Thursday, January 20, 2011

Constitutional Putty

By Mike Dorf

In yesterday's SCOTUS opinion in NASA v. Nelson, Justice Alito's majority opinion assumes that there is a constitutional right against government collection and disclosure of private information--what the Court calls "informational privacy"--but that the procedures used by NASA to screen job applicants did not violate that assumed right because: a) the government had a legitimate basis for seeking the information; and b) safeguards are in place to prevent the government from disclosing private information to third parties.

There is no dissent from the result but Justice Scalia, joined by Justice Thomas, goes at Justice Alito's reasoning pretty hard in a concurrence in the judgment.  Much of the Scalia opinion attacks the majority for assuming the existence of a constitutional right rather than first deciding whether it exists and only evaluating the particulars of the case if the answer is yes.  Eugene Volokh nicely excerpts the relevant portions of the concurrence in the judgment and the majority opinion.

On the procedural point, I'll just say that it's hard for me to see why anyone would get so worked up.  Certainly there are circumstances in which it's sensible to assume the answer to one question in order to decide another, and circumstances in which it's better to decide the threshold issue first.  The Court (unanimously and sensibly) said something of this sort with respect to qualified immunity two years ago in Pearson v. Callahan.  I could see how one might think that in NASA v. Nelson it would have been better to decide rather than assume the answer to the threshold question--as Justice Scalia thinks--but it seems a bit over the top to suggest, as Justice Scalia does, that the Court's procedure harms its "image."  I daresay that the vast majority of Americans will never hear of NASA v. Nelson, much less follow the decision procedure with sufficient care for it to have any impact whatsoever on their image of the Court.  Indeed, were it not for Justice Scalia's having called attention to the procedure here, even most Court-watchers would have likely paid the issue no heed.

To my mind, the more interesting action in Justice Scalia's concurrence in the judgment concerns the merits.  Justice Scalia says that there is no right to informational privacy, which, when pressed, the respondents' lawyer had located in the Fifth Amendment's Due Process Clause.  Justice Scalia will have none of that.  After all, he thinks that there is no such thing as substantive due process--except insofar as it incorporates the Bill of Rights, which he accepts because it permits him to strike down state gun control laws of stare decisis.

What about the Fourth Amendment?  In protecting "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," doesn't it obviously manifest a concern with privacy, including the informational sort?  Justice Scalia responds that it does, but he (correctly) notes that a government request that third parties provide the government with information about a job applicant is not a "search" (or for that matter, a "seizure") within the meaning of the Fourth Amendment.  So Justice Scalia is right that the Fourth Amendment itself doesn't protect informational privacy.

Does that mean that nothing in the Bill of Rights protects informational privacy against other methods by which the government might acquire information?  Justice Scalia quotes County of Sacramento v.  Lewis to dispatch this possibility:
Where a particular Amendment provides an explicit textual source of constitutional protection against  a particular sort  of  government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.
Justice Scalia then pithily sums up the foregoing principle from Lewis thus: "Courts should not use the Due Process Clause as putty to fill up gaps they deem unsightly in the  protections  provided by other constitutional provisions."

To my mind, that is a fair use of Lewis, but Lewis itself is profoundly wrong--or at least quite inconsistent with any sensible approach to unenumerated rights.  That's fine for Justice Scalia, I suppose.  He doesn't believe in unenumerated rights--notwithstanding the fact that the Ninth Amendment looks very much like putty.  But he hasn't (yet) persuaded a majority of the Court to abandon substantive due process outside the context of incorporation of the Bill of Rights, and so Lewis should be regarded as highly problematic.  It is at the very least hard to square with the key passage of the opinion widely regarded to be the font of modern substantive due process, Justice Harlan's dissent (on procedural grounds) in Poe v. Ullman.  He wrote:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.
It is this outlook which has led the Court continuingly to perceive distinctions in the imperative character of Constitutional provisions, since that character must be discerned from a particular provision's larger context. And inasmuch as this context is one not of words, but of  history and purposes, the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. 

Putty indeed.


Hashim said...

I don't get it -- as a general matter, isn't the Lewis rule just a reiteration of the eminently sensible negative inference that intentionally imposed limitations on a specific constitutional provision should not be eviscerated by invoking a more general constitutional provision? In other words, one can believe that the Ninth Amendment protects certain unenumerated rights that are otherwise wholly unaddressed in the Bill of Rights (e.g., Troxel, Pierce, Griswold), while simultaneously believing that the Ninth Amendment shouldn't be used to wipe out the intentionally selected limitations of the other provisions of the Bill of Rights. To take a trivial example, surely the $20 floor in the Seventh Amendment should squarely foreclose any attempt to claim a Ninth Amendment right to a civil jury in cases involving less than $20. So, here, the question just becomes whether the fact that the Fourth Amendment is limited to searches and seizures creates a valid negative inference that informational privacy lacks any additional protection above and beyond the freedom from unreasonable searches and seizures. You might disagree with Scalia's inference, but that just means you think the 4A doesn't reflect a conscious decision to leave such privacy unprotected, not that the 4A does reflect such a decision and yet the 9A can be used to plug the hole the Framers intended. In other words, you wouldn't be disagreeing w/ the fundamental principle of Lewis, just the rigor with which is applied.

Michael C. Dorf said...


All the work in your formulation is done by the words "wholly unaddressed." But to say that the right at issue in Griswold, say, is "wholly unaddressed" by the enumerated rights requires one to read the scope of the enumerated rights narrowly, and there is no self-explanatory account of why one chooses that narrow reading. In other words, you need an account of what makes some asserted right "covered" but not protected by some specific provision. For what I regard as a very persuasive explanation of why this is unworkable--or at least unjustified in the Court's jurisprudence--see Peter Rubin, Square Pegs and Round Holes: Substantive Due Process, Procedural Due Process, and the Bill of Rights, 103 Colum L Rev 833, 858-62 (2003).

My next comment will address your 7th Amendment example.

Michael C. Dorf said...

Your 7th Amendment example works because it covers nothing. Nobody sues for less than $20 these days, unless suing for injunctive relief and thus not protected at all by the 7th Amendment, because it doesn't apply to equity. Ah, you say, but would the courts be warranted in finding a jury trial right in equity. My answer would be that it depends on whether such a right would satisfy the general criteria for recognizing rights.

I'll give you an example from the other side. Does the 2nd Amendment protection for a "right to bear arms"--understood post-Heller to include a right to possess firearms for armed self-defense--preclude recognition of a 9A or SDP right to UNARMED self-defense? I would hope the answer is no.

You can say that this illustrates your point: I'm simply reading the 2nd Am "rigorously" so as not to reflect a limitation of the sort that Justice Scalia attributes to the 4th Am. I suppose I could accept that, but the usual thrust of Lewis is much more restrictive (as Rubin illustrates with lower court opinions). It is typically read to mean that BoR provisions presumptively give rise to the negative inference you describe. I read the 9th Amendment as mandating the opposite presumption.

Joe said...

The main opinion in Griswold argues that privacy IS addressed by the BOR. Goldberg joined it, so his 9A concurrence does not dispute the point. Douglas argues that privacy is a necessary part of a full enjoyment of various enumerated rights. I think this deserves more respect than it often gets.

I don't understand why earlier amendments enumerating things should "squarely foreclose" rights referenced in a later amendment, one that adds that enumeration alone isn't the test.

[The same applies in the death penalty context. Earlier implications that it is allowed don't override the 8A, which suggests that it might not be, if the means violates the amendment.]

This is why I think Thomas' concurrence is a rank avoidance of the 9A and does just what Madison et. al. feared -- the lack of an expressed enumeration is deemed proof the right doesn't exist.

As to substantive due process, it has a rich and complex history, one that was present in the mid to late 19th Century as well. Again, Scalia and Thomas rather not address it fairly, dismissing it as absurd or accepting it as unfortunate precedent.

Hashim said...


I picked the $20 clause at random. If you think that's a trivial example, how about claims that the 9A requires: clear and convincing evidence for warrants, Contra 4A; Grand Jury indictments for criminal acts performed by soliders in actual service during time of war, Contra 5A; a jury drawn from one's home town rather than the larger district prescribed by law, Contra 6A. Do you really think that it's appropriate for the judiciary to engage in any 9A inquiry of these putative claims, beyond simply observing that they are untenable because they would eviscerate indisputable textual limitations on the scope of rights conferred by more specific provisions in the Bill of Rights?

Conversely, I don't think it's even colorable to try to textually ground Griswold, Troxel, or Pierce in the 1A through the 8A, once DP is limited to PDP rather than SDP. Accordingly, no negative inference is proper from the text of those amendments, and the 9A confirms that no negative inference is warranted from the enumeration of those amendments. Thus, an unenumerated rights analysis is permissible in those cases if one believes such rights can be judicially recognized at all.

As for your more general point, I don't dispute that it'll often be difficult to ascertain whether a specific provision of the Bill of Rights is merely silent on an issue, rather than having implicitly ruled the issue out by exclusion. (Though the validity of drawing such negative inferences notwithstanding the difficulty is by no means unique to Lewis -- the same dynamic exists with the inclusio unius canon of statutory interpretation, the jurisprudence governing implied rights of action, and countless other interpretive scenarios.) At most, you and Rubin can persuasively argue that courts should be wary of drawing an unwarranted negative inference, a proposition with which I completely agree. But, as the examples above prove, sometimes the inference is not just warranted, but inescapable. And in such cases, I think it's completely illegitimate to refuse to draw the inference and instead to engage in unenumerated-rights analysis.

Michael C. Dorf said...

Hash: It's not clear to me that we're actually disagreeing about substance as opposed to nomenclature, but if we are, I think your position requires you to walk a tightrope. You seem to be saying:

1) If a right is completely unmentioned in a provision of the BoR, then it's okay to recognize it per the 9th;

2) It's also okay to recognize a right that is within the scope of a BoR provision AND protected by that provision.

3) But if an asserted right is within the scope of a BoR provision but not actually protected by it, then it's excluded.

Here's an example: The 1st Am protects a right to peaceably assemble and petition for a redress of grievances but does not protect a general right of association. Should that failure be read as deliberate exclusion of the broader right?

To get the right answer here, you'll need to say either that a general right to association is so far removed from the language of the 1st Am that it qualifies for 9th Am recognition or that it is so close to the 1st Am that it qualifies for protection under the 1st Am itself. I don't see the point of trying to force freedom of association out of the middle "dead zone."

But as I said, it's not clear to me that we're actually disagreeing about anything important. Presumably, we're both going to say that there is a right of association beyond what the petition clause literally protects.