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India’s Supreme Court Discovers Right to Privacy

Recently, I have been studying comparative constitutional law.  It is a fascinating area, providing real world examples for the issues that constitutional theory explores.  What is more, the practices of other constitutional judiciaries are often unexpected.  I often find myself saying, “do they really do that?”

One example is the recent constitutional case, decided by the Supreme Court of India, finding that the Indian Constitution provides a nontextual right to privacy.  The Supreme Court of India is one of the most aggressive high courts in the world.  Perhaps its most aggressive action has been a series of cases where the court held that the basic structure of the Indian Constitution could not be amended, even though the constitution did not textually provide for that and in fact seemed to suggest otherwise.

The recent case finding a privacy right, Justice K S Puttaswamy V. Union Of India, is remarkable in many ways.  The opinion is over 500 pages long!  And it engages in a discussion of various issues one would not expect.

To begin with the decision addresses originalism.  It has a section entitled “Constituent Assembly and Privacy: Limits of Originalist Interpretation,” that purports to address the originalist objections.

In another section, the court explored philosophical and legal theory aspects of privacy.  Thus, it discusses the views in separate subsections of Judith Jarvis Thompson, Richard Posner, Robert Bork, and Catherine MacKinnon.  It is interesting that while the U.S. Supreme Court largely ignores foreign court decisions and foreign legal scholars, the Indian Supreme Court devotes so much space to these matters.

A Supreme Court decision in the United States would not do this.  One does not see long discussions of why originalism does not apply in the U.S.  And one certainly does not see significant discussions of the views of legal theorists.

The decision also appeared to overrule two prior decisions that refused to recognize a privacy right.  (Here, of course, the Indian Supreme Court does not represent a radical break with the practice of the U.S. Supreme Court.)

As is characteristic of the decisions of the aggressive high courts throughout the world, the announced right is not absolute or even determinate.  The privacy right “will have some reasonable restrictions in matters of national security and mutual interest of the citizens and the state.”  While this limitation might seem to lessen the effect of the court’s decision, it nonetheless allows the court more power to determine the content of the right, at its discretion.

Decisions like these are sobering.  It is almost enough to make one appreciate Justices Kennedy or Sotomayor.

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on November 09, 2017 at 10:08:07 am

Progressive legal rhetoric (e.g., "discovering," "finding," instead of the accurate "inventing," "concocting," "imposing") --is nearly universal among American scholars, including even those whose work is focused on counteracting the illegitimate behavior this rhetoric covers.

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Kevin Gutzman
on November 09, 2017 at 10:57:44 am

Regarding God’s Truth and The Law of Noncontradiction:
Even in a plauralistic society, our call to Holiness, has always been a call to be chaste in our thoughts, in our words, and in our deeds, and always witness to The One Word of God in season and out of season. One cannot compromise God’s Truth without ending with error.
The idea that one can personally recognize the Sanctity of human life from the moment of conception and the Sanctity of the marital act and thus marriage and the family, while denying the Sanctity of human life from the moment of conception and the Sanctity of the marital act and thus marriage and the family in public, is a grave error that denies The Unity of The Holy Ghost, and thus denies The Ordered Communion of Perfect Complementary Love, The Most Holy And Undivided Blessed Trinity.
The idea that “reality is whatever we want it to be”, and thus we can decide what is Good, is what set Salvation History in motion.

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Nancy D
on November 09, 2017 at 11:30:04 am

" It is interesting that while the U.S. Supreme Court largely ignores foreign court decisions and foreign legal scholars, ..."

And thank goodness, it does ignore them; although we do have the "Sleeping Justice", who during her nap-time, surely contemplates incorporating the fantasies of her worldwide brethren into COTUS!

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gabe
on November 09, 2017 at 12:59:00 pm

Since it is a self-evident Truth that does not depend on one's location, that our inherent, unalienable Rights can only be endowed to us from The True God, not Ceasar, John Locke, or King John, one can know through both Faith and reason, that private morality and public morality, which can never serve in opposition to one another, will always be, complementary.

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Nancy D.
on November 09, 2017 at 13:38:53 pm

To understand a foreign decision, you have to view it through the lens of its law. The unwritten British constitution is a "living" document, and lndia appears to have embraced the concept. ln the Preface, it is stated that "Constitution is a living document, an instrument which makes the government system work." They embraced Austinian realism, which they have every right to do. Viewed against the backdrop of Commonwealth law, the American legal system is a bit of an outlier.

Every Commonwealth constitution guarantees what Scalia has called "the rights of Englishmen," but they go about it in a variety of ways. Canada relies on a Charter of Rights and Freedoms similar to our own, but the common law right to privacy was recognized long before that. Britain's Bill of Rights is a sort of super-statute that can't be rescinded unless other Commonwealth nations consent. Australia doesn't even have a bill of rights but instead, relies upon the common law. Zimbabwe has a close analogue to our 9th Am: "This Chapter does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution." All (there may be a stray exception) Commonwealth nations are also signatory to the Vienna Convention on Treaties, and said treaties are actually enforceable.

Every other Commonwealth country has recognized this right to privacy--which is not absolute, and may be invaded in accordance with statute. Even Fiji. As such, it is not surprising that lndia would follow suit. The only difference is how they get there.

Why are we an outlier? First, COTUS was a treaty between sovereigns, and contract law principles apply. Second, our Framers designed it to be amenable to originalist analysis. Third, it was crafted at an time where Britain's BoR was a mere statute, and they wanted those rights to be protected in perpetuity. Fourth, it preceded John Austin by almost a century. And finally, they feared the depredations of corrupt judges.

ln reading the decision, one is struck by the recognition that their concept of originalism is not ours. They see it in the stilted, Borkian sense that we had the good sense to reject. l wouldn't read as much into it as Prof. Rappaport did.

What l found most intriguing was the reference to the Bhagavad Gita--a cultural marker explaining why they are more amenable to a LC:

"The meaning of this profound statement, when viewed after a thousand generations is this: That each age and each generation brings with it the challenges and tribulations of the times. But that Supreme spirit of Justice manifests itself in different eras, in different continents and in different social situations, as different values to ensure that there always exists the protection and preservation of certain eternally cherished rights and ideals. It is a reflection of this divine Brooding spirit of the law, the collective conscience, the intelligence of a future day that has found mention in the ideals enshrined in inter- alia, Article 14 and 21, which together serve as the heart stones of the Constitution."

lf a country wants a "living constitution," it can have one. And lndia wants one. What we do with our 9th and Zimbabwe does with its analogue, lndia can't do literally ... but under a LC, it can. This appears to be part of the design, which is just something you have to accept.

The reason that we don't often see foreign decisions invoked in our courts is about 80% RW arrogance, and 20% in the recognition that the case law doesn't translate that well. By way of example, what American courts call “certiorari” is a word denoting a discretionary appellate review. At common law, certiorari is a supervisory writ, apprising a superior court of “jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and ‘error of law on the face of the record.’” Craig v South Australia (1995) 184 CLR 163, 175 (H.C. Austl.) (citations omitted). Our Supreme Court has abandoned all pretense of supervising lower courts, which shocks the hell out of lawyers from the common law tradition.

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Trevor Chase
on November 09, 2017 at 14:01:03 pm

What you disdainfully call "progressive legal rhetoric" is often an integral part of the traditional common law analysis: While there was more than a hint of deism in the process, CL judges "discovered" the law, as opposed to "inventing" it. As for "unenumerated rights," the 9Am demands more than an occasional need to discover them.

A paradigmatic illustration of an unenumerated right involved young William Penn, the Quaker who established the colony of Pennsylvania. He was arrested for holding a religious observance outside of his meeting hall, after he and his congregation had been barred entry by the Crown. He had what might seem to us today to be a peculiar quirk: He refused—as a matter of religious belief—to remove his hat in deference to authority. Thus, he refused to wear his own hat to the ensuing trial, so that he wouldn’t be placed in the position of having to not remove it when the judge entered the courtroom. Angered, the judge had the bailiff place a hat on Penn’s head, which he refused to remove; he was then fined forty marks, ostensibly for insulting the dignity of the Court. Penn’s trial was so infamous that it was common currency to every member of the First Congress, and even the suggestion that a Bill of Rights would not have protected his progeny surely would have been anathema to those who enacted it. See, 1 Annals at 759-61.

In a land where “all men are created equal,” The Declaration of Independence, para. 2 (U.S. 1776), the right not to genuflect to a superior authority is necessarily implicit, irrespective of whether that refusal was borne of religious conviction. As such, Penn’s was not a “religious” right protected by the First Amendment.

Where is that right in the text of COTUS? Does that right not exist? And if not, why not?

Some of our domestic LC rhetoric is giggle-worthy. Per Michael Dorf, "living-Constitutionalists believe that while the original understanding has some bearing on the Constitution's contemporary meaning, it is not the whole story. For living Constitutionalists, the act of ratification by people who are long dead, and whose numbers did not include any women or enslaved African-Americans, does not suffice to make the Constitution effective today." But to condemn all who use those terms seems imprudent.

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Trevor Chase
on November 09, 2017 at 14:34:07 pm

How is that missive relevant to the topic, Nancy?

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Trevor Chase
on November 09, 2017 at 14:55:14 pm

lt shouldn't. Foreign law can provide a meaningful reality check. Allow me to illustrate:

Judicial immunity is a medieval common-law doctrine, created by judges for the benefit of judges, predicated on a sophistry even Lewis Carroll would find impenetrable. It traces its origin to the infamous “Star Chamber” of the Tudors: In Floyd and Barker, 77 Eng.Rep. 1305 (1607), Coke and his colleagues of the Star Chamber declared the judges of the King's Bench immune from prosecution in competing courts for even malicious and wrongful judicial acts. Distilled to essentials, Coke’s rationale was that the King can do no wrong:

"[A]nd it was agreed, that insomuch as the Judges of the realm have the administration of justice, under the King, to all his subjects, they ought not to be drawn into question for any supposed corruption, which extends to the annihilating of a record, or of any judicial proceedings before them, or tending to the slander of the justice of the King, which will trench to the scandal of the King himself, except it be before the King himself; for they are only to make an account to God and the King, and not to answer to any suggestion in the Star-Chamber."

Pulliam v. Allen, 466 U.S. 522, 530-31 (1984) (internal citations omitted).

While that logic might resonate in dictatorships such as those in North Korea, Saudi Arabia, and the former Soviet Union, it is anachronistic in a democracy, where the government governs only by the consent of the people. Professor Abimbola Olowofoyeku of London’s Brunel University distills the problem to essentials:

You have been injured by the misconduct of a judge. We have to deny you redress. This is necessary because we have to protect your interests by protecting the judges, so that they in turn can protect your interests without fear of apprehension.

Abimbola A. Olowofoyeku, Suing Judges: A Study of Judicial Immunity at 197.

No rational man would ever willingly strike such a bargain, and the very notion of the rule of law necessarily precludes it. As Canada enacted its own bill of rights (Charter of Rights and Freedoms), the Supreme Court of Canada addressed the doctrine of immunity, finding it irreconcilable with the very concept of rights under law:

An absolute immunity has the effect of negating a private right of action and in some cases may bar a remedy under the Canadian Charter of Rights and Freedoms. As such, the existence of absolute immunity is a threat to the individual rights of citizens who have been wrongly and maliciously prosecuted. While the policy considerations in favour of absolute immunity have some merit, these considerations must give way to the right of a private citizen to seek a remedy when the prosecutor acts maliciously in fraud of his duties with the result that he causes damage to the victim.

Nelles v. Ontario, 2 S.C.R. 170 (1989).

In Nelles, Canada’s Supreme Court is stating the obvious: If the government, by and through its agents, deprives any citizen of rights as guaranteed under its charter, the law must provide that citizen with an effective remedy. As such, whether the irresistible tide of the common law world has overwhelmed it, see e.g., Simpson v Attorney-General (Baigent's case), 3 NZLR 667 (1994); Maharaj v Attorney-General of Trinidad & Tobago (No. 2), AC 385 (1979), our nation is bound by an international agreement to abolish it, International Covenant on Civil and Political Rights, art. 2, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) (ratified by the United States Sept. 8, 1992), or it has attained jus cogens status, id. (the Covenant has been ratified by every country in the civilized world), this odious “the King can do no wrong” doctrine is unsupported in logic or law. See also, e.g., Erwin Chemerinsky, Against Sovereign lmmunity, 53 Stan. L. Rev. 1201 (2001).

Applied together, sovereign and official immunity disembowels our Bill of Rights. And if we had to compare our law to that of the rest of the world, our courts would be embarrassed into abandoning it.

For the most part, like Scalia, l stick to very old English law. But there are times--especially, when it comes to what our obligations are wrt treaties--where foreign law can be highly persuasive. (lt is never binding, of course.)

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Trevor Chase
on November 09, 2017 at 14:59:13 pm

Speaking of the Law of N/C, after the purported Crucifixion and alleged Resurrection, did the disciples remain in the environs of Jerusalem and establish a commune, or go back to their day jobs in Galilee?

As both tales can't be true, the Bible lies.

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Trevor Chase
on November 09, 2017 at 16:02:56 pm

Ok, good points re: immunity.

Still one could argue that we do not need to rely upon foreign sources for remedy; only that we need to provide due process to all who have been wronged by "official action."

As far as i understand it, in the early years of the republic, government officials enjoyed no such immunity, and officials from port inspectors to Postal officials were liable for damages, etc. Perhaps, we are observing a judicially "discovered" right to immunity for government officials. If so, I would suggest that rather than looking to foreign courts, we look to our own COTUS, and as you say, that "stinkin' inkblot (as some would have it) of the 9th Amendment, plus a few others.

As for discovering the law at Common Law, agreed! The link to Leoni's essay that i provided the other day is quite explicit about. In a sense "discovery" may be what CL is about.
Question:
At the level of COTUS are we also discovering, or are we presently "making" Law when we engage in a similar practice. Think again of legitimacy - if we "discover" or "divine" heretofore unknown rights / obligations neither consistent with the text, or to be found within the reasonably apprehended *frame* of COTUS - what are we doing. The resort to foreign courts / cites presupposes that the same level of legitimacy is to be afforded their constitutional structure / derivation / creation as we rightly (?) afford to COTUS, even though their document was crafted to handle an entirely different set of circumstances and their conception of both natural right and natural law may be markedly different from our own.

Something to consider, at a minimum!

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gabe
on November 09, 2017 at 17:40:30 pm

"which shocks the hell out of lawyers from the common law tradition."

'Splain yourself on this one! Or is this in line with Posner's critique of judges who simply do not wish to be annoyed by some hoi polloi's complaint?

As to "80% RW arrogance, why is it arrogant to seek to confine American jurisprudence to strictly American Law / COTUS, as foreign court decisions may be predicated upon different assumptions?

And how do you sustain a sense of legitimacy if you rely upon the rationale of a foreign state and it's jurists.

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gabe
on November 09, 2017 at 19:58:15 pm

gabe: "And how do you sustain a sense of legitimacy if you rely upon the rationale of a foreign state and it’s jurists."

As both Hamilton and Jefferson have opined, a court's legitimacy comes from reasoned arguments, which is why we expect judges to issue coherent written opinions--a proposition proven by its absence. As one state supreme court put it,

[a]n unreasoned decision has very little claim to acceptance by the defeated party, and is difficult or impossible to accept as an act reflecting systematic application of legal principles. Moreover, the necessity of stating reasons not infrequently changes the results by forcing the judges to come to grips with nettlesome facts or issues which their normal instincts would otherwise cause them to avoid.

Wisconsin v. Allen, No. 2010-WI-10 (Wis. 2010), slip op. at ¶ 79 (internal quotation omitted).

lf the reasoning is sound, we shouldn't care where it comes from. All things considered, American precedent is preferable, and we should always cite foreign precedent with due care, but the notion that no one in the world has anything to say worth hearing is the height of hubris.

gabe: "‘Splain yourself on this one!"

This observation comes from personal conversations with lawyers in far-flung jurisdictions like Australia, but the principle is easy to explain. At common law, certiorari is a writ of error, demanding supervision: “The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion.” Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 (India). Justice James Wilson--the literal author of Article lll--explains why it this superintendence is essential:

In every judicial department, well arranged and well organized, there should be a regular, progressive, gradation of jurisdiction; and one supreme tribunal should superintend and govern all the others.

An arrangement in this manner is proper for two reasons. 1. The supreme tribunal produces and preserves a uniformity of decision through the whole judicial system. 2. It confines and supports every inferior court within the limits of its just jurisdiction.

If no superintending tribunal of this nature were established, different courts might adopt different and even contradictory rules of decision; and the distractions, springing from these different and contradictory rules, would be without remedy and without end. Opposite determinations of the same question, in different courts, would be equally final and irreversible. "

2 Works of James Wilson 149-50 (James D. Andrews ed., 1896) (EA).

lt is the assurance of consistency that makes equal justice under law possible. The Constitution can’t have a hole in it over Nebraska.

Parents know that children will accept quite readily all sorts of arbitrary substantive dispositions—no television in the afternoon, or no television in the evening, or even no television at all. But try to let one brother or sister watch television when the others do not, and you will feel the fury of the fundamental sense of justice unleashed. The Equal Protection Clause epitomizes justice more than any other provision of the Constitution. And the trouble with the discretion-conferring approach to judicial law making is that it does not satisfy this sense of justice very well. When a case is accorded a different disposition from an earlier one, it is important, if the system of justice is to be respected, not only that the later case be different, but that it be seen to be so."

—Justice Antonin Scalia

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Trevor Chase
on November 09, 2017 at 20:13:41 pm

gabe: "If so, I would suggest that rather than looking to foreign courts, we look to our own COTUS, and as you say, that “stinkin’ inkblot (as some would have it) of the 9th Amendment, plus a few others."

The 9Am doesn't control. SCOTUS has already stated that to "take away all remedy for the enforcement of a right is to take away the right itself," Poindexter v. Greenhow, 114 U.S. 270, 303 (1884), and if both the judges and the government they serve are immune from liability in tort, you don't have anyone left to sue. But that argument falls on deaf ears in American courts, as they have become our black-robed rulers, and don't want to cede one iota of their power.

lmmunity is a florid example of RW judges making law. Scalia should have had his entire family fed to live rats as punishment for his role in Alden, as he knew better.

gabe: "The resort to foreign courts / cites presupposes that the same level of legitimacy is to be afforded their constitutional structure"

You misunderstand the scope of the use of foreign source material. The opinions are only persuasive, and only if they really ARE persuasive. l would put more reliance on a British or Australian precedent than l would one from lndia, for reasons stated above. But if you want to know the common law definition of "certiorari," you're better off going to foreign jurisdictions where they still use the common law.

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Trevor Chase
on November 10, 2017 at 00:22:21 am

Rules that protect privacy cannot be essential to protecting human Dignity if they fail to affirm that private morality and public morality, which can never serve in opposition to one another, will always be complementary.
Our inherent Dignity Has Been Endowed to us from The True God, from the moment of our conception, when we were created and brought into being, in The Image and Likeness of God, equal in Dignity, while being complementary as a beloved son or daughter, Willed by God, worthy of Redemption.

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Nancy
on November 10, 2017 at 11:15:13 am

Dawg:

Forgive me - I was just poking fun at ya! by using an argument of Barnett's on *legitimacy* of COTUS predicated upon changes made (or NOT to be made) to a written constitution and how, and who makes those changes.

I agree that looking to OLD English law, common law, etc is of value as it is similar in derivation, sentiment and tradition as is COTUS and American CL.

Interesting aside, here:
It may be argued that those former English *colomies* that retained much of English jurisprudence / governmental structures/regimes have prospered far better than those that discarded the influence of English Law and tradition.

Seeya =- the kiddies are probably tearing up the house right now!

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gabe

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