Constitutionalizing Information Privacy by Assumption
33 Pages Posted: 9 Aug 2011 Last revised: 28 Aug 2011
Date Written: August 9, 2011
For more than three decades, the hypothetical constitutional right of information privacy has governed by assumption in the lower courts. The Supreme Court assumed the right into being in two cases decided in 1977, Whalen v. Roe and Nixon v. Administrator of General Services, and persisted in assuming the right exists without deciding recently in NASA v. Nelson. In the fertile murk of indecision, a hodgepodge of standards from interest balancing all the way up to strict scrutiny and a quasi-constitutional law of intuitions have arisen in the lower courts. What constitutes a violation of this assumed right? The law struggles for a standard to define a violation, but we know it when we feel it.
The article contends that the very fuzziness of the hypothetical right comes from its nature as an affectively saturated moral intuition regarding the proper balance of state and citizen power and unease over incursions in times of social change. The article is also about how to translate the powerful moral intuition that the Constitution should have something to say (even if its text does not quite say it) when the government does something creepy or outrageous with our intimate information into respectable law that helps sort out the manifold meritless claims predicated on privacy as knee-jerk reaction rather than right and allows policy innovation in the laboratories of states and political branches. The article argues that privacy is a transitional lens that opens up our vision of the liberty and freedoms safeguarded in the Constitution. We need not invent or recognize a new atextual right of information privacy. Rather the concept of information privacy is a lens that brings into focus a richer vision of the meanings of textually inscribed constitutional freedoms and what it means to vindicate them.
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