Shostack + Friends Blog Archive


Roberts on the Right to Privacy

The term “right to privacy” has, in the debate over the Supreme Court, become a code-word for a woman’s right to abortion (or more specifically, to a liberty to choose without government interference.)

As someone who believes that privacy is broader than that, I was very pleased to see that Roberts said:

“Senator, I do. The right to privacy is protected under the Constitution in various ways. It’s protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected. It’s protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise. It protects privacy in matters of conscience. It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops. And in addition, the court has — it was a series of decisions going back 80 years — has recognized that personal privacy is a component of the liberty protected by the due process clause. The court has explained that the liberty protected is not limited to freedom from physical restraint and that it’s protected not simply procedurally, but as a substantive matter as well. And those decisions have sketched out, over a period of 80 years, certain aspects of privacy that are protected as part of the liberty in the due process clause under the Constitution.”

I’m heartened to see that Roberts is thinking in this way about privacy. He’s probably quite concerned about his privacy, and silly things he may have said or done He probably doesn’t have many of those skeletons in his closet. Nonetheless, he’s very aware that something that he thinks of as minor, could, if publicized, derail his nomination. And so he sees a value of privacy.

Quote taken from the Privacy Law Blog, “John Roberts & the Right to Privacy – Part 5.” Ray Everett Church has more in “Nominee Says Constitution Includes Privacy Rights.” The slide is from “ Paying for Privacy: Consumers and Infrastructures” which I presented at the 2nd workshop on economics and information security.

2 comments on "Roberts on the Right to Privacy"

  • beri says:

    I don’t believe one single word taht John Roberts has said so far. His smarmy “I can’t comment on that subject since it might come before me on the court” is a dodge and I’m sorry that no one has called him on it yet.
    He’s a real conservative; you can believe that Cheney and Rumsfeld and Rove grilled him at the White House and he didn’t dodge the questions then.
    As to privacy: I wonder how he would rule on “no warrant I have a feeling about this guy” searches in your home without notice before or after. I wonder how he would rule on government computer systems that “sniff” for bad words in your email. I wonder if someone brought a case about lack of privacy protection for records of citizens, how he would rule. he’d probably decide in all cases that “terrorism” makes all this acceptable and privacy be damned. Right now he’s playing to the stupid and gullible who believe his evasions and pompous statements. it’s easy to wax poetic about legal theories but such commencement address platitudes don’t tell us anything about what he really believes.
    On the other hand, the history of the court is littered with the bodies of those who changed their tunes once they sat on the bench. (I was just reading an interesting article about Roosevelt and the Supreme Court before 1936….)

  • David Brodbeck says:

    He’s a real conservative; you can believe that Cheney and Rumsfeld and Rove grilled him at the White House and he didn’t dodge the questions then.
    Exactly. You can be sure that he was nominated based on his personal opinions and how he said he’d rule on various issues. But of course now the Senate, for some reason, isn’t allowed to find out what his opinions are, or what commitments he’s made to the President.
    I also found it a bit spooky when he said he wouldn’t comment on Bush v. Gore because he felt a case like that might come up again. God forbid.
    Basically, I don’t like him. I think he’s the best we’re likely to get out of Bush, though. I’m guessing most Democratic Senators will feel that way, too, and there’ll be no attempt to filibuster him.

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