Transforming the Right to Privacy

In its last term, the U.S. Supreme Court decided two cases that implicated, in some way, privacy claims. One of these cases, Rodriguez v. United States, involved a claim that using a drug-sniffing dog at a traffic stop was unconstitutional. The other and far better known case involved the claim that the U.S. Constitution requires the states to issue marriage licenses to same-sex couples. The obvious question is how these utterly disparate cases could both be subsumed under the same legal slogan: a right to privacy. Rodriguez v. United States is the easier to explain. If there is a right to privacy in the U.S. Constitution, the most likely textual source for that right would be the Fourth Amendment. The roots of the amendment go deep in English law to a principle enunciated by Sir Edward Coke in a 1604 case and famously paraphrased by William Blackstone in his influential lectures: “For every man’s house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence.”[1] The Fourth Amendment codifies this general principle in a context of particular interest to Americans after the colonial period, in which they had been subject to wide-ranging searches for contraband. As John Dickinson complained in his 1767 Letters from a Farmer in Pennsylvania, Parliament had empowered customs officers “to enter into any HOUSE, warehouse, shop, cellar, or other place, in the British colonies or plantations in America, to search for or seize prohibited or unaccustomed goods,” meaning goods on which no customs had been paid.[2] The amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[3] It supports a general
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