Beyond Privacy

If you study the Constitution, you can have no doubt that it was intended to create a democratic central Government, give it a job to do and then limit its power. It was a radical idea; there wasn't another one like it anywhere. By assigning the Government specific functions--regulation of commerce, taxation, war--the document also tells the people which rights are retained by them. Read the history--it allows for no confusion about the framers' intention. With this in mind, we asked Harvard constitutional-law professor Laurence H. Tribe some questions about the new Supreme Court and what its interpretation of the Constitution may mean to all of us.

It was not without some regret that we asked Tribe to sit for an interview. He was in the middle of his first sabbatical in 20 years (he has taught at the Harvard Law School since he was 27). His idea of relaxation? To write a 1000-page supplement to his treatise "American Constitutional Law," read "Anna Karenina," write a few articles, dabble in advanced mathematics and prepare a few pro bono cases to argue before the Supreme Court. Tribe has prevailed in 13 of the 18 cases he has presented to the Court. In an era in which the most important qualification for a seat on the Supreme Court has become how little you've said about controversial issues, Tribe is no stealth candidate: He just published a 270-page tome, "Abortion: The Clash of Absolutes."

We met in an office filled with copiers, fax machines, computer terminals and cardboard boxes bearing Magic Marker labels such as "Rust vs. Sullivan." Whatever wall space was not covered by floor-to-ceiling bookcases was filled with mementos of a life in law: letters of thanks from Justices who found guidance in his arguments, an autographed profile of Justice William Brennan and, appropriately, an engraving of the Constitution.

[Q] Forum: Let's start with a parable. You contract with a garden service to take care of your lawn. You go home one day and find the gardener looking through the windows. You let it pass. You go home the next day and find that he has yoked your children to a plow, rifled the contents of your safe, your Rolodex and your library and informed your wife when and how she can procreate. When you complain, he hauls out the contract between you and says, "Nowhere in here is mentioned the right to privacy." The next day, your gardener is appointed to the Supreme Court. Are we, as citizens, in this sort of trouble yet?

[A] Tribe: The Constitution, like any other written document, can't give you within its own four corners the spirit in which it is to be read. Unless you start with some general understanding of whether the Constitution has one tilt or another--that those provisions that deal with the boundaries between Government power and the individual are to be read one way or another--you have to be mystified by the document.

[Q] Forum: Explain how the tilt affects us as individuals.

[A] Tribe: It makes all the difference in the world if you start with the premise that the document cedes only certain limited powers to the Government, and that the powers that it cedes are to be quite narrowly construed--and that there is a reservoir of liberties not explicitly spelled out, and not frozen in time, that are presupposed by the whole text. Or you can start with the notion that the Constitution is a contract complete within its four corners, and that rights are to be derived from that contract entirely. If you start with the premise that the Government has all the power unless explicitly denied in the document, that majority rule is the norm and that rights are the exception, then it is a mystery that the document would protect marital intimacy, or nonmarital intimacy between consenting adults; whether it would have anything to say about freedom of thought, about privacy in the broadest sense, because, after all, it doesn't say anything about it.

[Q] Forum: One commentator has suggested that the founding fathers envisioned an island of Government surrounded by a sea of rights. Today's conservatives read the Constitution and see islands of rights surrounded by a sea of power.

[A] Tribe: I agree in general, but I do not like the impulse to ground that in what the framers of the Constitution envisioned. The fact that they personally had one or another vision is interesting, but not decisive. It's not our task to plumb the vision of giants long dead in order to figure out where we start. It's to take personal and collective societal responsibility for the orientation we will take toward this document.

I would agree that those who want to tether their picture of a sea of power and little islands of right to the original intent are Borking up the wrong tree. That is clearly not something they can ground in history.

[Q] Forum: What's the danger of that interpretation?

[A] Tribe: Well, a Government that is all powerful except for the small list of citizens' rights that can be identified in fine print has a kind of bargaining power in ordinary encounters with human beings that is demeaning and degrading, even if in the end it doesn't pull out the gun and blow your head off.

[Q] Forum: Alexander Hamilton argued against naming any freedoms in the Bill of Rights for fear that the Government would come to view that list as the sum total of protected rights. Madison wrote eight amendments specifying freedoms, then ended with the ninth: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." What did Madison leave unsaid in the Ninth Amendment?

[A] Tribe: I think the whole point is that he didn't have a residual list that he forgot to mention. The Ninth Amendment isn't a P.S. that says, "There are other rights that I'm too busy to write down. Look through my notes if you want to find out what they were. See you later; I'm out of here." Rather, the Ninth Amendment is an affirmation of the limited nature of the limited-Government character of the Constitution as a whole. It is a rule about how to read the document, a rule mandating that you cannot read the exclusion of certain rights as having any decisive significance. It is a textual answer to those who say a certain right isn't mentioned. To go back to your parable, it's almost as though in your hypothetical contract with the gardener there had been a clause similar to the Ninth Amendment that said, "The failure to mention in this contract that my family retains certain rights shall not be used to deny or disparage their existence." And when you come back and find the gardener abusing your children, the gardener, citing the current conservative position, says, "Can you show me that the right not to do that to your family is one of the rights you had in mind?" The right answer to him wouldn't be "I'll find it in my notes somewhere." That's putting the burden on the wrong foot.

[Q] Forum: And yet not a day goes by without some conservative's smugly nothing that "the right to privacy is nowhere to be found."

[A] Tribe: Nor can you find the words pregnancy, reproduction, sex, bodily integrity or procreation. Neither do you find the words freedom of thought, rights of parenthood, liberty of association, family self-determination. And yet nearly everyone supposes that at least some of these dimensions of personal autonomy and independence are aspects of liberty, which the Fourteenth Amendment says no state may deny to any person without due process of law.

[Q] Forum: Unfortunately, five of the Justices on the present Supreme Court have no respect for unenumerated rights. What can we expect?

[A] Tribe: The nowhere-to-be-found tool that the conservatives on the Court use to deny the unenumerated rights essentially requires them to overrule Roe vs. Wade, the rights to reproductive freedom that stem from Roe vs. Wade, to reaffirm Bowers vs. Hardwick--the right of states to prohibit sodomy--and decisions that would apply to heterosexual, marital, nonmarital, extramarital and premarital intimacy. It would also roll back the decision in Griswold vs. Connecticut, the birth-control decision.

[Q] Forum: How does the current natural-rights argument fit into the Court's approach to privacy issues?

[A] Tribe: I don't have an allergy or aversion to the idea that there are rights we have just because we are human beings. The idea that the Constitution was written against an understanding that there are certain rights that are very fundamental, very basic and not subject to political bargaining--call them natural rights or rights derived from natural law--it's not that idea I find distressing. It's just the particular way that Clarence Thomas and people like him tend to invoke natural-rights rhetoric to justify conclusions that are inimical to freedom, privacy and equality.

[Q] Forum: Would you give us an example?

[A] Tribe: The natural-law view says that it is nature that dooms women to pregnancy as a consequence of sex. It's not the state's decision that women, unlike men, may become pregnant from intercourse. That's life, not law. And because it's life, there's nothing oppressive about having the law mirror life. There are decisions in the Supreme Court about occupational freedom for women that suggest that because it was nature's plan that women be breeders and not earners, that a law excluding women from the occupation of being an attorney is perfectly natural in that it carries out God's plan. I am not concerned about the religious origins of some of the natural-law views. But I am concerned with a set of views whose invocation of nature tends to be part and parcel of the dangerously imprisoning view of the Constitution, of law as simply the mirror of the way in which the powerful view nature.

[Q] Forum: Let's look at the history of the right to privacy. Some commentators suggest that the sexual revolution happened because of the three Ps--the pill, penicillin and Playboy. The real change, however, was prompted by a series of Supreme Court decisions elaborating the right to privacy, decisions that struck down laws prohibiting the dissemination of information on birth control, the sale of contraceptives to singles, the possession of erotica in the sanctity of one's home. In Eisenstadt vs. Baird, the Court wrote, "If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted Governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." That's a good definition. Is it the only one?

[A] Tribe: There are many, but the most famous is Justice Louis D. Brandeis' declaration that "the makers of the 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 satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, 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."

Justice John Paul Stevens, quoting legal philosopher Charles Fried, argued that "privacy embodies the moral fact that a person belongs to himself and not others nor to society as a whole." Privacy is the boundary between the individual and society. It is a zone of protection in which respect, love and friendship flourish. It is a zone in which individuals make decisions.

Some writers focus on the inward qualities of repose, sanctuary and intimate decision--freedom from unwanted stimuli, the protection against intrusive observation, autonomy with respect to the most personal of life choices. But there is an outward quality to privacy that I call personhood, that invokes such words as autonomy, identity, dignity. The Constitution contains no definition of person, no discussion of personhood, perhaps because these concepts were deemed too obvious to require elaboration. Not only do you have the freedom to shape your inner life, to control the face you present to the world, but you also have the freedom to have an impact on the world.

At the core of this is an evolving concept of a sphere of personal space that is home to activities that have so much more profound an impact on the lives and liberties of those who choose them. Whether it's how to bring up your children or how you choose to spend your intimate times with another adult, the choices make much more difference in the shaping of the identity of the person who chooses them than they do in the shaping of the society. Except, of course, from the point of view of the society's discomfort with the choices these people have made. If liberty is to be overridden by the mere fact of traditional disapproval or perceived discomfort, then it is emptied of any substantive significance.

[Q] Forum: Judge Robert Bork says that the people who champion privacy leave unanswered the question "Privacy to do what?" Then he recites a litany of conservative demons: privacy to abuse your children, privacy to inject addictive drugs, privacy to get together and fix prices, privacy to commit crimes against nature.

[A] Tribe: At one level, I would say that someone who cannot intuitively see the difference between fixing prices in a hotel, abusing children and sex between consenting adults is out of touch with the Twentieth Century idea of limited Government. There is a dramatic difference, and if they can't see it, that's their problem.

[Q] Forum: Is the proper answer to Bork's "Privacy to do what?" a simple reading of the Fourth Amendment, "None of your business without a warrant"?

[A] Tribe: In Bowers vs. Hardwick, Georgia had reason to believe that the state's sodomy laws were being violated and it could have gotten a warrant. But the real question is what Georgia was doing in a man's bedroom--not why it didn't have a warrant. A warrant is just a procedural protection. Why would we bother having a set of procedural protections for the privacy of the home if the Government could regulate every last detail of what you do in the privacy of your home? If it could regulate everything that is not specifically forbidden by some right enumerated in the Constitution, it could make it a crime to sleep past eleven or to walk around in the nude, and get search warrants to make sure that no one was slothful, that everyone was dressed. The liberty invoked in the Fourth Amendment protects the person, not the place.

[Q] Forum: A privacy that includes repose--freedom from unwanted stimuli--is clearly a two-edged right. The Reverend Donald E. Wildmon campaigns to control airwaves, starting from the couch in his living room. Is he extending his privacy too far?

[A] Tribe: I think the relevant issue here is the complicated one. When is it too burdensome to make people just avert their gaze? Clearly, the right not to be assaulted by stimuli you find offensive, that would put you on the spot and require you to expose something about your inner personality that you should be allowed to keep to yourself, justifies that there be some Government limits on things that people do that can transform you, willy-nilly, into a captive audience. A rule that Playboy cannot insist on sticking the centerfold under everyone's door as a subscription inducement but that Playboy has to find less intrusive ways of reaching a voluntary audience would be a rule that wouldn't offend me very much. But what is dangerous is allowing the Government to put the burden on the individual who wants to receive Playboy. This person is simply exercising his outward-looking aspect of personhood. Similarly, a person may wish to express him or herself not behind closed doors but in another way, on the airwaves or in print. To force these outward-looking persons to make an appointment in advance with their audience is too much.

As long as there is a reasonably effective way for people to avoid exposure to something that they would find intrusive and invasive, and to protect their own kids from it--that is the most the Government has the right to insist on. For the Government to insist on going the extra mile and, in effect, trying to purify the world in accord with what the "normal" adult ought to invite and want to see is profoundly at odds with the First Amendment.

[Q] Forum: But the contemporary message seems to be that we're allowed to have sex, we're just not allowed to talk about it or refer to it on television--to bring it into the public realm.

[A] Tribe: I think what builds the bridge between the privacy that is presupposed--or unenumerated--by the Constitution and speech, which is explicitly mentioned, is a continuous web of rights that focus on the outward-looking character of liberty. There is a continuum between the private and intimate expression with someone you care about, in which the only audience is the two of you, and the broader expression of personhood, in which the audience is all who want to be exposed to a certain idea or vision. I don't think you should see speech as purely and quintessentially public and sexual expression as purely and quintessentially private. I think there is a continuum.

It's a mistake to think of privacy, and the values that it represents, as somehow equated with secrecy, silence and darkness. In the darkness, there can be grave abuses. The fact that it happens in the dark does not make it any more tolerable. And in the light, there can be magnificent expression, and the fact that its subject is sexual is not, and should not be, a basis for its repression.

[Q] Forum: Let's take a look at freedom from unwanted intrusion. A couple in a Florida condo was video-taped through their blinds by a neighbor. One commentator said that most of America would think that the bizarre act was the video-taping, but in Florida, the bizarre act was having sex in the bathroom.

[A] Tribe: The whole distinction between the private and the public is somewhat problematic. Inescapably, much of what happens in private affects the public realm. And inevitably, as long as someone is not completely solitary and simply having a daydream all by herself, there are possibilities--no matter how much seclusion and secrecy there is--of the kinds of abuse of other people's personalities and integrity and rights that society at large may have a legitimate interest in. So I don't really see the concept of privacy, though it's a popular term and it's evocative and I don't intend to abandon it, as fully capturing the sense of personal freedom and equality that I think ultimately is--and should continue to be--protected by the Constitution. That's why, in particular, those who say, "Well, the word privacy is nowhere mentioned," don't move me at all. I would have been just as happy to have these rights defined as rights of liberty or as privileges of citizenship in the Fourteenth Amendment.

There are two aspects to the personhood I mentioned earlier: One is the heightened right to do whatever you want, subject to limits that protect others, behind closed doors when you're not impinging yourself on unwilling viewers. And the other is the right to experience and fulfill intimate and serious personal relationships and associations with others in broad daylight and in public. But when what's involved is fulfilling intimate associational values behind closed doors, then constitutional protection should be at its maximum. The scope of that protection may change when the door is opened, but it shouldn't simply end. And if what somebody is doing is simply sleeping late or walking around in the nude or, you know, doing any number of other things that have nothing to do with human association, the fact that it's in private should create an even higher hurdle for the Government to jump over to explain why it's intruding.

[Q] Forum: Conservatives always complain that we invent rights helter-skelter, and yet they do the same. Justice Byron R. White views the right to sexual intimacy involved in the Hardwick case not as a right of privacy but as a right to homosexual sodomy--and rejects that. Bork views birth control as a violation of the right to practice abstinence.

[A] Tribe: Increasingly, the Rehnquist Court's stratagem for shriveling liberty and emptying it of its capaciousness and significance is to define the asserted right at the most absurd level of specificity, factoring into that definition all of the countervailing interests. Justice Scalia in one case does not talk about abortion just in terms of the right to it but says--suggests, anyway--that what we're talking about is the right to kill a fetus. Where is that right mentioned?

[Q] Forum: Since you mention abortion, would you discuss Roe vs. Wade, its importance and its future?

[A] Tribe: I think the Court was fundamentally right in Roe vs. Wade. The decision was a landmark in the history of liberty. Its demise will be a tragedy. Not because I have less sympathy, I think, than some others for the helpless unborn. I don't agree with the argument that a fetus is just a bunch of protoplasm. I just think the profound choice that confronts the woman should be up to her, at least in early pregnancy. And I think any conception of liberty that does not encompass the right to resist forced pregnancy is an incredibly barren and empty conception of liberty. Any legal regimen that forces women and, by the nature of things, women alone, to use their bodies as involuntary incubators for future generations is a form of enslavement.

[Q] Forum: The writing in the Court's privacy decisions has always seemed so eloquent in its discussions of freedom and liberty. By contrast, the writing of the current Court sounds like that of so many bureaucrats typing memos. Why do you think this is so?

[A] Tribe: The writing that you find beautiful, that I often find celebratory of human freedom and the human spirit, is viewed by people on the other side of a cultural and political divide as decadent, threatening, degrading and fundamentally disrespectful of the people and of democracy. To them, the writing you may be dismissive of, that I find unconvincing, is the quintessence of what courts in a society devoted to democracy should say. So we shouldn't underestimate--especially when the judiciary is going to be on the other side of that divide--the force of the other argument. We have to reach across that divide and convince people that what they find threatening to their way of life, their stability, their roots, their feeling of connection, isn't all that threatening. And that the Government to which they are ceding power may return to feed on them.

"A government that is all powerful except for the small list of rights that can be identified in fine print has a power that is demeaning and degrading, even if in the end it doesn't pull out the gun and blow your head off."

"The Ninth Amendment isn't a P.S. that says, 'There are other rights that I'm too busy to write down. Look through my notes if you want to find out what they were. See you later; I'm out of here.'"