Page 68 - Privacy in a Cyber Age Policy and Practice

EIGHT NAILS INTO KATZ’S COFFIN 53

Much more important is the question of whether the courts should be
guided by consensus even when it can be accurately determined. True,
consensus has a prudential value. The courts should not stray too far from
public consensus, lest they lose their legitimacy or stray into a bitter culture
war of the kind that occurred around reproductive rights (i.e., decisional
privacy). However, consensus has no standing from a normative viewpoint
when rights are at stake. Thus, if an overwhelming majority of Americans
agrees that women are second-class citizens or that “fishing expeditions” by
the police are fully acceptable because “those who did nothing wrong have
nothing to hide,” this does not mean that a court should accept this consen-
sus and allow it to trump the court’s judgment as to what the Constitution
entails and what is just and right. In short, from a normative viewpoint, the
expectation of the public as to what and who may or may not be searched
should matter little.
Because this point is crucial, an elaboration follows. Katz runs rough-
shod over the elementary but essential fact that the political system of the
United States is not a simple democracy but a liberal democracy. (Others
call it a republic; I would prefer the term constitutional democracy.) The
essence of this regime is that it combines two very distinct principles. The
first is majoritarianism: when we differ, we choose our course based on
which position garners more votes. The other is liberalism: the Constitu-
tion deliberately ensconces a set of rights, which makes them so difficult to
amend that one should usually take them as a given. To put it differently,
the majority can decide what it prefers as long as this preference does not
entail violating anybody’s rights to speak freely, to worship, to assemble, to
petition, and so on. The right to privacy is one of these rights. Therefore, if
the courts were to decide whether or not a particular situation is covered
by the right to privacy based on what the masses told a pollster or what
the judges somehow determine the societal view to be—the courts would
in effect turn a right, which is sacrosanct and etched in stone, into a mass-
driven, pliable, ephemeral, ever-changing concept.
Thus, Americans showed very little concern for privacy in the months
that followed the 2001 attacks on the American homeland and much more
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concern when no new major attacks took place over the next ten years.
They are sure to change their collective mind one more time if another
attack occurs. If one bases a constitutional right on such a foundation, one
might as well tie it to a weather vane. In short, if Katz is allowed to stand
and the courts continue to follow it, the result would be to reduce the right
of privacy at best to a mere matter of democratic majority rule.
I write “at best” because Katz is not more aligned with the democratic
half of the United States regime than it is with the liberal/constitutional
half. In deciding those public policy issues that are not covered by rights