by Linda Meyer
Cardozo Law Review
22 Cardozo L. Rev. 1
Cardozo Law Review
22 Cardozo L. Rev. 1
ARTICLE: UNRULY RIGHTS
by Linda Ross Meyer
Linda Meyer is Professor of Law, Quinnipiac University School of Law. With thanks to Brian Bix, Neil Cogan, Steve Latham, Leonard Long, Marty Margulies, and Jeff Meyer for their help on earlier drafts, thanks to the participants in the Quinnipiac Faculty Forum discussion and the participants in the Columbia Rights and Rules conference for incisive comments and illuminating questions.
We Americans take rights very seriously. We indignantly invoke the Bill of Rights with all the reverence and absolutism accorded a sacred text. When we wish to ennoble a claim or demand, we call it a right, and much of our political rhetoric seeks to establish its constituency around an articulated "right": victim's rights, the right to bear arms, taxpayer rights, smokers' and non-smokers' rights, among others. Deprivation of a right is, well, wrong.
Rhetorically opposed to "rights" are "interests." Interests do not have moral overtones and do not call peremptorily for action. Indeed they do not seem to require anything as a matter of moral (or legal) imperative. n1 "Interest groups" is a pejorative term. The thwarting of an interest is morally neutral: in the famous words of the Rolling Stones, you can't always get what you want.
If rights and interests stand on such different planes, how is it that the terms become almost interchangeable in so many Supreme Court opinions? How did rights lose their absolute and noble character and become mere desiderata?
Rights became interests because the Court realized that rights often need to be balanced against public welfare concerns. Hence, as has been recognized by so many scholars, the United States Supreme Court swings between attempting to articulate rights as (absolute) rules (which stultifies the right and sacrifices important social goals), and attempting to articulate rights as a balance of individual and public interests (which deprives rights of their [*2] imperative character). n2
The Court's wrong turn is not its choice of rule-type or balancing-type adjudication (or its failure to choose), but its misconception that treating rights as absolute necessitates articulating them as rules. I argue here that (at least some) constitutional rights can retain their peremptory moral quality without sacrificing important community goals if the Court thinks of rights as practices of respect.
A rights-as-practices view avoids the rule/balancing dilemma in part because it characterizes rights as something other than property (to be distributed by balancing allotments) or spheres of liberty (to be delineated by rules). Rights as practices of respect do not amount to individual powers or possessions but to ways of relating. Being treated respectfully does not always mean moving control or property away from the community; instead, the community is restricted more in its manner of proceeding than in its attainment of proper ends. Because rights depend on the interaction between people rather than preexisting zones of property or liberty, they vary situationally and evade rule-based adjudication. Since there is no preexisting individual "interest" to be countered by a preexisting public "interest," rights are also not "balanced" or "compromised," but respected completely in the mode of interaction.
Most importantly, conceiving rights as practices of respect returns the focus of rights to human dignity and reaffirms that rights are not just wants or needs, but moral claims that elaborate and support the nobility of personhood and the mutual affirmation of community.
[*3] Part I explains why we end up in the rules versus interests predicament and how it relates to our underlying notions of rights. Part II suggests that many rights are best understood as practices of respect, and, without that central dignitary basis, rights to property or powers lose their moral and peremptory character. Part II.A explains why the rights-as-rules approach fails to track the contours of rights. Part II.B explains how the rights-as-interests fails to capture the moral imperative inherent in rights. Part III suggests that rights as practices must be articulated in a common-law fashion in order to retain their imperative nature and their substance. In other words, courts should keep doing what they do best. An example from the law of privacy is provided to demonstrate the shortcomings of the rule and interest approaches and how these two approaches differ from common-law reasoning. Part IV offers some broader thoughts about how constitutional rights might look if they were analogized to the common-law, practice-based rights exemplified in Part III.
I. Will Theory and Interest Theory
An examination of the philosophical debate over rights shows how the rule/balancing debate is grounded in deeper questions and problems with our understanding of rights and their relation to interests. Even the thinnest account of rights acknowledges their peculiar conversation-ending character. In Wesley Hohfeld's famous analytic of legal terms, a claim-right means that someone else owes the claimant a duty. n3 A claim of right is a call for action which is peremptory, categorical, and inexorable. It is also, by its terms, relational, calling on someone else to do, or to refrain from doing, something. n4 Interest-talk, by contrast, does not call for action. "I have an interest in a good education" does not have the same power as "I have a right to a good education" does.
Among analytic theorists, there is debate about whether legal rights are more usefully classified as including the power of waiver, or excluding it. The "will" or "choice" theorists define a claim- [*4] right as including the rights-holder's power to waive or enforce the right. By contrast, the "interest" theorists believe that rights are properly understood as "important interests" that may be unenforceable and unwaivable but serve as grounds of or justifications for legal duties. n5
The will theorists argue that only by limiting the idea of rights to those which may be legally enforced or waived will we avoid the difficulties of distinguishing rights from interests - the rights-holder can easily be set apart from all those who might benefit from the enforcement of a duty because only the rights-holder has the power to waive the duty. There is no need to resort to difficult-to-apply concepts like "direct beneficiaries" or "intended beneficiaries" in order to discover who has the right. n6 Like the contractual doctrine of privity, choice theory focuses on the ex ante relationship of the parties to determine the rights-holder, not the ex post question of whose bread is buttered.
The "interest" theorists, conversely, point out that the "choice" definition of rights is too narrow: it results in children, animals, and other nonchoosers having no rights. It also does not capture the inalienability of rights thought to be fundamental, like liberty. n7
The definitional or conceptual question, however, muffles the deeper reverberations of these notions of rights. n8 Though Hohfeld sought to insulate the concept of legal rights from moral theory, the intellectual history cannot be so isolated, especially for American constitutional law. n9 Nor does a conceptual analysis explain the moral claim that the term "right" carries in everyday conversation.
The traditional distinction between will and interest theories of rights does not divide the diverse and nuanced theories of moral rights. Nor does it capture all the important ingredients in any deeply thought-out view. Nevertheless, analyzing some of the [*5] intellectual roots of the distinction shows why the practical oscillation between rules and balancing tests connects with definitional questions about what rights "are."
The "will" theory finds its broader intellectual roots in Kant's insistence that moral agency is the central feature of personhood. Essential to moral agency is the capacity to will, which, for Kant, is to act in accordance with the conception of laws, rather than be passively subjected to forces of nature. n10 Acting in accordance with the conception of laws requires that our thoughts be free - free to follow logic rather than the random fluctuations of brain chemistry, free to make sense. Because we exercise our moral agency only by acting in accordance with reason - rather than by allowing ourselves to be buffeted by natural forces - Kant equates reason with will. n11 Kant's dichotomies cannot be dismissed as enlightenment naivete: We continue to treat "irrational" behavior as requiring causal explanations, as being "unfree," while we strain to interpret each other most of the time as acting in a way that "makes sense" or can be expressed by reasons rather than causes. n12
Reason, whose first law is consistency, requires us to universalize our principles. Any "giving in" to natural inclination, and thereby making an exception to one's principles, is a forfeiture of agency, not an exercise of it. Hence, the "first statement" of the categorical imperative: Act so that the maxim of your action can be a universal law. n13 The moral agent is ipso facto both reasonable and powerful - fit to withstand temptation.
Because willing carries with it the ability to evaluate "good" in the world as appropriate means to our ends, we are the evaluators, not the evaluated. n14 We are, in Kant's words, ends in [*6] ourselves. Given reason's requirement of consistency, we must recognize at once that other moral agents are like or equal to us in their moral agency or capacity to will and reason. Recognizing our own status as subjects rather than objects, we must recognize that other creatures of reason have the same status. The result of these equations is Kant's "second formulation" of the categorical imperative: Act so as never to treat rational nature, whether in yourself or others, as a means only but also as an end in itself. n15
The upshot of our mutual recognition of each other as autonomous and reasonable persons is the "third formulation" of the categorical imperative as a "kingdom of ends," n16 a union of reasonable moral agents who respect each other and live under common laws of reason. As all agents are reasonable, there seem to be no "conflicts" of rights - all is determined by mutual assent. n17
For Kant, only a person capable of willing/reason can be a moral agent, with dignity, personhood, and rights. Indeed, admission to the community of reason is the closest we can hope to get to divinity and nobility of spirit. n18 By striving to act in accordance with reason, we become like gods, whose actions are necessarily reasonable. Others, like animals and infants, cannot be agents with rights but only objects of natural forces, protected and conserved perhaps, but with no voice or will of their own. Kant's community of reason, however, is not restricted by biology - should we discover that animals or aliens can "act[ ] in accordance with the conception of laws," n19 they too would be rights-holders.
The will theory of rights focuses on the dignitary aspect of rights-claims as signs of self-respect and equality. Traditionally, Kantian theory has been at the heart of "liberty-based" theories of rights, on the ground that the kingdom of ends is a community that leaves each of us free to pursue his or her own goals, as long as we do not hinder the pursuits of others. This picture of the kingdom of ends tends to portray rights as spheres of autonomy within which each actor may do what he or she pleases. On this ground, theorists have viewed rights as trumps that resist redistribution of [*7] resources or other "restrictions on liberty" for the common good. n20
The picture, however, has more in common with John Stuart Mill n21 and Kant's political philosophy n22 than with Kant's moral philosophy. For Kant, of course, freedom does not lie in doing what one pleases (following inclination) within a zone of freedom, but in doing what is right, according to reason. n23 Nor can true freedom be achieved through coercion because obeying a rule out of fear of the consequences is allowing oneself to surrender to inclination, not acting in accordance with reason. Hence, Kant would limit the state's power of coercion to combating private coercion; though this achieves only negative liberty, not positive liberty. n24
Kant-inspired theories of rights, then, accurately or not, tend to portray rights as spheres of liberty. This liberty, based on our capacity for reason, tends to be delineated by rules, since rules are the most obvious way to demonstrate logical structure and consistent thought in accordance with reason. It is also the most obvious way to articulate absolutes, which admit of no conflicts or exceptions. Therefore, will-based theories of rights tend to regard rights as spheres of liberty bounded by absolute rules.
The "interest" theories of rights, however, ground rights-claims not in the capacity for moral agency, but in common "interests" or needs we share as humans (though choice or autonomy is often one of the desiderata). Theorists derive these "fundamental" rights from a number of different sources, including the ideal of a "good" or minimally bearable human life [*8] in the Aristotelian tradition, n25 religious teleology, n26 the mythic state of nature, n27 minimal conditions of social cooperation, n28 and contingent historical conditions of scarcity. n29 In all these theories, we are bound together by our mutual need (based on our common biology) for certain goods under conditions of scarcity, a common need that generates (either through contract, coercion, or cooperation) n30 a set of minimal and unwaivable "human rights" n31 that can be set up against mere interests (either as add-weights or trumps n32). Interest theories are limited by biology, but not by agenthood - infants and those unable to make decisions can be rights-holders. Interest theories, then, naturally tend to be concerned with the fair allotment of scarce but essential goods (material and immaterial) necessary to maintain a minimally decent human life, and with the triage that is required when rights-claims conflict.
Interest theories of rights have the advantage over most forms of will theories of rights in recognizing that rights can conflict (at least in the real world of limited time and resources), as well as the advantage of recognizing that the abstract capacity for our moral personhood is just that - an abstraction, unless we have the material conditions necessary for its development and meaningful exercise, i.e., food and shelter, education, employment, choices and opportunities, etc. Interest theories, then, lend themselves to articulation in balancing tests, which recognize conflicts and attempt to resolve them through utilitarian calculus.
In short, the rules and balancing approaches to rights can be related to the substantive theories of rights in the following way: Will-based theories of rights lend themselves to a picture of [*9] spheres of liberty bounded by absolute rules; interest-based theories of rights lend themselves to a picture of distribution of important social goods according to a balancing of interests or needs. This does not suggest that theorists will fall neatly into one or the other picture, but only that when one pulls at the frayed edge of "rights as rules," one often finds it entangled with "spheres of liberty" because of the shared Kantian roots of these theories. Likewise, when one pulls at "rights as fundamental interests," one often finds it entangled with questions of conflict, distribution, and balancing.
Both theories of rights, however, must confront the criticisms of those theorists who question the usefulness of talking in terms of rights at all. Postmodern scholars argue that rights rest either on the antiquated Kantian all-or-nothing notion of moral agency (and its undifferentiated idea of will as an absolute capacity for autonomy) or on the indefensible assumption of natural rights theory that the individual preexists society. n33
The postmoderns argue that either understanding of the nature of the rights-bearer ignores the social construction of willing, n34 personhood, n35 and the problematic nature of the idea of an "individual." n36 The Kantian idea of agency presumes free will. Kant's theory of choice (and hence responsibility) is all-or-nothing: you are either capable of "reason" or not. But the reality of human psychology is that our choices are conditioned not only by forces of poverty and social status, but also by internalized norms about appropriate or reasonable perceptions. Degrees of mental difference are interpreted as illness in some cultures, wisdom in others. Reason is not a dichotomous "natural kind" that is just there for us to see, but is both socially constructed and a continuum of abilities. The reality of human life is that what counts as reasonable is in part conformity to social expectations - culture, not innate reason. For example, if I were to read this paper while standing on a bench in Central Park, many onlookers would question my sanity; while this would (I hope) not be the case in a conference room.
[*10] Many postmodern scholars emphasize that choices are not only affected by all sorts of perceptual and emotional differences and social norms, but also by brute coercion and economic needs. Yet the Kantian model, for the most part, holds the individual responsible for her choices anyway, that is, it sees them as choices. As Wendy Brown asserts:
If provision of boundary, and protection from bodily and spiritual intrusion offered by rights are what historically subjugated peoples most need, rights may also be one of the cruelest social objects of desire dangled above those who lack them. For in the very same gesture with which they draw a circle around the individual, in the very same act with which they grant her sovereign selfhood, they turn back upon the individual all responsibility for her failures, her condition, her poverty, her madness - they privatize her situation and mystify the powers that construct, position, and buffet her. n37
Contemporary writers have also stressed that the self is itself a concept, which, like all concepts, is a product of social understandings, not something that exists apart from or before the social. n38 The rights-bearer as an individual requires an idea of selfhood that flourishes only in modern societies, where persons are taught to distinguish themselves from one another, either because of the division of labor n39 or some other social practice. n40 There is no "negative freedom" because the self "depends upon the Other for its sense of selfhood," and the community "recognizes and confirms who is recognized as a constituted person." n41 For example, historians point out that colonialists explicitly decided who counted as a rights-bearer capable of choice and who did not - schizophrenically admonishing native communities to abandon their traditional communal ways to become individualists, and then denying full rights to native "individuals" on the ground that they were not ready to exercise these rights. n42
[*11] Communitarian theorists oppose rights-consciousness as selfishness that defeats norms of civility, hospitality, generosity, and charity. n43 As in Marx's critique of liberal rights in his essay On the Jewish Question, n44 these theorists argue that liberal rights falsely separate us from each other as individuals and create anomie and a false sense of self-reliance, papering over real need, interdependence, and inequality with the legal fiction of equal rights.
Critical Race Theorists respond to rights-skeptics that rights-claiming is necessary to assert basic equality and dignity and to affirm self-respect. n45 As a much quoted passage from Patricia Williams so eloquently puts it:
For the historically disempowered, the conferring of rights is symbolic of all the denied aspects of their humanity: rights imply a respect that places one in the referential range of self and others, that elevates one's status from human body to social being. For blacks, then, the attainment of rights signifies the respectful behavior, the collective responsibility, properly owed by a society to one of its own. n46
[*12] Historians and anthropologists point to the South African experience, in which rights-claiming, though used against natives as well as for them, succeeded in legal arenas when political arenas were foreclosed. n47
In short, rights theory reaches an impasse between liberty and goods that generates a second impasse between characterizing rights as rules and characterizing rights as interests. The pendular swings of judicial opinions between rights as rules and rights as interests n48 follow this deeper bipolar historical understanding of rights themselves. The following section attempts to articulate an understanding of rights that recognizes their importance as guardians of mutual respect and human dignity but frees them from rules.
II. Rights as Practices
A. Kant Meets the Common Law
1. Restoring the Centrality of Dignity
The view I defend here acknowledges some of the insights of the postmodern movements while circling back to Kant. Dignity is at the core of rights-talk insofar as rights-talk makes moral claims, n49 because moral claims, as Kant saw, are always about respect. We have only one categorical right, which is, to paraphrase Kant, "a right to expect civility from others." n50 I also take the point that "rights" add an important dimension not articulated by duties, as they not only give voice to self-respect, but they also make duties relational - binding our duties to persons, rather than principles. n51
If rights are viewed only as entitlements to goods or spheres of autonomy instead of practices of respect, it is easy to see that these "entitlements" could be used to humiliate and degrade. Any [*13] good or power can be construed as a stigma under the appropriate social circumstances, and any attempt to call it a "right" would sound hollow and strange (like the "right" to go to an all-black school during segregation, the "right" to stand trial, n52 the "right" to stand in line for welfare benefits, the "right" to choose between sexual harassment and exclusion from the workplace, n53 the "right" to be a prostitute, a woman's "right" to automatic exemption from jury service, the "right" to avoid minimum-wage laws, or to hypothesize, a gay man's "right" to a free mental health evaluation). Hence, all rights that include the idea of entitlements to choices or goods must first be grounded in respect and dignity. It is this insight, perhaps, that makes Brown v. Board of Education n54 stand out as a case rightly decided. The problem with "separate but equal" was not an abstract inequality, but a concrete stigma and degradation. The Supreme Court had to (and did) consider what the practice of segregation meant; it could not merely compare the teachers' salaries and number of books in the libraries.
The question of "fundamental" interests and distributive justice (of goods) must come after (or at least along with) a focus on "the vague but powerful idea of human dignity." n55 Otherwise, the fundamental rights strand of rights-talk is too easily distorted and demeaned into talk of interests and balancing tests.
2. Practices of Respect
I differ from some students of Kant in not believing that the idea of respect alone can be used to derive a set of rules upon which moral decisions are based. "Respect" is still an abstraction, perhaps useful as a touchstone but not sufficiently concrete to serve as a major premise for practical deduction. n56 Our everyday knowledge demonstrates that respect can be shown in countless (often mutually exclusive) ways, depending on the context and cultural significance of the gesture: by taking off one's hat, or by [*14] putting it on; by bowing or standing erect; by maintaining eye contact or averting one's eyes. Likewise, respect for human dignity might be instantiated in a ban on capital punishment, or a ban on modes of punishment thought to humiliate or demean, or in the rituals of allocution, last meals, last cigarettes, or other "last rites." The abstraction of respect cannot by itself dictate to morality or law its full substance.
Respect is and must be instantiated in practices, n57 and may be instantiated in different ways depending on contexts or cultures. Because it is a matter of practice, two points follow: (1) theory cannot dictate the appropriate practice a priori, n58 and (2) practice can never be fully and completely articulated in a set of rules. n59
The first point may be relatively obvious, given that the demands of respect depend so greatly on social convention and context. The second point, however, may require a fuller explanation. The deeper philosophical reason why practices cannot be captured by articulated rules is that what we can formulate as a rule is inevitably bound up with and even [*15] predetermined by what we do. Our background involvement with the world comes before any theorizing about either the world or morality. Consequently, any description of the background is inadequate because the very formulations of language rely on it. Morality as a practice, then, is prior to any theory of morality.
This is not to suggest that one cannot theorize about morality. But one cannot construct practical morality top-down, from scratch, through theory. Theory gives only a partial glimpse, suitably distorted, segmented, and isolated. We can argue and theorize, but our theory cannot be "total." As Wittgenstein said, the practice of explanation cannot be taken to require explanations for everything all the way down, but is only useful for what is currently in dispute between folks who otherwise understand each other. n60
3. What Is Reason?
We must respect and understand each other because of our mutual acknowledgment of each other as thinking, planning, speaking, wondering, questioning, celebrating, marveling, playing, despairing, and desiring beings. Although "reason" has become a problematic label for these ascriptions, mutual recognition is still forced from us, as Kant understood, by our very self-conception, even if that self-conception is part of and not "before" our social union, and even if that self-conception is fuzzier and more paradoxical than Kant would allow. It is still imperative for us to make sense of each other and ourselves, to see ourselves, and therefore each other, as actors, not as effects of causes. We still seek consistency by way of analogy and disanalogy, and search for meaning in the patterns of conduct of those around us. Much of that meaning must rely on a sense of common goals and shared ideas of what is good in human life. To interpret and understand the life of another human being is to see her as pursuing some version of a good life we can recognize, to understand her speech as coherent, her actions as chosen (to some extent, at least), and to be able to tell a story in which she is a protagonist. Insofar as we understand our own actions as (sometimes futile) attempts to lead a worthwhile life, so must we understand others who share with us the drive for meaning. We cannot stop making sense. Thus, to be true to our own sense-making requirement of consistency, we owe [*16] the obligation to respect others who also cannot stop making sense.
We need not believe that reason is only cognitive or a priori in order to accept the Kantian conclusion that whatever it is in us that impels us to create meaning also compels us to recognize other meaning-creators as second-selves to be accorded the dignity and respect that sense-making requires of us.
4. The Internal Standpoint
One objection to the view I am defending is that grounding morality in social practice is mere moral conformism, conventionalism, cultural relativism, or conservatism. The problem with this objection is that it conceives of social practice as facts about behavior or public opinion polls, rather than understanding practice as the taken-for-granted background of how we make sense of each other and the world. Practice is always normative and full of significance - it is not just behavior that receives a normative label from a moral theory. n61 Practice precedes moral theory. For example, it is obvious that the pilot knows more than he can put in a rulebook or manual - merely reading the manual is not sufficient to make him able to fly. And, the manual is written on the basis of the practice and expertise of flying; flying is not based on a preexisting manual. The same is true of learning to be good: it takes practice and requires knowing "how" not just knowing "that." Yet, practice is not the same as a description of what we do, any more than the actual rate at which the phrases "please" and "thank you" are used in my household is the same as our manners, that is, how we know to act. Anyone who dared to derive moral guidance from the actual rate of expressions of politeness in the household would certainly be told "you know better than that." n62
Our theoretical understanding of morality is deeply colored and predetermined by our normative practices, many of which are so automatic that they evade articulation (like the obvious but hitherto unstated norm that I may not give a paper at a conference [*17] while lying on the floor), and most of which are so context-sensitive that they defy articulation (I may give a paper while lying on the floor in a yoga class). Hence, our practices are not "mere" conventions to be subjected to enlightened rational reconstruction, but rather the basis of our ability to pick out "norms" or "values" at the theoretical level.
Of course, some practices are deeper or more touchstone-like than others. Certainly we can talk about what is right in an uncertain case and generalize our ideas into articulated norms that may shed light on other things we do. But, ultimately, these articulated norms are themselves subjected to criticism based on how they "come out" in practice, that is, based on our practical know-how about what is right in a concrete context. n63
Again, the concept of "practices" here is not merely descriptive, any more than the phrase "it simply isn't done" should be understood literally. We daily employ an understanding of "good" practice, which is not a description of what all or even most people actually do. For example, in speaking "grammatical" English, we are certainly involved in a practice, but proper usage (called, of course, standard usage) is not the same as what "most people" do. n64 Granted, someone must do what "is done" some of the time, or the practice will cease to be, but what "is done" may differ from what most people do.
The failure to distinguish between a (neutral or objective) description of social practice and social practice as normative leads Dworkin to view rights as principles rather than practices, because he argues that we can and do call our practices into moral question. n65 But he misunderstands practices as descriptions of what most people do rather than implicit understandings about what "is to be done." He then invents principles as a way of allowing for moral reasoning. But we already have methods of reasoning about practices - the not very mysterious and very familiar procedure of bootstrapping from central or agreed-upon cases to problematic ones by analogy. Moral argument usually begins with some standard intuition about what it would be right [*18] to do in a situation in which everyone can agree and then proceeds by analogy to the disputed act. We agree that we should not eat human meat. I say that animal meat is not really like human meat; you say it is. The standard intuition itself (we should not eat human meat) is not justified, but assumed. Nor is the "central case" reducible to a rule (not eating human meat doesn't necessarily forbid organ transplants). To explain why we can't codify our starting points, Dworkin makes "principles" defeasible, but there is no need for inventing another legal term if we recognize practice as normative in the first place.
5. The Common Law
We call our practices into moral question by analogizing them, in bootstrap style, to other unquestioned practices. In the course of analogizing, we try on various verbal formulations and generalizations of our practices to see how they fit our intuitions. But the formulations, though sometimes useful in locating other like cases, are themselves ultimately only rules of thumb tested by our sense of whether they "come out right" in situations about which we agree. n66
Moreover, this "bootstrapping" analogical form of argument is very familiar to lawyers, who follow the common-law reasoning of analogizing the current case to (or distinguishing it from) well-established precedents. Moral and legal arguments have a lot in common and cannot be displaced by moral or legal theory. n67 Thus, I argue that if rights are about respect-practices, they must be adjudicated case-by-case in the contextual way of the common law.
Moreover, the ad hoc, partial, case-specific nature of common-law adjudication is well suited to adjudications of rights conflicts. n68 There need not be any overarching dogma about what the content of a right is, beyond its touchstone in dignified treatment. Courts should be free to work out the difficult accommodations necessary to ensure that clashes between claims of right are resolved. The case illustrations provided below show how courts can and are doing just that.
Both will-based and interest-based conceptions of rights tend, [*19] in law, to degrade into different problematic forms. A will-based theory of rights based on Kantian principles (without instantiation in practices) tends to make the problematic assumption that rights will not conflict, but will instead result in a harmonious kingdom of ends protecting spheres of liberty. Rights themselves are pictured as spheres of liberty or powers of choice. The interest-based theory of rights, rooted in the notion of fundamental entitlements, contains no such assumption of no conflicts, but assumes that in a world of scarce resources, triage will be required.
If one assumes that rights will not conflict, then one envisions rights as categorical imperatives that are universally valid. This peremptory character gives rights-claims a moral urgency and sense of dignity - rights are trumps. They are clearly different from "interests" because they always win. But this universality usually translates into generality, that is, rights become rule-like. Only as rules can rights make their no-exceptions nature explicit. And only as rules can they protect the metaphorical space allotted to each of us for our "freedom."
If one begins with the interest-theory, with its assumption that rights will conflict, then rights are defeasible, barely distinguishable from interests. n69 In particular, if rights are understood as rights to certain goods, rather than as rights to certain forms of relationship, they easily degrade. Claims of one person to certain goods must be balanced against claims of others. Ultimately, rights become indistinguishable from interests. The next two sections illustrate how understanding rights as either rules or interests fails.
B. The Problem of Rights as Rules
Kant formulated reason's demand for consistency as requiring a "universal law" of the "maxim" of action. Every action we will, according to Kant, has a "maxim" - an articulated reason - and that maxim should be one that does not make exceptions in our own case but is "universalizable" to all similarly situated cases. Kant seems to call for action in accordance with rules.
The connection between reason and its rule-ification is deep. How can I explain that I gave one student permission to hand in a late paper, while denying a second student such permission? Usually, I articulate a rule that makes my seemingly inconsistent [*20] behavior consistent - I grant extensions for "emergencies" or for students who haven't blown off their homework, or something like that. And if I am constantly modifying the rule after making my decision, I am suspected of irrational or result-oriented action - acting in accordance with some other rule (like favoritism or racism) that I would not be willing to decree as a universal law. Like a judge who must provide a reasoned basis for her opinion, the Kantian requirement that action be justified by its conformity with a rule runs deep.
Yet the difficulty is that the "situation" or "action" is never fully articulated or perhaps even articulable. Using only words - which are by nature generalities - we never capture a "concrete universal" that fully describes a particular. The first difficulty is that we must fit our experience into categories. If a statute prohibits "having a gun," does one "have a gun" when one has it in one's trunk? or closet? or neighbor's house? or local museum? or if one just pretends to have it? or handles it briefly? or carries it in one's luggage without knowing it? The categories we must use in formulating a rule are not made to measure, but are off the rack.
Second, the words we use are themselves shaped by use - their resonance and implications change as they take on shades of sense from their history of use in the community. At the fuzzy edges of family resemblance, words cannot be trusted to hold still. What we say the rule is takes on color from how we use it - think of any chunk of doctrine like "clear and present danger," or "vehicle," n70 or "clearly established law."
Third, the world is a multifarious place, and practices of right are impossible to capture in a neat and concise formula. When I formulate my late-paper rule, is it important that my student has been (mostly) diligent all semester? that she is going through a divorce? that she had a car wreck last week? that her father is ill? that her cousin is getting married? that her cousin's wedding was called off? that her dog died? that her cat is sick? that she is celebrating a religious holiday? that she is celebrating the solstice? that her brother's first movie is premiering? that her ranch is on fire, that her horse is lame? that her computer is faulty? that she had to move out of her apartment? that she might have to move out of her apartment? that her roommate is moving out of her apartment? that her sister is going through a divorce? that her [*21] phone line is down? that there was a blizzard? that she broke her glasses? that I have other papers to grade? that I am getting a divorce? that I am having surgery? that other students in the class have met the deadlines? that other students are about to sue? etc. What combination of these circumstances is enough? What other circumstances have I not included? When I allow the student to hand in the late paper, how do I ever say the maxim of my action? Can an action ever be put into (only one form of) words? n71
Not only is the maxim of my action problematic, but universalizing it is even more difficult. The "situation," however described, never recurs, for history does not repeat itself exactly. What is "similar" depends on analogy, not identity. And universalizability suggests a certain eternity to our rule, as well as full descriptive detail. But we do not really know ahead of time what the maxim of our action is, what features of the situation are the salient ones, or what situations will occur later that we will say fall under our rule even if we hadn't thought of them before. Instead, the maxim of our action begins to resemble the common-law ratio decidendi, giving only a provisional statement and continually being honed and challenged as we face similar situations.
Even if we could solve the difficulty of describing actions in words, formulating rules that are adequate to the case, the consistency requirement of reason is only necessary, not sufficient. I could be perfectly consistent by accepting the late papers of brown-haired students only, but that distinction would seem unfair and arbitrary, even if it is consistent. The substance of the distinctions I make must also make sense, which is a further constraint on my reasonableness. When does something make sense? When it accords with some vision or practice constituting a good human life. But those practices too are in motion, impossible to capture in words. Appealing to the norm behind a rule assumes that one can articulate the norm in rule form - or restate the rule. But the same problems are encountered here, and we find yet another level of partially stated or vague articulations of normative practices. Ultimately, the practice is the justification - justice is a way of humans being together, not a set of rules.
Treating rights as rules, given the nature of language itself, confines them to ill-fitting formulations that often seem to both miss the point and generate strategic disobedience. Two examples in criminal procedure law are illustrative: the doctrine of search [*22] incident to arrest and the automobile exception to the warrant requirement.
Police searches of a suspect's person when she is arrested are justified by the need to preserve evidence and protect the officer. Yet, in United States v. Robinson, n72 the Supreme Court upheld a full search incident to arrest, even though the search could not possibly uncover any evidence of the crime for which the defendant was arrested (driving after revocation of license), and even though the officer had no reason to believe the arrestee was dangerous. The upshot of the search-incident-to-arrest rule, which no longer follows the contour of its justification, is that now police officers can (and do) use traffic violations to arrest drivers as pretexts to search for evidence of crimes, even when they do not have probable cause to believe that evidence will be in the car - a form of "strategic" obedience to the letter of Fourth Amendment law, but a violation of its spirit. n73
Miranda v. Arizona n74 sought to guarantee the Fifth Amendment right to be free from self-incrimination by articulating the right through a rule: police must advise suspects of their rights. However, because the right as rule applies only when a suspect is "interrogated in custody," police were able to engage in strategic obedience by working around the rule - trying to interrogate through nonquestion questions or frauds, n75 avoiding custody by releasing suspects after questioning or questioning them in a home, hotel room, or street. n76 Because the rule itself was only a [*23] proxy or heuristic to protect the core right of self-incrimination, the courts spent their time line-drawing true "technicalities" about whether a suspect was in custody or not, instead of focusing on whether the confession was coerced. This line drawing makes the jurisprudence seem arbitrary, and courts find it increasingly difficult to make principled distinctions, especially when the lines were drawn on mere prudential grounds. n77 Most notoriously, the warrant requirement has become so riddled with exceptions that it has become honored only in the breach, causing judges n78 and commentators n79 both to call for its elimination. n80
Any attempt to articulate a (nondefeasible) rule suffers from this fate. n81 Any rule is, at best, only a proxy for a more sensitive and accurate assessment of the right of the case. We may use rules when we wish for efficiency in administration, a division of decision-making authority, an excuse for an unpopular decision, or when we simply need the question decided in order to further cooperation, n82 but rules never adequately track the right of rights. n83
Not only are rules overbroad, they are also too restrictive. They often fail to take into account the "taken for granted." Nowhere is this more obvious than the jurisprudence of qualified immunity, where the Supreme Court has held that police officers are personally liable for their constitutional infractions only if the constitutional law is "clearly established." n84 Courts that read [*24] "clearly established" as requiring a preexisting rule-on-point will counterintuitively hold that outrageous conduct (e.g., leaving an innocent woman passenger stranded in a dangerous neighborhood at night after impounding the driver's car; holding a gun to a child's head; refusing to cut down an inmate who hanged himself, until a photograph could be taken) was not clearly established as unconstitutional merely because no one had ever needed to articulate the obvious before. n85
C. Problems with Interest Balancing
On the other hand, if the Court does not formulate rules to enforce rights, interest-based theories of rights devolve into interest balancing, an enterprise that seems to take the right out of "rights" and treats them as mere wants. n86 If rights no longer have any special resistance to trumping by the needs of others, then they begin to look more and more like wants, rather than rights. They lose any sense of special moral force.
The difficulty is in defining interests in such a way that makes them immune or at least resistant to utilitarian comparisons with the interests of society. n87 Whether the interests are explicitly defined in utilitarian terms or not, the problem remains. If the interests are understood as preferences or stand in for individual utility, then any utilitarian understanding of rights as more important than interests will evaporate as soon as social utility demands a surrender of the individual right. n88 Even rights based in some form of fundamental interest "themselves need to be justified somehow, and how other than by appeal to the human interests their recognition promotes and protects?" n89 Hence, even if a theory of rights is grounded in fundamental interests, it must be balanced at some level against the overall good of others. And, when "fundamental interests" conflict, balancing is again the [*25] obvious mode of reconciliation. Once rights become just "weighty interests," they lose their peremptory quality. They become wants to be weighed against other wants, even if they are usually more urgent and powerful wants.
Various judicial doctrines in which the Court has turned away from viewing rights as rules show signs of losing their imperative and peremptory force, and coming to resemble sheer utilitarian calculus. For example, in a series of drug-testing cases and a school search case, the Court eschewed the rule-like warrant and probable cause requirements in favor of explicitly "balancing [an investigative practice's] intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." n90 Not surprisingly, social benefit usually wins, as the many are greater than the one. Justice Brennan referred to this use of balancing tests as "doctrinally destructive nihilism," n91 and many commentators have agreed. n92 Balancing turns the focus away from dignity. It reduces "right to privacy" to a set of balanceable interests; for example, freedom of movement, physical isolation, avoidance of risk, trauma and pain, or avoidance of disclosures of information. n93
The Court has even re-articulated the probable cause requirement as the outcome of an implicit balancing test: "It is of course true that in principle every Fourth Amendment case, since it turns upon a "reasonableness' determination, involves a balancing of all relevant factors." n94 Turning the rule into an implicit balancing test opens it to rebalancing in unusual situations, n95 which further diminishes the peremptory quality of the rights at stake.
By contrast, focusing on dignity and respect practices does not require weighing and balancing. The focus becomes [*26] accommodating social needs in a way that preserves and respects the dignity of others. Manner and intent become central. This "right way of relating" cannot be discovered by totting up a balance sheet, but by examining social norms for analogies, as the example below illustrates.
III. Unruly Rights - A Common-Law Example
The dilemma articulated above - how we can have rights without either the stultification of rules or the degradation of interest balancing - calls for a different understanding of rights. I suggested above that rights, as articulated in a common-law fashion, n96 are neither rules nor interests, but practices capable of only provisional articulation. n97 I offer an extended example here: a comparison of Fourth Amendment search cases, in which the Court has "balanced interests," with the common-law equivalent tort cases of invasion of privacy. n98 Most invasion of privacy tort cases do not use "balancing of interest" language. However, there are always exceptions. n99 Both contexts require an analysis of privacy "rights" in cases involving countervailing social goods: in the Fourth Amendment context, the countervailing good is one of effective law enforcement; in the tort cases I discuss, the countervailing claim is one of public interest or "newsworthiness."
The Fourth Amendment doctrine requires an initial determination of whether an official's conduct has invaded any "reasonable expectation of privacy." n100 Then, the court goes on to ask whether a warrant for the search is required or whether the search falls under some exception to the warrant requirement [*27] rendering it reasonable. For cases in which the warrant requirement does not apply, the court weighs the individual privacy right against the government's interest in law enforcement.
The privacy tort is usually articulated in four branches: (1) unauthorized commercial use of one's name or face; (2) unauthorized publication of private facts; (3) publication placing one in a "false light" before the public; or (4) intrusion into seclusion. I will concentrate on the last sort of invasion as it is most analogous to a government search. The plaintiff must prove that the intrusion was highly offensive to a reasonable person in order to recover damages. The plaintiff, however, need not show actual damages to recover; nominal damages may be awarded for the "affront" even absent any evidence of mental distress. n101
Newsworthiness is not a separate First Amendment doctrine in these cases but a concern already present in common-law cases predating the application of the First Amendment to the privacy tort, which remains present even in the intrusion cases in which the First Amendment does not apply (because there is no publication). Courts gauge the offensiveness of the intrusion in part by the reasons for it. Good reasons, including trying to procure important information to inform the public, may go far to justify an intrusion.
I have chosen privacy as a case study for "rights" in part because of the contrast between its treatment in tort and its treatment in criminal procedure. But I have also chosen it because it so clearly shows that (1) "rights," importantly, are about dignity, and that (2) dignity is inseparable from practices. This last point is brought out especially well by privacy doctrine. At first glance, we might think of privacy as the quintessential kind of right that is best characterized as preexisting social interaction - a sphere of autonomy in Mill's classic sense. But in the tort doctrine, as it turns out, privacy is not something that preexists the interaction as a good or as a sphere of separation, but is better characterized as a way of relating to others. Privacy doctrine in the criminal procedure context (sometimes) misses this truth and provides an interesting contrast.
I acknowledge that in many ways the comparison between tort doctrine and criminal procedure is not a perfect one. Though both sets of cases express concern with defining privacy rights, several commentators have suggested that the Fourth Amendment cases also protect other rights. n102 However, the initial [*28] determination of whether someone has any right to privacy at all (or, in Fourth Amendment terms, whether there has been a "search") is very similar and the comparison of cases yields some thought-provoking differences. n103 First, in the tort context, it is clear that "privacy" is not a unilateral or unidimensional value that can be reduced to an interest in information, an interest in physical integrity, an interest in autonomy, or an interest in avoiding harm to reputation. It is an amalgam of norms and practices that embody respect for others in all these ways (and others I might have missed). To illustrate, the question of whether or not an invasion has occurred depends on who the "invader" is, not just (as in some of the Fourth Amendment cases) on what information the invader discovered or where the information was discovered. Second, in the tort context, the question of whether or not an invasion has occurred is bound up with the intentions and reasons the defendant had for her conduct and the way in which the defendant sought to further her goals. By contrast, in the Fourth Amendment context, the expectation of privacy is to be determined apart from the reasons for the invasion and weighed against them.
The alternative to interest balancing shown in the tort context illustrates how rights can retain their normative and imperative character while still remaining fluid enough to capture the spirit or point of the protection, thus avoiding the rule/interest dilemma.
A. Privacy as a Set of Practices
Both interest balancing and rule-based reasoning assume that one's right to privacy is a matter of inaccessibility or autonomy, or information flow alone, i.e., something that preexists the interaction between the two disputing parties and can be either circumscribed or balanced against the invader's interests. There are two flaws in this assumption. First, "privacy" refers to a complex of cultural practices designed to show respect for others and create and maintain personal dignity; it is not something that preexists the interaction between specific people. The tort of privacy has always had this character, but Fourth Amendment doctrine began with a more rule-based doctrine before it took its [*29] cue from the common law. Its history is instructive here. n104 Second, the Fourth Amendment standard leaves out something that the tort law recognizes: the offensiveness of the invasion (and hence the very invasiveness of the invasion) is determined by the manner and justification of the invasion. The invasion itself is dependant upon the good or bad reasons of the invader; those reasons are not something to be balanced against a certain preexisting right, but are themselves part of the determination of whether any right is at stake at all. Hence, there is no need to "balance interests" - though there is a need to consider the extent to which searchers have breached norms of civility. I will consider each of these in turn.
Identifying privacy with preserving the inviolability of physical spaces (e.g., the home), autonomy, or information control n105 disregards the social meaning behind these aspects of privacy. Why do we rope off certain decisions, relations, information, and spaces as "private"? One obvious answer is to preserve the individual from assimilation by the community. Another is to promote autonomy. Yet the very idea of an individual is a social idea. As Emile Durkheim stressed in his criticism of Rousseau's imagined "state of nature," the understanding of individuals as meaningfully separable from the group only occurs in a certain kind of society - a modern society in which the division of labor differentiates its members. n106 Hence, the way individualism is articulated and structured depends on a set of community practices and norms that divide the public from the private, not on a presocial metric of distance or data. n107 [*30] Outside those norms, there is neither privacy nor an individual - neither has been invented yet.
Professor Robert Post makes a most convincing case that the privacy tort is tied to community norms, not just to the subjective (presocial and individual) mental distress of the plaintiff. He notes that the concept of invasion is one defined by community norms - the "reasonable person" - and that courts award nominal damages for invasions not accompanied by allegations of actual harm. n108 The sense that the defendant's intention is part of the invasion itself is strengthened by the fact that, in most jurisdictions, the tort of invasion of privacy cannot be accomplished negligently. n109
Because the tort traces community norms of respect - the right of a person to be treated in accordance with his or her "social personality" - it "safeguards rules of civility that in some significant measure constitute both individuals and community." n110 Privacy rules protect the self from society, but also society from the self. One is "embarrassed" by intimate revelations about others, as well as revelations about oneself. Indecent exposure is a crime; lesser forms are moments of social discomfiture. n111
[*31] The refined nature of privacy norms is also not captured by metrics like information flow or physical space. Sociologist Erving Goffman, an acute observer of privacy norms, sums up the difficulty:
It is a central feature of personal space that legitimate claim to it varies greatly according to the accountings available in the setting and that the bases for these will change continuously. Such factors as local population density, purpose of the approacher, fixed seating equipment, character of the social occasion, and so forth, can all influence radically from moment to moment what it is that is seen as an offense. n112
For example, sitting next to a stranger on an empty bus would feel uncomfortable and invasive, though it is perfectly acceptable in a crowded bus. Standing with one's back to the door in an elevator might cause other passengers to feel threatened, though that is not the case in a subway car. Eye contact with strangers on a subway is invasive; eye contact with strangers at a bar is inviting; eye contact with strangers at a basketball game is friendly; refusing to make eye contact with friends is offensive. n113 Privacy is not a zone that preexists social interaction, but is social interaction itself.
The common-law method at work in the tort of invasion of privacy to some extent allows for these nuances and contextuality. For example, courts recognize that, even in "public spaces," [*32] privacy can be invaded by too much attention n114 - this point is acknowledged by statute in recent stalking laws. n115 Moreover, liability depends on how, where, to whom, and about what the information is disclosed - the amount of data disclosed is no measure of privacy. n116 The standard boilerplate in the case law recognizes the nuanced nature of privacy claims:
As might be expected, "the question of what kinds of conduct will be regarded as "highly offensive' intrusion is largely a matter of social conventions and expectations." For example, while questions about one's sexual activities would be highly offensive when asked by an employer, they might not be offensive when asked by one's closest friend.... A Court considering whether a particular action is "highly offensive" should consider the following factors: "the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded." n117
One prime example of the social and relational nature of privacy in the tort cases is their recognition that exposing places or facts to one set of intimates does not forfeit one's right to privacy from others. n118 In the leading case of Huskey v. NBC, n119 an inmate sued when he was filmed exercising in the prison's "exercise cage," wearing only gym shorts. Though NBC claimed that Huskey's privacy was not invaded because other inmates and guards could see him, the court disagreed: "[Plaintiff's] visibility to some people [*33] does not strip him of the right to remain secluded from others. Persons are exposed to family members and invited guests in their own homes, but that does not mean they have opened the door to television cameras." n120
In the Fourth Amendment context, these lessons were learned the hard way. At first, the Supreme Court attempted to define the right against unreasonable searches and seizures as a bounded rule based on the intrusion into preexisting private physical spaces. In Olmstead v. United States, n121 the Court faced the question whether wiretapping without a warrant was an unreasonable search. The Court held that it was not because "the evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants." n122 Justice Brandeis dissented, echoing comments he had made in his famous law review article: n123
The makers of our Constitution...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, whatever the means employed, must be deemed a violation of the Fourth Amendment. n124
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. n125
The unwieldiness of the Court's attempt to formulate search and seizure law by reference to a simple rule of physical intrusion soon became obvious, as it was forced to distinguish between a microphone placed against the wall of a private office n126 and a microphone inserted into a party wall so as to make contact with a [*34] heating duct, n127 a distinction that patently made no difference to the privacy invasion.
The Court in Katz v. United States n128 famously announced that the Fourth Amendment protects persons, not places, and that the Fourth Amendment could be violated when police place a listening device in a public phone booth without intruding into any protected physical area. Justice Harlan's famous concurring opinion ventured to state the now-standard language - one must have an "expectation" of privacy that "society is prepared to recognize as "reasonable.'" n129 After Katz, Fourth Amendment doctrine requires the same kind of contextual, case-by-case analysis that the right to privacy tort does, turning on social norms of invasion. Harlan himself articulated this point in a later case, arguing that "our expectations, and the risks we assume, are in large part reflections of the laws that translate into rules the customs and values of the past and present." n130
The cases in the Fourth Amendment context, however, are not always consistent in their recognition that privacy is relational and not about inaccessibility. Courts still sometimes speak as though privacy is a physical space or an item of information that, once entered or disclosed, is no longer private. For example, in Smith v. Maryland, n131 the Court justified a warrantless installation of a pen register (which records the telephone numbers called on a phone) on the ground that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties [i.e., the telephone company]." n132 And in California v. Greenwood, n133 the Court justified its decision that no privacy interest was at stake when officials combed through a suspect's garbage, in part because "respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector." n134 The dissent, on the other hand, rejoined that the right to privacy did not concern private or public spaces so much as "commonly accepted notions of civilized behavior." n135
However, in Michigan v. Tyler, n136 the Court recognized that exposing a house to emergency personnel, such as firefighters, did [*35] not destroy the privacy of the owner, and that the firefighter's right to look around in the home would depend on the firefighter's reasons for doing so. And, in O'Connor v. Ortega, n137 the Court recognized that exposing a worker's desk to a supervisor and exposing a worker's desk to police were qualitatively different invasions of privacy, even if the information discovered was the same. A relational understanding may also be the basis for distinguishing administrative searches from searches for evidence of criminal conduct: n138 administrative searches do not have the defamatory implications of searches for criminal violations and as a result may involve less of an intrusion on dignity.
The reasonable expectation of privacy analysis comes closer to the tort law understanding of invasion of privacy, but the form of analysis still assumes that privacy preexists the interaction between defendant and police. As the next section will show, this assumption represents a divergence from tort law and leads to interest balancing.
B. Invasion and Intention
Though the Fourth Amendment doctrine has to some extent learned the lessons taught by the common-law tort, there is still a major difference: the tort recognizes that the intention of the invader is constitutive of the invasion, while the Fourth Amendment cases seem to assume that the two are separate elements to be balanced. The upshot of this mistake is to turn rights into interests and to obscure the fact that part of the injury relates to dignity: humiliation or disrespect.
The Restatement (Second) of Torts defines the tort of intrusion upon seclusion as follows: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." n139 The case law is clear that the offensiveness of the invasion (the invasiveness of the invasion) turns on the reasons and intentions of the invader. Most of these cases involve news media invasions, and courts treat the reason for and manner of the intrusion as critical to the determination of liability. For example, in Miller v. NBC n140 the [*36] court reversed a grant of summary judgment in favor of NBC on plaintiff's claim of intrusion and emotional distress. An NBC film crew had entered plaintiff's house without her consent along with paramedics and filmed the paramedics' futile efforts to resuscitate plaintiff's husband. The court remarked:
Not only was her home invaded without her consent, but the last moments of her dying husband's life were filmed and broadcast to the world without any regard for the subsequent protestations of both plaintiffs to the defendants. Again, the defendants' lack of response to these protestations suggests an alarming absence of sensitivity and civility. The record reflects that defendants appeared to imagine that they could show or not show Dave Miller in extremis at their pleasure, and with impunity. n141
The importance of the reason for the invasion is even clearer in cases involving nonmedia spying cases. Use of hidden cameras, listening devices, or peep holes for sexual gratification or harassment is clearly actionable. n142 However, when defendants [*37] have spied for legitimate or even worthy reasons, the courts have declared there to be no invasion of privacy. For example, the use of a hidden camera by an animal rights activist to record animal abuse was no invasion of privacy. n143 The use of a 1,200 millimeter camera lens to watch plaintiff in his home, in order to discover whether plaintiff's claim of injury was bona fide was no invasion of privacy. n144 A bank's interest in appraising judgment-debtor's property made its intrusion reasonable. n145 The interest of an adjoining landowner in the proper handling of hazardous waste at an oil treatment facility justified intensive scrutiny with binoculars, camera, and telescope from a platform next door. n146 Most controversially, peeping in a window and photographing former wife's lesbian lover in the nude was not an invasion of privacy because of the defendant's concern for his daughter, who was in his ex-wife's custody. n147 Though in my view this case highlights concerns with the common-law model, n148 a similar result would be uncontroversial if the concern were child abuse rather than exposure to extramarital or lesbian sexual relations. The better [*38] the justification, the less offensive the spying conduct seems to be. As one court summed up, "Information collecting techniques that may be highly offensive when done for socially unprotected reasons - for purposes of harassment, blackmail or prurient curiosity, for example - may not be offensive to a reasonable person when employed by journalists in pursuit of a socially or politically important story." n149 In other words, the sense of invasion evaporates, it is not merely counterbalanced. n150 As Prosser puts it, "There is no tort when the landlord stops by on Sunday morning to ask for the rent." n151
The most striking example of the courts' sensitivity to intent is the opposed results in Sipple v. Chronicle Publishing Co. n152 and Diaz v. Oakland Tribune, Inc. n153 In Sipple, a newspaper columnist had commented on the homosexuality of a man who had forestalled an attack on President Ford. The columnist speculated that the fact gave the president pause and accounted for his apparent lack of gratitude. The columnist also noted that the incident would go far toward undermining stereotypes of gay men. In Diaz, a columnist revealed that a local student body president had undergone a sex-change operation, and the columnist joked that female classmates might want to make "other showering arrangements" in physical education classes. n154 The two cases, while involving the disclosure of similar facts, were treated differently by the courts. The Sipple court determined that the defendants "were prompted by legitimate political considerations" n155 and allowed summary judgment in their favor, while a judgment notwithstanding the verdict in Diaz was inappropriate, given that defendant's "attempt at humor at Diaz's expense removed all pretense that the article was meant to [*39] educate the reading public." n156
Though counterintuitive from an understanding of privacy as merely a quantitative limitation on information or contact, this focus on defendant's intent as constitutive of the invasion rather than as a defense fits with a relational understanding of privacy. As Erving Goffman insightfully observed:
In discriminating between encroachments and self-violations, some notion of the authorship of the violation was relevant, whether the author was or was not the claimant, and whether he was or was not himself the impediment to the claim. Someone's intention and will were thus constitutive features of the resulting description.... Both of the individuals involved in a territorial offense - the claimant and the counter-claimant - may be seen to have acted innocently and inadvertently, so that in this particular instance no one is held to be the author of the offense. n157
By contrast, Fourth Amendment cases treat the question whether there was a search separately from the question whether that search was justified. The privacy interest is then balanced against the governmental interest. n158 The balance in such cases must come out in favor of society - surely one citizen's interest cannot outweigh the interests of countless others. More insidiously, however, interest balancing construes rights as somehow socially preexisting monolithic preserves to which an individual may make a valid claim regardless of the context. But the tort recognizes that an invasion is constituted by the interaction between people; it is not the simple diminution of someone's "interest." A tap on the shoulder to get someone's attention is not a battery and invades no "right"; a tap on the shoulder to provoke or humiliate is an assault and an invasion of a right. n159 Privacy rights work the same way in tort law, yet Fourth Amendment doctrine creates an artificial separation between the [*40] "invasion" and its "justification," claiming to ignore as irrelevant the "subjective motivation" of an officer.
In the recent case of Whren v. United States, n160 the Court made clear that it would not inquire into an officer's intent in pretextual traffic stops, as long as the stop itself was based on probable cause to believe an offense, however minor, had been committed. In Whren, plainclothes vice squad officers were patrolling a "high drug" area in an unmarked car. They then stopped defendants, whom they suspected of drug dealing based on their temporary license plates and their youth, n161 for failing to signal a right turn and speeding away at an ""unreasonable' speed." n162 The Court rejected the invitation to inquire into the officers' motivations, holding unanimously that the "constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." n163 The Court distinguished inventory search cases, in which it had suggested that pretext might be relevant, as not requiring probable cause, and concluded that probable cause already struck the appropriate balance between individual interest and public interest. The Court also distinguished cases in which the Court had balanced individual privacy interests n164 against governmental interests in two ways: first, as not involving searches supported by probable cause; second, in cases where the manner in which the search or seizure was conducted was extraordinary:
[The search or seizure was] unusually harmful to an individual's privacy or even physical interests - such as, for example, seizure by means of deadly force, unannounced entry into a home, entry into a home without a warrant, or physical penetration of the body. The making of a traffic stop out of uniform does not remotely qualify as such an extreme practice, and so is governed by the usual rule that probable cause to believe the law has been broken "outbalances" private interest in avoiding [*41] police contact. n165
It is disrespectful to presume someone is guilty based on mere suspicions or stereotypes and to concoct pretexts to search them, and that was the violation here. Absent the pretext, there is no invasion of privacy in being stopped for a traffic violation - the officer's good reason for the action eliminates its offensiveness.
Yet, when the government invasion loses its moorings in the government's reason for invading, the invasion is, by common-law standards, unjustified and therefore an affront. The extent of the affront caused by the "angry performance" of a shopkeeper in accosting a suspected shoplifter and demanding that she empty her purse and pockets was characterized by one court as "a charade on the public highway that destroys [plaintiff's] seclusion and subjects her to humiliation by suggesting that she is a felon." n166 The court concluded that it amounted to "an unreasonable and serious interference with [plaintiff's] desire for anonymity and an intrusion beyond the limits of decency." n167 The Court in Terry v. Ohio n168 used strong language as well:
It is simply fantastic to urge that such a procedure [a forcible stop and frisk by police] performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a "petty indignity." It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly. n169
This is why, despite the windfall to both law enforcement and privacy interests (narrowly conceived) provided by a system in which law enforcement officers pick and choose their searches based not on the literal language of broad traffic codes but on the basis of their suspicion of serious crimes, privacy interests are nonetheless invaded by pretextual searches. The indignity of being suspected and singled out in public for committing a serious crime invades both privacy and reputation. n170 In short, the defendant's reasons may be sufficient to make otherwise inoffensive conduct offensive. For these reasons, state courts have been rejecting Whren on state constitutional grounds. n171
[*42] Moreover, Fourth Amendment doctrine misses the fact that the invasiveness of the search is a product of both its lack of justification and its manner. As the Bennett v. Norban court said, the investigation need not be carried out as an "angry performance." n172 However, except for extreme cases, the Supreme Court has rarely looked at the extent of the force, indignity, or offensiveness of the search. n173 Professor Stuntz has highlighted this omission, noting that courts have been overly concerned about "informational" privacy, while failing to protect against physical force and harms to dignity associated with it. n174 Most recently, in United States v. Ramirez, n175 the Court refused to require heightened justification for a no-knock entry in which agents did damage to property, though the Court left open the possibility that "excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment." n176 More disturbing are Terry-stop cases in which the courts attend only to the reasonable suspicion element, but do not evaluate the need for force, including handcuffs, guns, and extended detention. n177
[*43] The manner of a police search comes up primarily in qualified immunity cases, not criminal cases. This places some strain on the doctrine, as courts seem more willing to find transgressions of manner in the qualified immunity cases. n178 The lesson, however, is clear: part of what makes searches invasive is the attitude and manner of the invader. Neither, however, is "secret" or "subjective." Both, rather, are shown by the circumstances surrounding the search (e.g., use of unmarked cars, stops by officers on "drug patrol" or "gang patrol" coupled with routine searches of all stopped vehicles) n179 and the words and actions of the [*44] invader (polite or harassing).
A. Constitutional Criminal Law
Common-law articulations of rights avoid the dilemma of either framing rights as rules or balancing them ad hoc as interests. Rights in a common-law system can track the relations of respect that give them normative force, instead of becoming divorced from their justifications as rules inevitably do. By tracking the contextual practices of respectful behavior in the community, they also retain their peremptory and imperative character (unlike interest-talk). In the common-law idiom, rights are a matter of right relations, and cannot be defined apart from or before community.
In the Fourth Amendment context, for example, assuming the analogy to tort privacy holds at least in part, there would be no balancing of "privacy interests" against societal interests. Indeed, there would be no meaningful sense of privacy rights preexisting interactions with governmental agents, since the right to privacy would be reconceived (perhaps more in keeping with the language of the Constitution) as a right to be free from unreasonable searches and seizures (a right to certain forms of interaction, not to areas of isolation or secrets). The question would be: Did the government agents have good reasons for their actions and did they conduct their investigation in a way respectful of the defendant?
With these concerns guiding the analysis of privacy rights, the doctrine would, of course, look very different than it does now. For example, evidence might be suppressed because of physical or verbal abuse on the part of police officers. Typically, police behavior is not scrutinized, unless it is relevant to the question whether the police-defendant interaction should be characterized as a consensual encounter, a Terry stop, or a custodial arrest, or whether the police conduct is so extreme as to "shock the conscience."
Second, police intentions would be relevant. n180 Because an [*45] offense to dignity is distinguished from innocent conduct in part because of the defendant's intent, the Court would have to suppress evidence obtained by unjustifiable means or pretext. As a result, assuming the Supreme Court refuses to enact bright-line rules allowing searches in certain circumstances without regard to their justification, like the search-incident-to-arrest rule, n181 and the car-search exception, n182 pretextual searches would become less prevalent.
Along with suppressing evidence gathered through attempts to evade normative requirements, the Court might choose to expand the Leon good-faith exception. n183 If the Court took the view that invasions must be intentional, the expansion would allow a subjective reasonableness defense to a bad search (rather than current objective probable cause). If, on the other hand, the Court took the view that negligent invasions were also wrongful, the current case law would require little change, as the Court already recognizes objective good faith in its probable cause standard. n184
A more difficult issue to reconcile with this approach to privacy rights is undercover investigation and the use of deception in interrogations and investigations. From a tort standpoint, fraud is an invasion, an unacceptable way to interact with others (unless telling the truth would lead to dire consequences, for example, to protect a witness or recover a victim, but not to accomplish the goals of investigations in the mine-run of cases in which deception is now used). n185 Currently, no consideration is given to these issues at all: we take for granted that police will use fraud and deceit to [*46] investigate crimes, n186 and our tolerance is bounded only by the very uncertain limit set by due process, if any limit is set at all. n187 It would be an enormous shift from current practices to require officers to toe the tort line here.
Another significant effect of the new doctrine would be a change in qualified immunity law. Current doctrine allows for liability only if a constitutional requirement was "clearly established" by case law. n188 But tort law always assumes that the defendant has notice of what is reasonable, by simply being a member of the community. Indeed, if Fourth Amendment practice were to track normal relations of mutual respect, it would be perhaps easier, rather than more difficult, for police officers to comply with constitutional demands. n189
B. Wider Implications
Beyond criminal constitutional law, retaining a common-law approach to constitutional questions and thinking about rights as right-relations rather than goods or spheres of autonomy would help resolve some current questions about the nature and extent of constitutional rights.
1. Are Constitutional Rights Personal?
Given that we grant wrongdoers standing to assert constitutional rights, Professor Matthew Adler has forcefully argued that constitutional rights are not personal moral rights, but [*47] positive-law creations that allow challenges to particular rule formulations. n190 For example, the constitutional plaintiff who challenges the flag-burning statute may also be an arsonist who could have been (and should have been) prosecuted under a properly drafted statute. Professor Adler argues that the arsonist has no personal moral right at stake - he is allowed to sue only because, for reasons of constitutional policy, we accord him standing.
Thinking of rights as rights to respectful practices, not rights to goods or spheres of liberty, helps explain that the arsonist/flag-burner may indeed have a personal moral right to sue: even if he has violated some other rule, he has still been wronged by the state in being punished for the wrong reason, just as a suspect arrested for "contempt of cop" has been wronged even if he is guilty of some other crime, and a student flunked for being contentious has been wronged even if he would have flunked anyway. n191
2. Why Is Governmental Intent Relevant to Rights?
Under traditional theories of rights, it is hard to explain why we strike down laws "on their face" when their only objectionable feature is that they were passed with a wrongful intention. If the policy itself is unobjectionable, why should an objectionable intent matter? n192
Understanding that rights are about dignified treatment makes this much less puzzling. As with tort law, the intent of the government actor is not a matter of moral indifference separable from the treatment of the defendant. Tort law, like constitutional law (and criminal law), does not make certain conduct wrong (like tapping someone on the shoulder). Intent matters. The tapping may not be offensive if done in order to politely get someone's attention, for example, but it is offensive if done to start a fight. Taking someone else's raincoat is not wrong unless one knows the raincoat belongs to someone else. Constitutional rights ought to and often do work in a very similar fashion: it is not wrong to prosecute someone for arson; it is wrong to prosecute someone for free speech. Intent, even if it is legislative intent, matters, n193 as [*48] constitutional law recognizes in many (otherwise inexplicable) equal protection cases. For example, it does and should make a difference to us that a legislature passed a no-door-to-door-soliciting law because of prejudice against Jehovah's Witnesses, even if it is justifiable for other reasons. It does and should matter to us that the legislature adopted a "moment of silence" law in order to sneak prayer back into the schools. It does and should matter to us that the legislature provides separate schools for blacks and whites out of racial prejudice, even if the schools are in other respects equal.
Dignity-based rights conceptions explain why we strike down laws "on their face" when they demean or degrade a group, instead of waiting to see what their effects are or if they will be enforced unfairly. n194 The legislature has violated constitutional dignity rights in just passing such laws, regardless of any further concrete effects on citizens.
3. Resistance to Erosion
Remaking constitutional rights into policy instruments rather than moral requirements risks degrading them. Recognizing the dignity basis of rights, on the other hand, results in rights that will better resist attempts to erode them as mere aids to policy; for example, the exclusionary rule was eroded as soon as it became merely a deterrent measure rather than a personal right. n195
4. Tailoring, Manner, and Application
Making clear that rights are about right relations makes it easier to miter government purpose to citizen purpose - citizens, at least in many areas of constitutional law, n196 have the right to [*49] respectful treatment, but not necessarily a right to any particular measure of liberty or goods. This right to respectful treatment is not merely another way of saying "procedural due process." Respectful treatment may also mean that government must show respect for citizens in "substantive" ways as well, such as following well-established norms of respect for privacies, friendships, family relationships, professions, education, etc. These norms do not "insulate" citizens from government control, but dictate when, how and for what reason interference is justified. Even procedural protections can be understood (wrongly) as balancing individual interests (in accuracy, for example) against governmental interests (in efficiency, for example). But even an accurate procedure may be a demeaning one (use of truth serum, for example).
5. Rights and Practices
Making law mirror cultural practice (even "good" cultural practice) n197 has its drawbacks, too. Rights rest on cultural norms and practices' "felt distinctions." Courts will not always do what "we" (whoever that is) think is right. The integration of community norms into legal rules results in cultural hegemony (as Post points out), n198 but the left-out community, or the foreign, or the historical, or even the fictional, will always provide comparisons for critique and reform. n199 Mostly, the issue of good practice has to be worked out in the world before it can play a role in the courtroom.
I do not believe, however, that other ways of adjudicating rights are somehow more capable of changing harmful practices than common-law articulation. Rights as rules have to be construed in the trenches of individual cases and their general terms must be fleshed out. "All deliberate speed" n200 meant little in the abstract, and became rather hollow in many concrete cases. Focusing on respectful treatment and bootstrapping from case to case is the way law can change to meet new challenges, though law goes only part of the way there.
[*50] In sum, the common law's virtues are also its flaws: it is fluid, open textured, piecemeal, and tied to community practices and the judge's intuitions of analogical resemblance. It is not perfect. It does not promise revolutionary change, but it does make evolutionary progress. I submit that it is the best we can do.
Returning dignity and respect to the core of our conception of many constitutional rights can help us resist the erosion of rights into interests. Focusing on respect practices enables rights to be joined with public welfare concerns by allowing for situational adjudication and by emphasizing the manner and intent of government's interactions with its citizens more than how much government "takes away" citizens' property or autonomy. Respect-rights are concerned with dignified, caring interaction, and such rights can be, and should be, respected absolutely and imperatively. But they may still be unruly.
n1. See Jeremy Waldron, Rights and Needs: The Myth of Disjunction, in Legal Rights: Historical and Philosophical Perspectives 87-109 (Austin Sarat & Thomas R. Kearns eds., 1997) [hereinafter Waldron, Rights and Needs].
n2. For the moment, I restrict my argument to Fourth Amendment rights, though I also believe the same argument to hold true for equal protection rights. First Amendment speech rights, however, are more difficult to characterize as practices, as they appear to be "antipractice" practices, that is, ways in which individuals are allowed to resist the dominant culture and its institutional instantiations. See, e.g., Frederick Schauer, Speaking of Dignity, in The Constitution of Rights: Human Dignity and American Values 178, 184-90 (Michael J. Meyer & Williams A. Parent eds., 1992). Because issues concerning the First Amendment are beyond the scope of this Article, I will leave the argument for another day, though I still sense that the "negative freedom" view of the First Amendment is unhelpful. Perhaps we do have practices allowing for nonconformity and heated discourse - families have their (often beloved) rebels, and villages (and law school faculties) have their "colorful characters" who often say what others might like to say but are afraid to say. These bell-curve outsiders keep things interesting and spark creativity, change, and discourse; it is hard to imagine a vibrant cultural life without them. However, it is hard to stretch this idea far enough to make room for Nazis, racist groups, and other advocates of cruelty or hate that strike at the very heart of the idea of equal dignity and respect for all. See, e.g., Martha Minow, Equality and the Bill of Rights, in The Constitution of Rights: Human Dignity and American Values, supra, at 118, 127. At any rate, accepting a practice-based view would mean that the First Amendment case law might look very different than it does now.
n3. See Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (1923). Hohfeld distinguished claim-rights from other kinds of legal situations courts often call "rights": liberties (or the absence of a duty to forbear), powers (to change the legal status of others), and immunities (or protection against having one's own legal status changed). See id. at 35-64. For a lucid explanation and defense of Hohfeldian conceptual analysis, see Matthew H. Kramer, Rights Without Trimmings, in A Debate over Rights: Philosophical Inquiries (Matthew H. Kramer et al. eds., 1998); see also, Brian Bix, Jurisprudence: Theory and Context 115-19 (2d ed. 1999).
n4. I sidestep here the dispute about whether every right entails a duty on the part of an individual, as well as disputes about whether rights must be claimed. For discussion of these points, see A Debate over Rights: Philosophical Inquiries, supra note 3.
n5. See Joseph Raz, Legal Rights, in 2 Philosophy of Law: Rights and Their Foundations 67 (Jules Coleman ed., 1994).
n6. See H.L.A. Hart, Bentham on Legal Rights, in 2 Philosophy of Law: Rights and Their Foundations, supra note 5.
n7. Even Hart thought that the idea of claim-right did not exhaust the usefulness of the term "right" to refer to fundamental and inalienable immunity-rights of the sort contained in the Bill of Rights. See id.
n8. See Jeremy Waldron, Introduction to Theories of Rights 11-12 (Jeremy Waldron ed., 1984) (suggesting that the choice vs. interest theory is only "obliquely related" to the more substantive debate).
n9. See Ronald Dworkin, Taking Rights Seriously 185 (1978) ("The Constitution fuses legal and moral issues, by making the validity of a law depend on the answer to complex moral problems."); Thomas Grey, Do We Have an Unwritten Constitution?, 27 Stan. L. Rev. 703 (1975).
n10. See Immanuel Kant, Fundamental Principles of the Metaphysics of Morals 40 (Thomas K. Abbott B. D. trans., 1987) [hereinafter Kant, Fundamental Principles].
n11. See id. ("Will is nothing but practical reason.")
n12. See Alasdair MacIntyre, After Virtue: A Study in Moral Theory 209 (2d ed. 1984) ("The concept of an intelligible action is a more fundamental concept than that of an action as such."); see also Donald Davidson, Essays on Actions and Events 221-22 (1980). Davidson states:
Crediting people with a large degree of consistency cannot be counted mere charity: it is unavoidable if we are to be in a position to accuse them meaningfully of error and some degree of irrationality.... To the extent that we fail to discover a coherent and plausible pattern in the attitudes and actions of others we simply forego the chance of treating them as persons.
n13. Kant, Fundamental Principles, supra note 10, at 49.
n14. See Alan Gewirth, Human Dignity as the Basis of Rights, in The Constitution of Rights: Human Dignity and American Values, supra note 2, at 10, 22-24. Gewirth explains Kant's argument that dignity can be derived from agency in the following way: "In acting, I ascribe value to my purposes. In valuing my purposes, I implicitly value myself, as the "end' of my own desires. Because I see others as agents with purposes like me, I must value them, too." Id. I would amend Gewirth's language slightly: the ends and purposes we have must themselves be those of our rational selves, not merely our natural selves. This amendment makes the argument a bit more difficult to make, since it seems to presuppose what it proves.
n15. Kant, Fundamental Principles, supra note 10, at 58.
n16. Id. at 62.
n17. See, e.g., George Fletcher, The Right and the Reasonable, 98 Harv. L. Rev. 949, 978-79 (1985) ("An absolute right occupies the available moral space. It is logically impossible for someone resisting the assertion of a right also to have a right.").
n18. See Kant, Fundamental Principles, supra note 10, at 69.
n19. Id. at 40.
n20. See Robert Nozick, Anarchy, State, and Utopia (1974).
n21. See John Stuart Mill, Utilitarianism, Liberty, and Representative Government 68 (1947). Mill states:
Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by means other than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formulation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.
n22. See Immanuel Kant, The Philosophy of Law 56-57 (W. Hastie trans., Edinburgh, T. & T. Clark 1887) (1797). For Kant, the positive law only pertains to outward behavior as we cannot coerce people to act on maxims of reason - it would be self-contradictory to force someone to be free. See id. at 50-51.
n23. See Kant, Fundamental Principles, supra note 10, at 78 ("[A] free will and a will subject to moral laws are one and the same.").
n24. See id. at 77-78.
n25. See, e.g., John Finnis, Natural Law and Natural Rights (1980) (presenting Finnis's concept of basic human needs, which flows from Aristotle via Acquinas); Martha Nussbaum, Capabilities and Human Rights, 66 Fordham L. Rev. 273 (1997).
n26. See, e.g., Michael J. Perry, Is the Idea of Human Rights Ineliminably Religious?, in Legal Rights: Historical and Philosophical Perspectives, supra note 1, at 205.
n27. See, e.g., John Locke, Of Civil Government, in Philosophers Speak for Themselves: Descartes to Locke 455, 456-62 (T.V. Smith & Marjorie Grene eds., 1940).
n28. See, e.g., David P. Gauthier, Morals by Agreement (1986); Thomas Hobbes, Leviathan, in Philosophers Speak for Themselves: Descartes to Locke, supra note 27, at 157, 188-96.
n29. See, e.g., H.L.A. Hart, Problems of the Philosophy of Law, in Essays in Jurisprudence and Philosophy 88, 111-19 (1983).
n30. Just how needs translate into rights is a vexed question, causing complaints that the philosophical sin of a "naturalistic fallacy" has been committed.
n31. For a helpful essay on the intellectual history of rights, see N.E. Simmonds, Rights at the Cutting Edge, in A Debate over Rights: Philosophical Inquiries, supra note 3, at 113-232.
n32. The metaphor of rights as trumps is Dworkin's. See Ronald Dworkin, Rights as Trumps, in Theories of Rights, supra note 8, at 153, 153.
n33. See Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363 (1984); Peter Westen, The Rueful Rhetoric of Rights, 33 UCLA L. Rev. 977 (1986).
n34. See, e.g., Michael J. Perlin, On Sanism, 46 SMU L. Rev. 373 (1992) (arguing that the sanity/insanity line is a cultural construction based on "sanist" attitudes).
n35. See, e.g., J.M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 Yale L.J. 105 (1993); Drucilla Cornell, Bodily Integrity and the Right to Abortion, in Identities, Politics, and Rights 21, 29-32 (Austin Sarat & Thomas R. Kearns eds., 1997); Pierre Schlag, The Problem of the Subject, 69 Tex. L. Rev. 1627 (1991).
n36. See Michael J. Sandel, Liberalism and the Limits of Justice 47-65 (2d ed. 1998).
n37. Wendy Brown, Rights and Identity in Late Modernity, in Identities, Politics, and Rights, supra note 35, at 123.
n38. See Charles Taylor, Sources of the Self: The Making of the Modern Identity 11-12 (1989); see also Sandel, supra note 36.
n39. See Emile Durkheim, On Morality and Society: Selected Writings 114-33 (Robert N. Bellah ed., 1973).
n40. The concept of the individual is part of our very language. See Dorothy Lee, Freedom and Culture 78, 78-80 (1959). But see id. at 80-88 (discussing the treatment of symbols in various nonwestern cultures).
n41. Cornell, supra note 35, at 31.
n42. See, e.g., John Comaroff, The Discourse of Rights in Colonial South Africa: Subjectivity, Sovereignty, Modernity, in Identities, Politics, and Rights, supra note 35, at 193-236. Closer to home, U.S. policy toward Native American tribes has oscillated between acknowledging (some) tribal sovereignty and keeping tribal lands in "trust," and promoting assimilation (and predation) through Allotment Acts, depending on whether Congress thought, in any given era, that Natives were "ready" for rights or not. See Marilyn J. Ward Ford, Indian Country and Inherent Tribal Authority: Will They Survive ANCSA?, 14 Alaska L. Rev. 443 (1997).
n43. See, e.g., Robert H. Bellah et al., Habits of the Heart: Individualism and Commitment in American Life (1985); Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991).
n44. Karl Marx, On the Jewish Question, in Karl Marx: Early Texts 104 (David McLellan ed. & trans., Alden & Mowbray Ltd. 1977) (1844). Marx states:
None of the so-called rights of man goes beyond egoistic man, man as he is in civil society, namely an individual withdrawn behind his private interests and whims and separated from the community. Far from the rights of man conceiving of man as a species-being, species-life itself, society, appears as a framework exterior to individuals, a limitation of their original self-sufficiency. The only bond that holds them together is natural necessity, need and private interest, the conservation of their property and egoistic person.
n45. See, e.g., Robin West, Caring for Justice 84-88 (1997); Patricia Williams, The Alchemy of Race and Rights 153 (1991); Kimberle Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1366 (1988) ("As demonstrated in the civil rights movement, engaging in rights rhetoric can be an attempt to turn society's "institutional logic' against itself - to redeem some of the rhetorical promises and the self-congratulations that seem to thrive in American political discourse."); Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectives from the Women's Movement, 61 N.Y.U. L. Rev. 589 (1986). The point is also made by traditional liberals. See Joel Feinberg, The Nature and Value of Rights, in 2 Philosophy of Law: Rights and Their Foundations, supra note 5, at 119-33; Thomas E. Hill, Jr., Servility and Self-Respect, in 2 Philosophy of Law: Rights and Their Foundations, supra note 5, at 135-52; Waldron, Rights and Needs, supra note 1, at 104-05.
n46. Williams, supra note 45, at 153.
n47. See, e.g., Richard L. Abel, Nothing Left but Rights: Law in the Struggle Against Apartheid, in Identities, Politics, and Rights, supra note 35, at 239-70.
n48. For the well-trodden scholarly ground on the rules/standards, rights/interests swings in the Court's jurisprudence, see sources cited supra note 3.
n49. I recognize that many legal theorists have tried to articulate rights theories that define legal rights separately from moral rights, for example, legally enforced or enforceable claims that others act or refrain from acting. See sources cited supra note 3. However, any legal outcome can then be described as enforcing a "right" - and "I have a right" means nothing much different from saying "I win." I think the importance and rhetorical power of what "rights" mean is lost if one does not see that a claim of right is, at its core, a claim of moral right, with normative underpinnings.
n50. Williams, supra note 45, at 164.
n51. See Benjamin C. Zipursky, Rights, Wrongs and Recourse in the Law of Torts, 51 Vand. L. Rev. 1, 64 (1998) (emphasizing the importance of standing ideas in tort law).
n52. See Malcolm Feeley, The Process Is the Punishment (1979). One might argue that waivable due process rights (like the right to trial) are unqualified grants of dignity regardless of social context. An innocent defendant, however, must either lie by pleading guilty or stand trial, and neither prospect may be a dignified one, at least if the trial is the equivalent of standing in the stocks or pillory and involves separation from children, family, work, and other obligations.
n53. See, e.g., Joseph Raz, Right-Based Moralities, in Theories of Rights, supra note 8, at 192 ("The ideal of personal autonomy... requires not merely the presence of options but of acceptable ones.").
n54. 349 U.S. 294 (1955).
n55. Dworkin, supra note 9, at 198.
n56. In Jack Balkin's Kant-inspired terminology, it is a transcendental idea. See J.M. Balkin, Cultural Software: A Theory of Ideology 142-70 (1998).
n57. Respect-practice is a necessary, but not always sufficient, part of a right. The right may be filled out in other ways, including ideas of spheres of autonomy/liberty and entitlements to goods. Nor do I suggest that rights are sufficient for a full understanding of morality. See Raz, supra note 53. The idea that the centrality of respect itself does not dictate any particular social arrangements probably separates my views here from those of Dworkin that citizens be accorded "equal concern and respect" by their government. Dworkin, supra note 9, at 272-78. I also would not restrict the idea of respect to public law rights, but would apply it to private law rights as well. The government may enforce rights to respect each other as well as requiring its agents to respect its citizens, and these may be difficult to reconcile (as with group defamation laws, or debates over pornography regulation). I also think that (the relevant kind of) equality is subsumed in respect and need not be a separate requirement. We must be treated with equal respect as we are "the same" in our capacity as reasonable (whatever that means) beings.
n58. I am, however, suggesting that judges alter the way they think about some rights. Am I violating my own dictum here? I see it this way: I can point to a practice of judging (in the tort privacy cases, for example) that seems to treat rights as more than interests. The practice already exists; I am merely pointing to it. In fact, the practice of judging by "respect rights practices" is one that I would argue is older and more natural to judges than abstract interest balancing, given that the interest balancing often seems to be a post hoc rationalization (presented "cost-benefit" style for the sake of legal theoreticians) of a prior judicial intuition about how the case should come out. I am resisting the temptation to allow theory to colonize practice. I am trying to resist, anyway. (It is pretty irresistible.)
n59. See Linda Ross Meyer, Is Practical Reason Mindless?, 86 Geo. L.J. 647 (1998) [hereinafter Meyer, Practical Reason]; see also Charles Taylor, Philosophical Arguments 178 (1995) ("Practice is, as it were, a continual interpretation and reinterpretation of what the rule really means."). Taylor also asserts:
The person of real practical wisdom is less marked by the ability to formulate rules than by knowing how to act in each particular situation. There is a crucial "phronetic gap" between the formula and its enactment, and this too is neglected by explanations that give primacy to the rule-as-represented.
Id. at 177.
n60. See Ludwig Wittgenstein, Philosophical Investigations PP 86-87, 91 (G.E.M. Anscombe trans., 3d ed. 1958). We might take a third standpoint, one which is neither descriptive nor practical - the standpoint of philosophy, from which we wonder, meditate, and ponder our place in the universe. But that sort of theory does not tell us how to decide cases.
n61. For more discussion on this point, see Meyer, Practical Reason, supra note 59; see also Pierre Bourdieu, Outline of a Theory of Practice 72 (Richard Nice trans., Cambridge Univ. Press 1977) (describing "habitus" - though the description is still a bit too behavioristic); Taylor, supra note 59, at 61-78, 165-80; Brian Leiter, Heidegger and the Theory of Adjudication, 106 Yale L.J. 253 (1996).
n62. The difference between a description of practice and practice itself is the same as the difference articulated by Hart between the external and internal standpoints, see H.L.A. Hart, The Concept of Law 85-88 (1961), and the difference articulated by Kant between the standpoint we take on ourselves as creatures of nature and as creatures of reason, see Kant, Fundamental Principles, supra note 10, at 88-96.
n63. See Linda Ross Meyer, Between Reason and Power: Experiencing Legal Truth, 67 U. Cin. L. Rev. 727 (1999).
n64. The distinction between descriptions of morality and morality itself also distinguishes my use here from the "social meaning" theories, which rely on a descriptive account of practice and social meaning. See Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 Va. L. Rev. 349 (1997); Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943 (1995). For a discussion of normative understanding of practice, see Marianne Constable, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law and Knowledge 15, 85-89 (1994); MacIntyre, supra note 12, at 187-203.
n65. See Dworkin, supra note 9, at 48-58.
n66. See Taylor, supra note 59, at 34-60 (1995) (arguing that "ad hominem" forms of moral reasoning in which one argues from common intuitions or commitments is the most promising form of postmodern moral reasoning). Socrates, of course, used the same method. See Gregory Vlastos, The Socratic Elenchus, in 1 Oxford Studies in Ancient Philosophy 27 (Julia Annas ed., 1983).
n67. See Taylor, supra note 59, at 1-19 (1995) (arguing that the modern challenge for philosophy is to overcome epistemology).
n68. See Martha Minow, Rights and Cultural Difference, in Identities, Politics, and Rights, supra note 35, at 347-65.
n69. See John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733 (1998) (discussing the need to revivify right-and-duty-based doctrine in place of "policy analysis," "economic analysis," and utilitarianism); Victoria F. Nourse, Making Constitutional Doctrine in a Realist Age, 145 U. Pa. L. Rev. 1401, 1434-35 (1997) (noting how "interest-talk" seems to give up the evaluation that is judgment).
n70. A sign near my house reads "Private Road, No Vehicles Allowed," though local custom and (I think) the relevant property deeds include a public easement for access to land trust property. My four-year-old, riding her tricycle as we walked our dog along the road, asked me what it said. When I told her, she said, "We shouldn't be on here, then. My bike is a vehicle." I tried to explain - Hart and Fuller all over again.
n71. For example, double jeopardy law is confounded by the infinite number of descriptions of criminal actions (not to mention overlapping statutes) resulting in one "act" being several crimes.
n72. 414 U.S. 219 (1973).
n73. See Whren v. United States, 517 U.S. 806 (1996). Under Whren, police officers are allowed to stop cars based on traffic violations, even when the officers' motive was to search for evidence of other crimes. See id. Courts have used Whren to uphold pretextual searches incident to arrest for minor traffic violations. See, e.g., United States v. Castro, 166 F.3d 728 (5th Cir. 1999) (en banc) (upholding an inventory search after a full custodial arrest for a seatbelt violation). The Court in Castro held that the fact that the arrest was pretextual did not change the analysis.
n74. 384 U.S. 436 (1966).
n75. See, e.g., Shedelbower v. Estelle, 885 F.2d 570 (9th Cir. 1989) (holding that an interrogation does not violate the Fifth Amendment when the officer falsely told suspect that rape victim had identified a picture of him). However, the Court in Rhode Island v. Innis, 446 U.S. 291 (1980), recognized the problem of strategic obedience and altered the rule for interrogation, defining it as "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. at 301. This standard, however, was not applied in Innis (and has usually not been applied) to prevent officers from strategically avoiding "interrogation" - most courts have said that the officers' intent is not relevant. See James B. Haddad et al., Criminal Procedure: Cases and Comments on Criminal Procedure 116-22 (5th ed. 1998) [hereinafter Criminal Procedure].
n76. See, e.g., United States v. Scully, 415 F.2d 680 (2d Cir. 1969) (holding that police may release suspect after questioning to avoid "custody" finding); State v. McKnight, 243 A.2d 240 (N.J. 1968); People v. Robles, 533 N.E.2d 240 (N.Y. 1988) (holding that police may consciously delay interrogation in order to avoid Miranda requirement).
n77. See Criminal Procedure, supra note 75, at 82-129. Dorf and Sabel make the point that Miranda did not have to be read this way, but could instead have been used as an opportunity for states to focus more on the underlying right, rather than divert attention from it. However, as they point out, the risks of experimentation were too great. See Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267, 459-64 (1998).
n78. See, e.g., California v. Acevedo, 500 U.S. 565 (1991) (Scalia, J., concurring); Texas v. Brown, 460 U.S. 730 (1983) (Rehnquist, J.); Florida v. Royer, 460 U.S. 491 (1983) (Rehnquist, J., dissenting); Hulit v. States, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998) (refusing to apply warrant requirement to state constitution because the Court's warrant doctrine is a "jurisprudential mare's nest").
n79. See, e.g., Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles, 32-41 (1997).
n80. See Criminal Procedure, supra note 75, at 375-495 (explaining exceptions to the warrant requirement).
n81. See Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 31-37, 100-02 (1991).
n82. See id. at 135-66.
n83. See Schauer, supra note 81, at 137 ("There is nothing essentially just about rule-based decision-making."); Larry Alexander, Can Law Survive the Asymmetry of Authority?, in Rules and Reasoning: Essays in Honour of Fred Schauer 39-54 (Linda Meyer ed., 1999) (arguing that it is never morally justifiable to follow a rule when the result is unjust).
n84. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
n85. See Linda R. Meyer, When Reasonable Minds Differ, 71 N.Y.U. L. Rev., 1467, 1516-21 (1996) [hereinafter Meyer, Reasonable Minds]. Unfortunately, the Supreme Court's latest qualified immunity decision seems to support the more positivistic approach to qualified immunity, requiring a "case on point." Wilson v. Layne, 526 U.S. 603 (1999). Justice Stevens, however, recognized in his dissent that "the easiest cases don't even arise." Id. at 621 (citing United States v. Lanier, 520 U.S. 259, 271 (1997)).
n86. See, e.g., Ashutosh Bhagwat, Hard Cases and the (D)Evolution of Constitutional Doctrine, 30 Conn. L. Rev. 961 (1998) (decrying constitutional balancing for watering down rights and suggesting that rights remain absolute, but flexibility for hard cases comes into play in tailoring remedies).
n87. See Dworkin, supra note 9, at 191-92.
n88. See David Lyons, Utility and Rights, in Theories of Rights, supra note 8, at 111, 113, 119-20.
n89. T.M. Scanlon, Rights, Goals, and Fairness, in Theories of Rights, supra note 8, at 137.
n90. Delaware v. Prouse, 440 U.S. 648, 654 (1978); see also New Jersey v. T.L.O., 469 U.S. 325 (1985) ("Where a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard.").
n91. T.L.O., 469 U.S. at 369 (Brennan, J., concurring in part and dissenting in part).
n92. See, e.g., George M. Dery III, Are Politicians More Deserving of Privacy than Schoolchildren? How Chandler v. Miller Exposed the Absurdities of Fourth Amendment Special Needs Balancing, 40 Ariz. L. Rev. 73 (1998); Kenneth Nuger, The Special Needs Rationale: Creating a Chasm in Fourth Amendment Analysis, 32 Santa Clara L. Rev. 89, 100 (1992); Silas J. Wasserstrom, The Court's Turn Toward a General Reasonableness Interpretation of the Fourth Amendment, 27 Am. Crim. L. Rev. 119 (1989).
n93. See Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 624-32 (1989).
n94. Whren v. United States, 517 U.S. 806, 817 (1996).
n95. See id. at 818 ("Where probable cause has existed, the only cases in which we have found it necessary actually to perform the "balancing' analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual's privacy or even physical interests ....").
n96. Other commentators have suggested that constitutional rights can be articulated in a common-law fashion. See, e.g., David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996).
n97. See supra Part II.A.
n98. Although both sets of cases use similar doctrinal language (including "expectation of privacy"), courts have not relied on Fourth Amendment cases to determine the contours of the privacy tort. See, e.g., Doe v. Mills, 536 N.W.2d 824 (Mich. Ct. App. 1995). The court in Doe stated:
Plaintiffs' action is not based on a constitutional right of privacy, but on a right of privacy under the common law....
... The scope of privacy under the common law is not coextensive with a constitutional right to privacy....
... The trial court erred in relying on cases construing the Fourth Amendment as a basis for concluding that plaintiffs had somehow lost their common-law privacy rights.
Id. at 831. As the two bodies of law have remained relatively autonomous, comparison of the two is fruitful.
n99. See N.O.C., Inc. v. Schaefer, 484 A.2d 729 (N.J. Super. Ct. Law Div. 1984).
n100. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
n101. See generally W. Page Keeton et al., Prosser and Keeton on the Law of Torts, 849-68 (5th ed. 1984).
n102. See William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 Mich. L. Rev. 1016, 1020 (1995).
n103. For another interesting comparison of news media and law enforcement invasions of privacy yielding similar conclusions through the examination of a somewhat different set of cases, see Bernard W. Bell, Secrets and Lies: News Media and Law Enforcement Use of Deception as an Investigative Tool, 60 U. Pitt. L. Rev. 745 (1999) (reporting that privacy norms are underenforced in Fourth Amendment cases - though suggesting that political branches can exercise more control here - and arguing that privacy norms are more vigorously enforced in tort cases).
n104. See infra pp. 39-44.
n105. For an example of an attempt to create a nonnormative definition of privacy, see Ruth Gavison, Privacy and the Limits of the Law, in Philosophical Dimensions of Privacy (Ferdinand David Schoeman ed., 1984) (defining privacy as a complex of secrecy, anonymity, and solitude). Privacy has been construed in many different ways. See Alan F. Westin, Privacy and Freedom (1967) (construing privacy as information control); J. Braxton Craven, Jr., Personhood: The Right to Be Let Alone, 1976 Duke L.J. 699 (1976) (as personhood); Charles Fried, Privacy, 77 Yale L.J. 475 (1968) (as information control); Louis Henkin, Privacy and Autonomy, 74 Colum. L. Rev. 1410 (1974) (as autonomy); Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 737 (1989) (as freedom from government intrusion). For an argument that single-dimension theories of privacy insufficiently describe the case law, see Ken Gormley, One Hundred Years of Privacy, 1992 Wis. L. Rev. 1335, 1337-40 (1992).
n106. See Durkheim, supra note 39; Richard Sennett, The Fall of Public Man 91 (1977) ("Before the 19th Century, the realm close to the self was not thought to be a realm for the expression of unique or distinctive personality; the private and the individual were not yet wedded.").
n107. See Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 77 Cal. L. Rev. 957, 974 (1989) [hereinafter Post, Social Foundations]. Post points out:
There is now a fierce debate in law and political philosophy between, speaking roughly, liberals and communitarians. The former stress those aspects of the self which are independent and autonomous, the latter emphasize those aspects which are embedded in social norms and values. In the intrusion tort, however, this debate is miraculously transcended, for the tort presides over precisely those social norms which enable an autonomous self to emerge.
Id.; see also Robert C. Post, Constitutional Domains 51-88 (1995).
n108. See Post, Social Foundations, supra note 107, at 959-68; see also Ellen Alderman & Caroline Kennedy, The Right to Privacy 247 (1995) (reporting that the victim of a privacy violation felt "she won" despite the fact that the jury's verdict in her favor was overturned on appeal).
n109. See Bailer v. Erie Ins. Exch., 687 A.2d 1375 (Md. 1997) (tortfeasor took video of au pair in shower); Snakenberg v. Hartford Cas. Ins. Co., 383 S.E.2d 2 (S.C. Ct. App. 1989) (tortfeasor took video of guests changing into swimsuits). But see Prince v. St. Francis-St. George Hosp., 484 N.E.2d 265 (Ohio Ct. App. 1985). Prince may be distinguished because it involved a negligent publication of private information - a diagnosis of alcoholism was negligently sent to the wrong person - rather than an intrusion into seclusion. See id. at 266-67.
n110. Post, Social Foundations, supra note 107, at 959.
n111. See Alexander Kira, Privacy and the Bathroom, in Environmental Psychology: Man and His Physical Setting 273-74 (Harold M. Proshansky et al. eds., 1970) ("We must have privacy in certain instances in order that we do not violate cultural norms which specify that certain things be done in private."); see also Sennett, supra note 106, at 264 ("Masks permit pure sociability, detached from the circumstances of power, malaise, and private feeling of those who wear them. Civility has as its aim the shielding of others from being burdened with oneself."); Georg Simmel, The Sociology of Georg Simmel 329 (Kurt H. Wolff trans. & ed., 1950). Simmel explains:
The fertile depth of relations suspects and honors something even more ultimate behind every ultimateness revealed; it daily challenges us to reconquer even secure possessions. But this depth is only the reward for that tenderness and self-discipline which, even in the most intimate relation that comprises the total individual, respects his inner private property, and allows the right to question to be limited by the right to secrecy.
n112. Erving Goffman, Relations in Public: Microstudies of the Public Order 31 (1971); see also Simmel, supra note 111, at 316-28 (demands of appropriate distance depend on nature of the relationship - a level of intimacy proper for business associates would be too distant for lovers); Post, Social Foundations, supra note 107, at 969. Post argues:
Whatever the virtue of such neutral definitions of privacy, they are most certainly not at the foundation of the common law, which rests instead upon a concept of privacy that is inherently normative. The privacy protected by the common law tort cannot be reduced to objective facts like spatial distance or information or observability; it can only be understood by reference to norms of behavior. A defendant who stands very close to a plaintiff in a crowded elevator will not be perceived to have committed a highly offensive intrusion; but the case will be very different if the defendant stands the same distance away from a plaintiff in an open field.... The sphere of privacy protected by the tort can only be perceived through the exercise of what Simmel calls "moral tact."
Id. (citation omitted).
n113. Proper respect for personal space varies with culture as well - a difficulty for a tort that requires a single standard of evaluation (the reasonable person). One example of the problem of multiple communities is regional differences in greetings: in the east, the appropriate greeting between friends is a kiss on the cheek. In the midwest, it is a (often hearty) hug - or even a kiss on the lips. I have one friend who insists on a kiss on both cheeks. An attempt to do the wrong sort of greeting feels awkward or even invasive. Greetings also depend on context. While I might greet a professional friend with a kiss on a social occasion, I must content myself with a (perhaps two-handed) handshake when "on duty."
n114. See Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973).
n115. See Susan E. Bernstein, Note, Living Under Siege: Do Stalking Laws Protect Domestic Violence Victims?, 15 Cardozo L. Rev. 525 (1993) (enumerating and analyzing stalking laws).
n116. Compare Green v. Chicago Tribune Co., 675 N.E.2d 249 (Ill. App. Ct. 1996) (finding liability when newspaper disclosed mother's last words to her dying son at hospital), with Wilkins v. NBC, 84 Cal. Rptr. 2d 329 (Cal. Ct. App. 1999) (denying liability when broadcast disclosed content of business discussion at restaurant).
n117. PETA v. Bobby Berosini, Ltd., 895 P.2d 1269, 1281-82 (Nev. 1995) (citations omitted).
n118. See, e.g., Huskey v. NBC, 632 F. Supp. 1282, 1287-88 (N.D. Ill. 1986) (holding that inmate had claim against media to privacy while in exercise cage); Miller v. NBC, 232 Cal. Rptr. 668 (Cal. Ct. App. 1986) (finding that admission of paramedics into house does not mean no privacy claim against accompanying film crew); Stessman v. Am. Black Hawk Broad. Co., 416 N.W.2d 685, 687 (Iowa 1987) (holding plaintiff could have claim if in private dining room of a restaurant); De May v. Roberts, 9 N.W. 146 (Mich. 1881) (imposing liability for intrusion by non-physician assistant who was present without consent during plaintiff's wife's labor); Rivers v. Block, 7 Phila. Co. Rptr. 224 (Ct. Com. Pl. 1982) (allowing privacy claim for picture taken during labor, even though photograph later destroyed and doctor had right to be there). But see PETA, 895 P.2d at 1280 (denying invasion claim because backstage personnel could see defendant disciplining orangutans even though his actions could not be seen by audience).
n119. 632 F. Supp. 1282 (N.D. Ill. 1986).
n120. Id. at 1287-88.
n121. 277 U.S. 438 (1928).
n122. Id. at 464.
n123. The right to privacy was first articulated by Samuel Warren and Louis Brandeis in Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). The authors patched together common-law copyright and trespass cases at to find in them a privacy "right to be let alone." Id. Ken Gormley traces the history of the right's development, noting the key role played by Justice Brandeis, in his article One Hundred Years of Privacy. See Gormley, supra note 105.
n124. Olmstead, 277 U.S. at 478 (Brandeis, J., dissenting).
n125. Id. at 485.
n126. See Goldman v. United States, 316 U.S. 129 (1942).
n127. See Silverman v. United States, 365 U.S. 505 (1961).
n128. 389 U.S. 347 (1967).
n129. Id. at 361 (Harlan, J., concurring).
n130. United States v. White, 401 U.S. 745, 786 (1971) (Harlan, J., dissenting).
n131. 442 U.S. 735 (1979).
n132. Id. at 743-44.
n133. 486 U.S. 35 (1988).
n134. Id. at 40.
n135. Id. at 45 (Brennan, J., dissenting).
n136. 436 U.S. 499 (1978).
n137. 480 U.S. 709 (1987).
n138. See Camara v. Mun. Court, 387 U.S. 523 (1967); see also Stuntz, supra note 102, at 1064 (recognizing by implication that a dignity-based right to privacy would help explain the administrative search doctrine).
n139. Restatement (Second) of Torts 652B (1977).
n140. 232 Cal. Rptr. 668 (Cal. Ct. App. 1986).
n141. Id. at 682. Other state courts have treated invasions of privacy in similar fashion. In Wilkins v. NBC, 84 Cal. Rptr. 2d 329 (Cal. Ct. App. 1999), the court granted summary judgment in favor of NBC, which had used hidden cameras at a business meeting as part of an expose about how adult entertainment businesses were charging for services on "800" numbers. The use of names and video of executives was not an invasion of privacy because the meeting was at a public restaurant, was about business, and "the broadcast material was not so "lurid and sensational in emotional tone, or so intensely personal in content, as to make its intrusiveness disproportionate to its relevance.'" Id. at 341 (citation omitted). In Shulman v. Group W Prods., 955 P.2d 469 (Cal. 1998), a news crew videotaped plaintiff's extraction from an auto wreck and subsequent medical treatment. The court concluded that there was a jury question whether a hidden microphone on plaintiff's nurse invaded plaintiff's privacy. The court stated:
We agree with the Miller court that all the circumstances of an intrusion, including the motives or justification of the intruder, are pertinent to the offensiveness element. Motivation or justification becomes particularly important when the intrusion is by a member of the print or broadcast press in the pursuit of news material.
Id. at 493. In Taylor v. K.T.V.B., Inc., 525 P.2d 984 (Idaho 1974), K.T.V.B. had photographed plaintiff's arrest and shown him in the nude. The court determined that the right to report an arrest does not give the media additional rights, stating:
[The media have no] right to exploit the details of such an arrest for the purpose of holding the arrestee up to public ridicule and humiliation. Neither should there be a privilege to make reports using obviously embarrassing private facts about the arrestee when no thought has been given to the consequences of such a detailed description of the arrest.
Id. at 987-88. The court concluded that such behavior constitutes "reckless disregard" under the malice standard of Gertz. Id. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); see also Green v. Chicago Tribune Co., 675 N.E.2d 249, 257 (Ill. Ct. App. 1996) (allowing claim for emotional distress when newspaper reported mother's words to her dying son without her consent, and photographed him as he lay dying - the newspaper's actions "suggest an alarming lack of sensitivity and civility").
n142. See, e.g., Vernars v. Young, 539 F.2d 966 (3d Cir. 1976) (holding that opening and reading mail is invasion of privacy); Hamberger v. Eastman, 206 A.2d 239 (N.H. 1964) (finding that landlord's installation of listening device in tenant's bedroom was a violation of privacy right even if not used); Miller v. Brooks, 472 S.E.2d 350 (N.C. Ct. App. 1996) (holding that installation of hidden videotape camera in bedroom by estranged wife was privacy violation); Geraci v. Conte, No. 72440, 1998 Ohio App. LEXIS 2727 (Ohio Ct. App. June 18, 1998) (calling the installation of one-way mirror for purpose of spying and invasion of plaintiff's privacy even absent allegation that defendant ever saw her).
n143. See PETA v. Bobby Berosini, Ltd., 895 P.2d 1269 (Nev. 1995).
n144. See Saldana v. Kelsey-Hayes Co., 443 N.W.2d 382, 384 (Mich. Ct. App. 1989). The Saldana court stated:
The defendants' duty to refrain from intrusion into another's private affairs is not absolute in nature, but rather is limited by those rights which arise from social conditions, including the business relationship of the parties. Defendants' surveillance of plaintiff at his home involved matters which defendant had a legitimate right to investigate.
Id. (citation omitted).
n145. See Parish Nat'l Bank v. C.E. Lane, 397 So.2d 1282 (La. 1981).
n146. See N.O.C., Inc. v. Schaefer, 484 A.2d 729 (N.J. Super. Ct. Law Div. 1984).
n147. See Plaxico v. Michael, 735 So.2d 1036 (Miss. 1999). The court stated:
Here, [defendant] became concerned about the welfare of his daughter, who was in the custody of his former wife.... His concern was based on numerous rumors of an illicit lesbian sexual relationship between Plaxico and his former wife.... It is of no consequence that the mother was having an affair with another woman. She could have been carrying on an illicit affair with a man in the home where the child was, and any father would feel that this too was inappropriate behavior to be carried on in the presence of the child.
...[Defendant] believed that he took these pictures for the sole purpose to protect his minor child. Although these actions were done without Plaxico's consent, this conduct is not highly offensive to the ordinary person which would cause the reasonable person to object. In fact, most reasonable people would feel [defendant's] actions were justified in order to protect the welfare of his minor child.
Id. at 1039-40.
n148. See infra Part V.A.
n149. Shulman v. Group W Prods., 955 P.2d 469, 493 (Cal. 1998). Note that this differs greatly from current First Amendment standards, in which intent is considered irrelevant. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).
n150. A sense of embarrassment may linger, however, even where there is no cause for indignation. I feel embarrassed when (hypothetically) a student whom I have exhorted to read great books and whom I have dragged through Kant and Hegel discovers me perusing the National Inquirer in the grocery store line. Or, I feel embarrassed when (hypothetically) one of my senior colleagues happens to attend a church auction at which I am singing Diamonds Are a Girl's Best Friend with a feather boa. But in neither of these cases is there any invasion or wrong to me; it's just that my attempts at a certain self-presentation have been foiled.
n151. Keeton et al., supra note 101, at 855 (citing Horstman v. Newman, 291 S.W.2d 567 (Ky. 1956)).
n152. 201 Cal. Rptr. 665 (Cal. Ct. App. 1984).
n153. 188 Cal. Rtpr. 762 (Cal. Ct. App. 1983).
n154. Id. at 766.
n155. Sipple, 201 Cal. Rptr. at 670 (alternate holding).
n156. Diaz, 188 Cal. Rptr. at 773.
n157. Goffman, supra note 112, at 56.
n158. See, e.g., Wyoming v. Houghton, 526 U.S. 295 (1999); Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 451-55 (1990); Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989); Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 619-21 (1989); Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam); United States v. Brignoni-Ponce, 422 U.S. 873 (1975); Terry v. Ohio, 392 U.S. 1 (1968); Camara v. Mun. Court, 387 U.S. 523 (1967); United States v. Brown, 64 F.3d 1083 (7th Cir. 1995); United States v. Chaidez, 919 F.2d 1193 (7th Cir. 1990); United States v. Albarado, 495 F.2d 799 (2d Cir. 1974); see also Gormley, supra note 105, at 1372 (noting that courts employ an overt balancing test more often in Fourth Amendment cases than in tort cases); Stuntz, supra note 102, at 1054 ("All of Fourth Amendment law is conventionally said to represent a balance between law enforcement needs and individual interests, and the balancing is done explicitly in particular cases.").
n159. See Keeton et al., supra note 101, at 41-42.
n160. 517 U.S. 806 (1996). One commentator has suggested that Whren should be limited by requiring courts to inquire into the importance of the substantive crime violated. See Sherry F. Colb, The Qualitative Dimension of Fourth Amendment "Reasonableness," 98 Colum. L. Rev. 1642 (1998).
n161. The defendants were black and claimed that the stop was based on their race. See Whren, 517 U.S. at 810.
n162. Id. at 808.
n163. Id. at 813. The Court suggested that the Equal Protection Clause provided the only cause of action. For an analysis of this suggestion, see Pamela S. Karlan, Race, Rights and Remedies in Criminal Adjudication, 96 Mich. L. Rev. 2001 (1998).
n164. See Whren, 517 U.S. at 816.
n165. Id. at 818 (citations omitted).
n166. Bennett v. Norban, 151 A.2d 476, 479 (Pa. 1959).
n168. 392 U.S. 1 (1968).
n169. Id. at 16-17.
n170. See Bennett, 151 A.2d at 478-79 (allowing claims for both defamation and invasion of privacy).
n171. See, e.g., State v. Ladson, 979 P.2d 833, 836 (Wash. 1999) (officers on "gang patrol" selectively pulled over vehicles for traffic violations based on their "potential for intelligence gathering"). The court in Ladson held that such pretextual traffic stops violated the state constitution: "Pretext is therefore a triumph of form over substance; a triumph of expediency at the expense of reason." Id. at 838; cf. State v. Pierce, 642 A.2d 947 (N.J. 1994) (rejecting bright-line car search rule in New York v. Belton, 453 U.S. 454 (1981) for similar reasons).
n172. Bennett, 151 A.2d at 479. Requiring some tact and civility of police officers is not incompatible with ensuring their safety. See Atwater v. City of Lago Vista, 165 F.3d 380 (5th Cir. 1999) (citing "verbal abuse" as part of what made police conduct unreasonable), vacated en banc, 171 F. 3d 258 (5th Cir. 1999), and reinstated in part on reh'g, 195 F.3d 242 (5th Cir. 1999), and cert. granted, 68 U.S.L.W. 3566 (U.S. June 26, 2000) (No. 99-1408); cf. C.S. Lewis, The Chronicles of Narnia: The Last Battle 152 ("No warrior scolds. Courteous words or else hard knocks are his only language."). Or, "talk softly, but carry a big stick."
n173. One exception to this generalization might be Wilson v. Arkansas, 514 U.S. 927 (1995). Wilson required officers to "knock and announce" their presence before forcing entry to execute a search warrant, unless there is reason to believe that such a procedure would endanger officers or evidence. Id. at 930. Even though there was no informational privacy at stake here, the Court acknowledged that defendants should have the chance to meet police at the door in a dignified manner. See id. at 932-33.
n174. See Stuntz, supra note 102, at 1023-24 (implying that the focus on informational privacy creates doctrinal anomalies, since information is protected in public encounters but property and liberty interests are not).
n175. 523 U.S. 65 (1998).
n176. Id. at 71.
n177. Several cases have allowed "arrest-like" force in "reasonable suspicion"-type Terry stops. See, e.g., United States v. Taylor, 162 F.3d 12 (1st Cir. 1998) (discussing twelve officers, two with guns drawn, who ordered vehicle's occupants to lie facedown on the ground, frisked them, and blocked their egress with police cruisers for about thirty minutes); United States v. Vega, 72 F.3d 507, 515 (7th Cir. 1995) (upholding Terry stop where officers drew their weapons and detained the suspect for over an hour); United States v. Tilmon, 19 F.3d 1221, 1223 (7th Cir. 1994) (examining a search where the suspect was made to lie face down on the shoulder of the road in handcuffs, put in squad car, and then searched); United States v. Clark, 24 F.3d 299, 301 (D.C. Cir. 1994) (discussing a search where defendant was forced out of car at gunpoint and made to kneel while officer searched car). But see Washington v. Lambert, 98 F.3d 1181 (9th Cir. 1996). Lambert was a civil rights case that held that "intrusive means" of effecting a Terry stop are only proper:
1) where the suspect is uncooperative or takes action at the scene that raises a reasonable possibility of danger or flight, 2) where the police have information that the suspect is currently armed, 3) where the stop closely follows a violent crime, and 4) where the police have information that a crime that may involve violence is about to occur.
Id. at 1189; Stuntz, supra note 102, at 1023 ("Seizures are far less heavily regulated than searches. A police officer can grab me, spin me around, force me to spread my arms and legs against the wall, and frisk me, all in public view, based on a "reasonable suspicion.'"). Instead, courts should be more concerned about "dignitary harm." Id. at 1043.
n178. See, e.g., Lambert, 98 F.3d at 1181 (racial profiling); Ayeni v. Mottola, 35 F.3d 680 (2d Cir. 1994), cert. denied, 514 U.S. 1062 (1995). Ayeni's holding that an officer who allowed the media to attend a search was a "clearly established" Fourth Amendment violation has been refuted by the Supreme Court. See Wilson v. Layne, 526 U.S. 603, 604 (1999). The Wilson Court held that the ruling (though right) was not clearly established. See id. One commentator, however, has suggested:
It was the officer's actions, aside from the presence of the camera crew, that made the search in Ayeni unreasonable. Agent Mottola's clearly unreasonable conduct - telling Mrs. Ayeni to "shut up," directing the camera crew to photograph her face, and throwing a magazine on the floor to prevent her from covering her son's face - violated Mrs. Ayeni's Fourth Amendment rights by making the search unreasonable.
Eve Klindera, Note, Qualified Immunity for Cops (and Other Public Officials) with Cameras: Let Common Law Remedies Ensure Press Responsibility, 67 Geo. Wash. L. Rev. 399, 428 (1999). The courts' greater willingness to find "invasions" in these cases (where innocent plaintiffs are perhaps more credible) must be tempered by the requirement that the officers violate clearly established law. See Alan K. Chen, The Ultimate Standard: Qualified Immunity in the Age of Constitutional Balancing Tests, 81 Iowa L. Rev. 261 (1995); Meyer, Reasonable Minds, supra note 85. For an interesting comparison of criminal and civil rights cases, compare United States v. Castro, 166 F.3d 728 (5th Cir. 1999) (en banc) (per curiam) (upholding a pretextual full custodial arrest and search for a seatbelt violation where drug task force had targeted Hispanic defendants for associating with known drug dealers, followed them for 115 miles and finally found 900 pounds of cocaine in their vehicle), with Atwater v. City of Lago Vista, 165 F.3d at 382, 387 (concluding that the law is "clearly established" that full arrest is improper for seatbelt violation in case involving "verbally abusive" arrest of doctor's wife for seatbelt violation).
n179. See Ohio v Robinette, 519 U.S. 33, 40 (1996) (Ginsburg, J., concurring) (noting that sheriff's deputy on drug interdiction patrol pulled over suspicious vehicles and asked for consent to search 786 times in a year); Castro, 166 F.3d at 728 (discussing facts where drug task force targeted and tailed vehicle for 115 miles before state trooper who had been radioed about the vehicle pulled it over for seatbelt violation); United States v. Roberson, 6 F.3d 1088 (5th Cir. 1993) (including facts where state trooper pulled over "suspicious" vehicle for violating a minor traffic law), cert. denied, 510 U.S. 1204 (1994); State v. Ladson, 979 P.2d 823 (Wash. 1999) (considering searches where gang patrol used traffic stops to pull over suspicious vehicles). Courts go even further and ignore the officers' testimony about his or her state of mind or knowledge at the time. See United States v. Mendenhall, 446 U.S. 544 (1980); see also Morgan Cloud, The Dirty Little Secret, 43 Emory L.J. 1311, 1333 (1994).
n180. See Elizabeth Phillips Marsh, On Rollercoasters, Submarines, and Judicial Shipwrecks: Acoustic Separation and the Good Faith Exception to the Fourth Amendment Exclusionary Rule, 1989 U. Ill. L. Rev. 941, 973-87 (arguing that subjective motivation of officer should be relevant and that, if it were, the sky would in fact not fall).
n181. See United States v. Robinson, 414 U.S. 218 (1973).
n182. See Pennsylvania v. Labron, 518 U.S. 938 (1996) (per curiam); Florida v. Meyers, 466 U.S. 380 (1984) (per curiam); Michigan v. Thomas, 458 U.S. 259 (1982) (per curiam).
n183. See United States v. Leon, 468 U.S. 897 (1984) (holding no suppression of evidence when search based on reasonable reliance on a facially valid search warrant).
n184. See Illinois v. Rodriguez, 497 U.S. 177 (1990).
n185. See R. Kent Greenawalt, The Right to Silence and Dignity, in The Constitution of Rights: Human Dignity and American Values, supra note 2, at 192, 206. Greenawalt states:
From the moral point of view, pressures and tricks designed to get suspects to confess are much more questionable than inferences from silence and dismissal. When law enforcement officers browbeat suspects, play on their weaknesses, deceive them as to critically relevant facts, such as whether a suspected confederate has confessed, or keep them in a hostile setting, the officials intentionally manipulate the environment to make rational, responsible choice more difficult. Such tactics hardly accord with respect for autonomy and dignity....
n186. The case law currently tolerates the use of deceit both in undercover operations and in eliciting confessions. See, e.g., United States v. Russell, 411 U.S. 423 (1973) (confirming the constitutionality of undercover operations, within the bounds of a subjective entrapment doctrine - focusing on the defendant's predisposition to commit the offense - and perhaps some outer limit set by due process); Frazier v. Cupp, 394 U.S. 731 (1969) (discussing facts where police falsely told suspect that co-suspect had confessed). Jacobson v. United States, 503 U.S. 540 (1992) eased the burden of showing lack of predisposition by allowing that government conduct might itself create a predisposition to commit a crime, but it seems not to have had much effect on the widespread use of undercover operations. Indeed, lying to the suspect is a common interrogation technique. See Fred E. Inbau et al., Criminal Interrogation and Confessions (3d ed. 1986); Welsh S. White, Police Trickery in Inducing Confessions, 127 U. Pa. L. Rev. 581 (1979).
n187. Several courts of appeals have held that the "due process" limit suggested in Russell does not exist separately from the entrapment defense. See United States v. Boyd, 55 F.3d 239 (7th Cir. 1995); United States v. Tucker, 28 F.3d 1420 (6th Cir. 1994). The Court of Appeals for the District of Columbia has limited such a defense to conduct involving "coercion, violence, or brutality to the person." United States v. Gaviria, 116 F.3d 1498, 1533 (D.C. Cir. 1997) (citing United States v. Walls, 70 F.3d 1323, 1330 (D.C. Cir. 1995)).
n188. See Meyer, Reasonable Minds, supra note 85.
n189. See id. at 1521 ("The taken-for-granted norms of the community...are actually more accessible and provide better "notice' to police officers than an obscure judicial opinion.").
n190. See Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 Mich. L. Rev. 1 (1998).
n191. For a more detailed discussion, see Linda Ross Meyer, Are Constitutional Rights Personal?, 6 Legal Theory 405 (2000) [hereinafter Meyer, Constitutional Rights].
n192. See Larry Alexander, Rules, Rights, Options and Time, 6 Legal Theory 391 (2000).
n193. It is wrong to think that "intent" is always "subjective," "internal," or "secret." Indeed, run-of-the-mill tort and criminal law cases demonstrate that intent is often very patent indeed. One could also make the Wittgensteinian point that "intent" is a word with very public meaning and is used in almost every social interaction. Concerns about the indiscernibility of "legislative intent" share this confusion: we know very well, most of the time, what the "point" of a statute is (its "intent") either from the text or context without having to psychoanalyze the legislators, just as we know whether the dog was tripped over or kicked. Cf. Brian Bix, Questions in Legal Interpretation, in Law and Interpretation: Essays in Legal Philosophy 137-54 (Andrei Marmor ed., 1995) (discussing the varied interpretations of the term "legislative intent").
n194. For a taste of the debate over "facial" challenges, see Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235 (1994); Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 Am. U. L. Rev. 359 (1998). For my own take on this debate, see Meyer, Constitutional Rights, supra note 191.
n195. See, e.g., Robin K. Magee, The Myth of the Good Cop and the Inadequacy of Fourth Amendment Remedies for Black Men: Contrasting Presumptions of Innocence and Guilt, 23 Cap. U. L. Rev. 151, 163-65 (1994) (describing the Court's adoption of a utilitarian rationale for the exclusionary rule instead of a rights-based or judicial integrity rationale).
n196. Due process, equal protection, and the Fourth and Eighth Amendments are obvious examples; freedom of speech and religion, however, may be more like liberty-rights. See supra notes 20-24 and accompanying text.
n197. See supra notes 111-13 and accompanying text.
n198. See Post, Constitutional Domains, supra note 107, at 64-67.
n199. As long as it is not suppressed. For this reason, some First Amendment law looks more like "negative liberty" than practices of respect - providing a Mardi Gras space free from norms of civility. Do we have some limited right to be offensive in public? Yet, offensive speech can itself silence and repress diversity of thought, as advocates for regulation of hate speech make clear. Public discourse itself relies to a great extent on norms of reasoned debate and civility. The extent to which the negative freedom of free speech bites its own tail, yet seems necessary to preserve public imagination, is a conundrum too deep to be explored here. See supra note 2.
n200. Brown v. Bd. of Educ., 349 U.S. 294, 301 (1955).
Prepared: February 2, 2001 - 5:02:29 PM
Edited and Updated, February 3, 2001
WHAT IS A HUMAN RIGHT?
by Jeremy Waldron
by Catherine Powell
by Tracy Higgens