Private: Judge Roberts, Which Right To Privacy Are You Talking About?

by Ian Millhiser, Guest Blogger
The media has been a buzz with Judge John Roberts' apparent endorsement of a "right to privacy" under the Constitution. Such an endorsement appears to allay the fears of progressives and fill conservative hearts with dismay. A deeper look at Roberts' words, however, suggest that the opposite is true.
The Constitution protects many rights which can be described as "rights to privacy," many of which are specifically enumerated in the Constitution. The Fourth Amendment, for example, protects the right to be free from unreasonable searches and seizures. Likewise the Third Amendment ensures the right to be free from having soldiers show up at your doorstep and demand room and board. Because these rights are specifically enumerated, they are uncontroversial, and are accepted by all eight justices (with some disagreement on the margins as to their scope).
The controversial question is whether or not the Constitution also protects unenumerated privacy rights, such as the rights to contraception, abortion and sexual privacy. These rights have been interpreted as being implicit in the word "liberty" in the Due Process Clause. So existing Constitutional doctrine encompasses both enumerated privacy rights, which are uncontroversial, and unenumerated privacy rights which are very controversial.
Now take a look at this exchange between Senator Specter & Judge Roberts:

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

Notice what Judge Roberts does here. He personally endorses the uncontroversial, enumerated rights to privacy, but does not endorse the unenumerated privacy rights. Instead, Judge Roberts refers to the Roe & Lawrence kind of privacy rights as something which "the court" has recognized. Whether he agrees with the Court's actions is left unsaid.
Later on, Senator Biden calls him on this equivocation, and the following exchange takes place:

BIDEN: Now, you have already said to the chairman that you agree that there's a right to privacy. And you said the Supreme Court found such a right in part in the Fourteenth amendment. My question is: Do you agree that -- not what said law is -- what do you think? Do you agree that there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment?
ROBERTS: I do, Senator. I think that the court's expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another. Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy. And it's not protected only in procedural terms but it is protected substantively as well. Again, I think every member of the court subscribes to that proposition.

If they agree with Bowling against Sharpe, as I'm sure all of them do, they are subscribing to that proposition to some extent or another.
On the surface, Judge Roberts appears to endorse the unenumerated "right to privacy" captured by Roe. Roberts, after all, in speaking about substantive rights under the Due Process Clause, but there is a bait and switch going on here.
Where Roberts tips his hand is by citing Bolling v. Sharpe. Bolling was a companion case to Brown v. Board of Education where the Supreme Court held that school segregation violated the Constitution, even when it occurred in the District of Columbia.
The reason why D.C. school segregation was potentially different than segregation in the several states is because of the text of the Fifth and Fourteenth Amendment. The Fourteenth Amendment forbids any State from denying the equal protection of the laws, while the Fifth Amendment, which applies to the federal government, does not contain any express Equal Protection Clause.
In Bolling, the Court held that even though the Fifth Amendment did not contain an express Equal Protection Clause, the Fifth Amendment's Due Process Clause should be read to apply the Equal Protection Clause to the federal government. In other words, Bolling stands for the proposition that "Due Process" can cause a Clause which expressly applies to only one area of government to also be imposed upon another area. Thus in Bolling, a clause which expressly applied to only the states also applies to the federal government through the Fifth Amendment's Due Process Clause.
This process of "incorporation" through Due Process works in both directions. While the first eight amendments expressly apply only to the federal government, the Fourteenth Amendment's Due Process Clause has been interpreted to also apply most of their protections to the states. Although there remains some debate on the margins, the idea of Due Process incorporation is largely uncontroversial, and is accepted by all current members of the Court.
Now let's go back to Roberts' exchange with Biden. Here's what Roberts said:
1) The Fourteenth Amendment's Due Process Clause contains a substantive element.2) That element applies certain privacy rights to the states.3) The notion that the Fourteenth Amendment applies privacy rights to the states is uncontroversial.
As explained above, there are some rights, such as the right to be free from unreasonable searches and seizures, which are both uncontroversial, and can be described as "privacy" rights. Furthermore, one manner in which the Fourteenth Amendment grants substantive rights is by "incorporating" the protections of the Bill of Rights upon the states-including the uncontroversial privacy rights contained in the 1st, 3rd and 4th Amendments.
When Judge Roberts tells Senator Biden that a right to "privacy" is protected by Substantive Due Process, he is merely stating the uncontroversial point that the privacy rights contained in the Bill of Rights also apply to the states. Nothing he has said suggests that he believes Roe or Lawrence is good law.