p r i v a c y u n d e r l y in g s e v e r a l
s e c t i o n s o f t h e e n u m e r a te d B i l l o f R i g h t s , and th u s f i n d s I
I
t h e r i g h t t o p r i v a c y i n a p en u m b ra l s e t t i n g . T hen, h a v in g
fo u n d i t i n t h i s form , h e t h e n b y a n a lo g y " d is c o v e r s " t h e
r i g h t o f p r i v a c y .
In t h e t h i r d m eth o d , and t h i s one i s q u i t e f a m i l i a r
t o u s , Mr. J u s t i c e B la c k d i s c u s s e s t h e r i g h t t o p r i v a c y a s
b e i n g w i t h i n o r o u t s i d e t h e c o n c e p t o f due p r o c e s s . C e r
t a i n l y t h i s i s a f a m i l i a r and s a t i s f a c t o r y m eth o d , and c o u l d
h a v e r e s u l t e d i n a s u c c e s s f u l G r is w o ld d e c i s i o n , b u t i t i s
n o t e n o u g h .
i
When o n e v ie w s a l l t h r e e m eth o d s i n t h e c a s e , i t i s
q u i t e a p p a r e n t t h a t t h e la c u n a i s b r i d g e d , e x c e p t b y Mr.
J u s t i c e D o u g la s , b y a d e c i s i o n - m a k i n g p r o c e s s g e n e r a l l y
161
s e c r e t i v e and d e p e n d e n t upon t h e j u r i s t . A s y s t e m o f g u i d e
l i n e s i s e s s e n t i a l t o c o n t r o l o f t h e s y s t e m , and t h i s i s
j e s p e c i a l l y t r u e in p e r io d s o f g r e a t c r i s i s ; i t i s on s u c h
k e y i s s u e s t h a t s e c r e t s o u r c e s o f la w t e n d t o becom e p r e v a -
|
l e n t . The t h r e e m eth od s o u t l i n e d i n t h i s c a s e draw from
t h e s e s o u r c e s , b u t Mr. J u s t i c e D o u g la s ' m eth o d d o e s s o t o a
i l e s s e r d e g r e e .
I
I
; Mr. J u s t i c e D o u g la s ' a n a lo g y o f f o r m u la t e d t e x t s h a s
ia p a r t i c u l a r v a l u e i n t h a t a l i m i t i s p l a c e d on t h e j u r i s t .
jA lthou gh t h i s m eth od i s q u i t e r e c e n t a t a j u d i c i a l l e v e l i n
■ihnerican la w , i t i s n o t c o m p l e t e l y new on t h e A m erican
s c e n e . C a l i f o r n i a and o t h e r s t a t e s h a v e a d o p te d u n ifo r m
'cod es o f e v i d e n c e , u n ifo r m c o m m e r c ia l c o d e s , u n ifo r m r e c i p
r o c a l s u p p o r t a c t s , and o t h e r s . A l l o f t h e s e a r e r e m i n i s -
jc e n t o f t h e c i v i l s y s t e m , w h ic h u s e s t h i s m e th o d .
One may w e l l a r g u e t h a t t h e s e a r e d i s t i n c t i o n s w i t h
o u t d i f f e r e n c e s , i n t h a t t h e j u r i s t i s f a c e d w i t h s e e k i n g
.th e s o u r c e s o f d e c i s i o n from v a l u e s o f h i s own c h o i c e . T h is
i s t h e o b j e c t i o n t o V o l k s g e i s t , t o n a t u r a l la w a p p l i c a t i o n ,
o r t o s u b s t a n t i v e due p r o c e s s , b u t a s h i s t o r y u n f o l d s t h e
[la c u n a e m u st b e f i l l e d b e c a u s e o f t h e enorm ous b r e a d t h o f
I
Ithe s o c i a l c o n f l i c t w h ic h m u st b e accom m odated t o a i d i n
i
|
jk e e p in g ou r s o c i e t y v i a b l e . The f o r m u la t e d t e x t t e n d s t o
s e t a d i r e c t i o n , and p o l a r i z e s s u p p o r t a ro u n d an i d e a , w h ic h
i n t u r n a l l o w s and r e q u i r e s t h e j u r i s t t o a p p ly v a l u e s
jw ith in t h i s fr a m e w o r k . A lt h o u g h t h e c o n c e p t o f u n e n u m e r a te d
j r ig h t s i s an im p o r t a n t d e v e lo p m e n t i n A m erica n la w , t h e
!
|
j l e g a l m eth o d o f Mr. J u s t i c e D o u g la s may b e e v e n m ore v a l u -
i
a b l e .
i I t i s t h e a u t h o r ' s b e l i e f t h a t t h i s i s a n o v e l
j
'change i n l e g a l m e th o d , and an a t t e m p t w i l l b e made h e r e t o
|
a n t i c i p a t e l e g a l a r g u m e n ts t o t h e c o n t r a r y . T h er e i s a
^ d if f e r e n c e b e t w e e n t h e penum bra1 o r e m a n a tio n a p p r o a c h and
'the " im p lie d r i g h t s " a p p r o a c h a l r e a d y q u i t e common a t t h e j
^ c o n s t i t u t i o n a l l e v e l ( e . g . , t h e " r i g h t o f a s s o c i a t i o n " b e i n g
i m p l i e d a s p a r t o f t h e c o n c e p t o f t h e F i r s t Amendment r i g h t
j
jof s p e e c h and a s s e m b ly , o r t h e n e e d o f r e s t r i c t i o n o f p u b
l i c i t y f o r o n e t o h a v e a f a i r t r i a l ) . The l a t t e r i s m ore
i n t h e n a t u r e o f r e a s o n i n g b y i m p l i c a t i o n , i . e . , d i s c o v e r i n g
and d e s c r i b i n g t h e t o t a l c o n t e n t o f a c o n c e p t . Mr. J u s t i c e
D o u g la s 1 a p p r o a c h i s a new m eth o d i n t h a t h e t a k e s a new
s i t u a t i o n from o u t s i d e t h e s c o p e o f m ere i m p l i c a t i o n and
; a n a lo g i z e s i t t o an u n d e r l y i n g c o n c e p t fo u n d i n s e v e r a l
i
t e x t s o f t h e e n u m e r a te d r i g h t s . The s u b s t a n t i v e due p r o c e s s
, ‘ a p p r o a c h ( e . g . , i n M eyer v s . N e b r a s k a ," ^ w h ic h i s s t i l l t h e
10262 U.S. 390 (1923).
l a w ) , i s c o n s i d e r a b l y d i f f e r e n t , s i n c e a j u r i s t f i n d i n g
u n d er t h a t d o c t r i n e h a s o n l y t o f i n d a s i t u a t i o n w i t h i n t h e
s c o p e o f t h i s c o n c e p t . The m y s t e r io u s and s e c r e t i v e m eans
o f h i s m eth od a r e n e v e r r e v e a l e d . T h is i s c l o s e l y a k in t o
jthe n a t u r a l la w a p p r o a c h .
I t may b e a r g u e d t h a t t h e m eth od o f M r. J u s t i c e
D o u g la s d o e s n o t d i f f e r from t h e fu n d a m e n ta l r i g h t s d o c t r i n e
w h ic h m akes s u c h r i g h t s e n f o r c e a b l e th r o u g h t h e F o u r t e e n t h
'Amendment a g a i n s t t h e s t a t e . T h is g o e s more t o t h e w e i g h t .
i
ig iv e n t h e r i g h t r a t h e r t h a n t o i t s e x i s t e n c e . T h ere a r e
i
sortie r e c o g n i z e d r i g h t s w h ic h a r e n o t e n f o r c e a b l e a g a i n s t t h e
i s t a t e s , a lt h o u g h t h e y a r e e n f o r c e a b l e a g a i n s t t h e F e d e r a l
jG overnm ent. A f u r t h e r a s p e c t o f t h i s d o c t r i n e i s t h a t t h e
|Court h a s r e c o g n i z e d r i g h t s a s b e i n g fu n d a m e n ta l w h ic h a r e
j
Inot i n c l u d e d i n t h e s p e c i f i c s o f t h e B i l l o f R i g h t s . A g a in ,
t h i s d i f f e r s from t h e D o u g la s m eth o d , i n t h a t t h e " fu n d a
m e n t a l r i g h t s " a p p r o a c h i s a m ethod o f n a t u r a l la w , and
c l o s e l y a k in t o t h e s u b s t a n t i v e due p r o c e s s a p p r o a c h . The
s o u r c e o f t h e la w i n t h e l a t t e r i s s e c r e t i v e , and c a n a t
b e s t o n l y l i m i t t h e j u r i s t w i t h i n t h e r e s t r i c t i o n s o f n a t u -
: I
r a l la w , much o f w h ic h d e p e n d s on t h e p e r c e p t i o n s o f t h e ■
j j u r i s t . T h is d i f f e r s c o n s i d e r a b l y from Mr. J u s t i c e D o u g l a s ’
p en u m b ral a p p r o a c h , b e c a u s e i n t h e form er t h e j u r i s t i s
164
released from the limitation of a text, and thus the source
of law becomes subjective, while in the penumbral approach
i
I
jthe enumerated text acts as a limitation upon the jurist,
i Inherent within any method of legal reasoning, and
|in any legal system, is the protective mechanism of the dia
lectic. It tends to limit the jurist, and to refine con
cepts and free them to some degree from his personal preju
dices, thus alleviating some of the effects of subjectivity.
: i
Dialectic is not legal method as such; it is more in the
nature of logic: not a mere defense of fixed positions, but
rather a discussion of facets of opposing premises which
reduces the positions in number, thus allowing certain
premises to emerge as most reasonable while others are know-
iingly disregarded. In essence it is a means of groping for
[truth. In order for it to have any validity as a truth-
l
finding method, this discussion must occur in an atmosphere
|
of open-mindedness with allowance for a full hearing between
the parties, with concessions and adjustments of positions.
It is hoped that the Chambers of the United States Supreme
Court are such a place. The course of such argumentation
usually results in a refinement of contradictory statements
[to two or so, from which a conclusion emerges which is the
i
[most reasonable one. This is common in the law.
165
Although most formal texts on legal reasoning in
clude extensive consideration of analogy, induction, and
deduction, it is seldom that dialectic reasoning is dis
cussed, and yet the daily practice of law includes many
examples of it, and many of our most famous decisions re
flect it. For example, McCulloch vs. Maryland"*''*' dealt with
power to tax by states, and this could not be deduced from
positive provisions of the Constitution, but was done by
dialectics. Chief Justice Marshall simply chose the premise
necessary to save the Union, and held it to be dangerous to
allow the alternative of the power of the states to tax
j
federal instrumentalities. Many of the principles of law so|
i
common to us (e.g., the idea of "attractive nuisance," the
manufacturer's liability for defective products, the shift
of burden of proof in malpractice suits to the medical pro
fession), have been adopted as a result of use of the dia
lectic method. The California Supreme Court in Escola vs.
12
Coca Cola represents a good example in its conclusion, in
reference to bursting bottles, by saying:
Against such a risk there should be a general and
constant protection, and the manufacturer is best
| H 4 Wheaton 316 (1819) .
1224 Calif. 2nd 453, 462 (1944).
166
13
suited to afford such a protection,
jlhe increasing recognition of unenumerated rights is a re-
i
Suit of a dialectic response to modernity and modern in-
)
I
fringements on the individual. Such infringements, as those
against the rights to privacy, to travel, and to public
welfare call for new normative positions at law. No matter
how much rhetoric is elicited and placed in a decision, a
new normative principle has been adopted and enforced, and
|it was arrived at by the refinement of various alternative
positions. These rights are not self-evident, and may them
selves vie and recede when future normative positions are
taken by the law.
The recognition of unenumerated rights is here, and
a variety of legal method is available to secure the future
;of their recognition. The most obscure aspect of this rec
ognition is which method will dominate; it appears now that
several methods will combine in a manner palatable to his
tory, society, and the law.
Superficially, the concept of unenumerated rights
seems to be a carte blanche given to the judiciary to state
and assert what is really no more than the personal
■*-^Ibid., p. 462.
167
p r e f e r e n c e o f t h e j u d g e . I t d o e s a p p e a r t o b e s o a t f i r s t
^ glan ce, and y e t t h i s l e g a l m eth od i s a p r o d u c t o f r e a s o n i n g
!
jknown t o p h i l o s o p h e r s t h r o u g h o u t h i s t o r y . I t i s a s o l d a s
i
s p e c u l a t i o n and t h o u g h t , and h a s b e e n a s s o c i a t e d w i t h s o c i a l
i
p r o b le m s a s l o n g a s t h e y h a v e b e e n know n. S u ch an o b j e c t i o n
I
jdoes n o t r e c o g n i z e t h e f a c t t h a t t h e la w and l e g a l r e a s o n i n g
t h r o u g h o u t h i s t o r y , no m a t t e r w h a t i t s m eth o d , h a s b e e n t e n
t a t i v e , u n c e r t a i n , and s u b j e c t t o r e v i s i o n . T h is i s t h e |
■nature o f t h e la w , and i t s c o n t e n t , when i t p u r s u e s i t s w ork
;of f i n d i n g w o r k a b le s o l u t i o n s t o t h e c o n f l i c t s o f men i n
t h e i r s t a t u s a s i n d i v i d u a l s o r g r o u p s . T h is o b j e c t i o n i s
f u r t h e r b a s e d on a m y t h o l o g i c a l im age t h a t t h e l e g a l p r o c e s s
i s im bued w i t h an i n h e r e n t and c o n t r o l l i n g r e a s o n w h ic h
l
iSomehow s e t s i t o u t s i d e t h e n o rm a l p i t f a l l s o f f a l l i b l e m en.
T h is i s s im p ly n o t t r u e .
Much o f t h e c o n t r o v e r s y s u r r o u n d in g A m e r ic a n c o n
s t i t u t i o n a l la w , and e s p e c i a l l y u n en u m era ted r i g h t s , i s t h a t
t h e s u b j e c t m a t t e r i t s e l f i s c o n t r o v e r s i a l . The c a s e s i n
v o l v e d r e f l e c t d e e p c o n f l i c t , and t h e d e c i s i o n s c a l l f o r
c h a n g e . By n e c e s s i t y t h e l e g a l m eth od r e q u i r e s d e l v i n g i n t o
n o n - f o r m a l s o u r c e s o f la w w h ic h a r e n o t n e a r l y a s p a l a t a b l e
t o t h e p u b l i c a s f o r m a l s o u r c e s . When a d e c i s i o n c a n b e
I
jmade upon a t e x t u a l i n t e r p r e t a t i o n , i t i s more p l e a s a n t t o
168
the public than when made upon such non-formal sources as
natural law, custom, and general principles of justice.
Underlying this is a social structure and value system upon
^vhich the basic premises of the judge rest. All these con-
i
jsiderations combine in a complex and controversial manner.
But the concept of unenumerated rights as a constitutional
'doctrine has been forged and is upon us, and its development
jis increasingly rapid.
i
!
I
I
169
BIBLIOGRAPHY
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i
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172
Davidson, Janice R. "Regulation of Sexual Conduct by With
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I
I
I
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i
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|
Westin, A. F. "Science, Poverty and Freedom: Issues and j
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i
I
I
Government Publication
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1964 .
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Afroyim vs. Rusk. 387 U.S. 253 (1967) .
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(1965) .
Application of President and Directors of Georgetown Col
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795 (1943) .
Baker vs. Rusk. 296 F. Supp. 1244 (1969).
175
Bellei vs. Rusk. 296 F. Supp. 1247 (1969).
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Department of Mental Hygiene vs. Kirchner. 380 U.S. 194
(1964) .
Department of Mental Hygiene vs . Kolts . 55 California Re
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Entrick vs. Carrington. 19 Howards State Trials 1029
(1679) . “
Escola vs. Coca Cola. 24 Calif.453 (1944).
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House of Tobacco vs. Robert S. Calvert. 394 S .W. Rpts.^nc^
657 (1965) .
In re Brooks. 205 N.E.^nc^ 435 (1965) .
In re Dudley. 48 California Reporter 790 (1966).
Jackson vs. Dorrier. 424 F^nc^ 213 (1970).
Johnson vs. State. 114 A^nc^ 1 (1955).
Johnson vs. United States. 333 U.S. 10 (1947).
176
Katz vs. United States. 389 U.S. 347 (1967) .
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Nishikawa vs. Dulles. 356 U.S. 129 (1958).
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Osborn vs. United States. 385 U.S. 323 (1966).
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People vs. Frazier. 64 California Reporter 447 (1967).
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Perez vs. Brownell. 356 U.S. 44 (1958).
177
Poe vs. Ullman. 367 U.S. 497 (1960).
Powell vs. Columbia Medical Center. 267 N.Y.S.^n<^ 450
(1966) .
Roberts vs. Clement. 252 F. Supp. 835 (1966).
Rochison vs. California. 342 U.S. 165 (1952).
Schmerber vs. California. 384 U.S. 757 (1966).
Schneider vs. Rusk. 377 U.S. 163 (1964).
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Sherbert vs. Verner. 374 U.S. 398 (1963).
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Snyder vs. Commonwealth of Massachusetts. 291 U.S. 91
(1933) .
Stanley vs. Georgia. 394 U.S. 557 (1969).
Stevenson et al. vs. Board of Education of Wheeler County^
Georgia. 426 F2nd 1154 (1970).
Thompson vs. Shapiro. 392 U.S. 923 (1968).
Tinker vs. Des Moines School District. 393 U.S. 503 (1969).
Trop vs. Dulles. 356 U.S. 86 (1958).
Onion Pacific Railroad vs. Botsford. 141 U.S. 250 (1891).
Onited States vs. Laub. 385 U.S. 475 (1967).
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Willner vs. Committee. 373 U.S. 102 (1963).
kernel vs. Rusk. 381 U.S. 1 (1962) .
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Asset Metadata
Creator
Swide, Fred Abraham
(author)
Core Title
A Developing Pattern Of Unenumerated Individual Rights In The United States Constitution
Degree
Doctor of Philosophy
Degree Program
Political Science
Publisher
University of Southern California
(original),
University of Southern California. Libraries
(digital)
Tag
OAI-PMH Harvest,political science, general
Language
English
Contributor
Digitized by ProQuest
(provenance)
Advisor
Christol, Carl Q. (
committee chair
), Krinsky, Fred (
committee member
), Schutz, John A. (
committee member
)
Permanent Link (DOI)
https://doi.org/10.25549/usctheses-c18-557999
Unique identifier
UC11362450
Identifier
7206114.pdf (filename),usctheses-c18-557999 (legacy record id)
Legacy Identifier
7206114
Dmrecord
557999
Document Type
Dissertation
Rights
Swide, Fred Abraham
Type
texts
Source
University of Southern California
(contributing entity),
University of Southern California Dissertations and Theses
(collection)
Access Conditions
The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the au...
Repository Name
University of Southern California Digital Library
Repository Location
USC Digital Library, University of Southern California, University Park Campus, Los Angeles, California 90089, USA
Tags
political science, general