Welcome to the Commonwealth Club of California. My name is Carol Fleming. I am your hostess for at least the beginning of the program tonight. I will have to leave but the question period will be handled by my colleague Conesia Pyroll up here. She prefers that if you have questions tonight that you use the cards that are on your chairs to write questions that are going to be asked of Dr. Bisno. So get your pencils out and your very good questions. How many of you have a cell phone tonight, can I see? And how many of you cell phone that is still on? Can you please put it on stun? Thank you. How many of you know what a polymath is? All right can I hear from you sir, what's a polymath? A lot of different topics and somebody who is very good, would you say. And excellent, yes, very good, excellent indeed at many things. And we have such a man tonight to talk to us, Dr. David Bisno. Do you know the word polymath David? Right well it's you. Its you, he is a polymath, he was also my teacher out of the film institute where I was privileged to take a class with him and has become a friend and now he has become a speaker for the Commonwealth Club and we are we thank you so much for coming up from below Carmel to speak with us tonight. The probably of the least importance we can say of Dr. Bisno that he served as an ophthalmologist for 25 years taking care 25? I said 25. He is all about eyes not ears. Twenty-five years as an ophthalmologist taking care of people's eyes. And that's sort of the dull part. Life got much more interesting when he retired from ophthalmology. Went back to school, you can see Dartmouth and Harvard and got a degree in history of science at the age 53. And what are you doing with your retirement she asked. Uh-huh, at that point he started to design courses for extended learning and life long learning institutes in New England, in San Francisco, Santa Barbara, La Hoya and in Melbourne, Australia and Cape Town, South Africa. And in 2003 David returned to Harvard this time to their law school to study constitutional law with Lawrence Tribe. For the past four years David has enjoyed explaining and making clear to audiences the competing interests, thorny and provocative as they are which lie at the heart of our bill of rights. And tonight Dr. David Bisno will help us unravel the history of America's Constitutional Right to Privacy. Won't you give him a good Commonwealth welcome? Thank you very much. Is this about right? It is. David before you begin though I just for those of you who perhaps aren't familiar with our format here at the Club, after you have written your question on a card, if you just kind of hold it up a little bit, somebody from the back will come and collect them and bring them up to me, and then in the Q&A portion of the program I will present the questions to David. Thank you. Do most of you have a copy of the Bill of Rights which we left on your chair? Yes. Okay, because I'd really like you to have that in your hand, it would help us. And then I would like to pose the question of whether we believe, you and I, whether we believe that we have a right to privacy from government intrusion in intimate affairs of our life. The question really is do we have a right to that privacy which most of us cherish against government intrusion? Now if I were to have handed out to you the full American constitution, as it was passed in 1789, and then I have passed out to you the Bill of Rights, which was passed two years later. You would find no where in the constitution or in this Bill of Rights the word privacy. It isn't there. Let's admit that at the very beginning. But now what I want to do is urge you to first turn the page over where I have the Declaration of Independence. And I - in large print, I have enlarged the word Liberty. So the Declaration of Independence which came first before the constitution reads that we hold these truth to be self evident so forth, so forth. But among these inalienable rights are life, liberty and pursuit of happiness. And then if you turned it back to the Fifth Amendment, you will see that once again the word Liberty appears. No no one should be compelled in any criminal case to be a witness against nor be deprived of life, liberty or property without due process of law. You can be deprived of liberty, but only with due process of law and that was the situation, the bar against our federal government in 1789. Of depriving anyone from whatever liberty meant, the federal government. It took a civil war and the death of hundreds and thousands of American boys from the north and the south, to finally bring the government around to be enabled to write the 14th amendment. So if you will turn it over now to the 14th Amendment, you will see in the last clause of the 14th Amendment. Nor shall any state - deprive any person of life, liberty or property without due process of law. So now we have a ban, against the federal government and every state and local government including the city of San Francisco from taking away your liberty. But now what does liberty mean? That's a very broad term and if I were to hand out three by five cards and ask all of you to write down what you think liberty means, we would have about 50 different answers. What does liberty mean? And so that is what I want to talk about initially, the meaning of liberty. Well what did liberty mean back in England? Or what it meant back in England before the founders of our country got together and wrote down this constitution and used that word liberty, is simply it meant freedom from bodily restraint or imprisoned by a government. That is to say the writ of habeas corpus someone could the government couldn't just walk in to your house and throw you into jail. Much has has been done with the enemy combatants, in the past few years. That kind of thing was abhorred from what had happened in England and our framers were very careful to write down the word Liberty. And that is what the word Liberty meant in England. But it came to mean something much more than that. But perhaps you are not aware of what it did mean for more than a 150 years in our country. The word Liberty can be read to to mean the liberty to do something, you have a certain liberty to and you also can be thought of as liberty from liberty from an infringement by the government, Liberty from a police officer in San Francisco barging in here and saying to you, I want to look at everybody's wallet. Empty your pockets. Just a minute, I have some liberty from your doing that. And I also have liberty to do certain things. They are two very different meanings and we will keep those in mind. But what the word Liberty meant for more than a 150 years was the Liberty to form a contract. Property was sacrosanct and in order to develop property one needed to form a contract. So therefore if I were to walk up to Alan, I say Alan, and I say I need you I would like you to work 12 hours a day in my factory, I know you have six starving children at home and I will pay you $0.75 an hour. Are you willing to do that? You are not all right, now I think you could go home. Now Sir what's your name? Tom Tom, I will pay you $0.80 an hour, $0.80 an hour that will help you feed your five kids, are you willing to do that? Other wise you don't have any. No. What's your first name? Tom Tom what you do with my $0.80 is up to you. I am going to give you $0.80 and you should and you are free to work for me, you want to do it? All right, now Tom and I have formed a contract. I offered him employment, he was under no duress, other than the fact that he want to go to work. And he was willing to work for $0.80 an hour to help feed his children. He and I made a contract and we were not told by anyone that we couldn't do that because we were two willing people. And the government had nothing to say about it. It was a private matter between you and me. The right to liberty was interpreted to mean Liberty to form a contract. And that is how it stood and that was the value that was held sacrosanct by our government. The word Liberty was meant to protect the right to contract against interference by a government. Now as things would have it, a young man by the name of Louis Brandeis who had graduated at Harvard Law School with the highest honors ever obtained at that school then or now, graduated at age 21, went into practice in downtown Boston and around 1888-89-90 was the development in the United States of a little gimmick in a black box called the camera. And that invention could take pictures and those pictures could be taken anywhere and the picture could then be taken down to the local newspaper and published. And this was actually pretty horrifying. This was the first time that that kind of situation had come up. Louis Brandeis who was at that time in practice in downtown Boston, he and his partner Charles Warren started thinking about this. And they were putting all their minds together and thinking that might there not be a right to privacy? Privacy had never been considered in the constitution, never been written down with that word. But it was the development of the camera which caused Charles Warren and Louis Brandeis to write a 35 page article in 1890 for the Harvard Law Review. This is the article, a copy of that article from 1890. Now last year when John Roberts appeared before the Senate committee for confirmation, your Senator Feinstein and many of the others leaned forward sitting at the front of their chairs and asked John Roberts, Judge Roberts, he wasn't a Justice yet, Judge Roberts, do you believe here it is from the New York times Judge Roberts, do you believe in a right to privacy? And the room you could have heard a pin drop, because everyone was aware of what was dependent on our chief the man who was going to be our Chief Justice's answer to whether he believed that there existed in the constitution and in this document you are holding in your hands, a right to privacy, when there is no word privacy here. And Roberts if you remember moving forward and said, "Yes I do". And then he went on to quote this article which, you can easily, with your clicker on your computer download. Now the one memorable statement - sentence that everybody who has studied this knows that this 34 year-old Louis Brandeis wrote in Boston in 1890 was the following: "Instantaneous photographs and news paper enterprise have invaded the sacred precincts of private and domestic life." And numerous mechanical devices threatened to make good the prediction that what is whispered in the closet will be proclaimed from the House tops. Every Constitutional Lawyer, every Justice of a Federal Court knows that sentence. But at that time it wasn't law. It was a sentence in a Law School review written by Louis Brandeis at age 34. That was 1890. The year that were going by and various legislatures were passing laws, mainly California and New York but other Liberal States as well, realizing what was happening to not only adults but children who were working in factories long hours and were the victims of - Oh, you might be argue, who were the victims of the right to contract. After all, they or their parents made a deal just as you and I made a deal. There were willing to go to work, the person was willing to hire them. That was the right to contract. But various legislatures were beginning to pass laws, limiting the number of hours requiring a certain amount of pay, in other words, what we would now call some form of social legislation. And that was an ananthema amendment to the Justices who had all of - for the hundred years believe that liberty has found here three times meant the liberty to form a contract without interference by the government. So now we go ahead 15 years from the publication of this article to 1905. We are up in the Bronx. And there is a baker in a little baking store by the name of Lochner. And Lochner has a good business, and his bakers come in early in the morning to get those hot breads out. They come in four-five o'clock in the morning to start working and they are doing so and they are very happy and Lochner is happy; and everything is going along. But New York has passed a law which limits the number of hours that you can employ someone in your enterprise. Lochner disobeys the law and continues hiring these people who were totally happy to work for him. So Lochner is arrested. Suit is brought and the case goes up to the Supreme Court. The case has nothing to do with Lochner. The case and has nothing to do with his bakers. The case has to do with whether the New York Legislature has the legitimate right to pass such law - such social legislation in view of the wanted word concept Liberty. And in that case, the court resoundingly votes in favor of the original meaning of Liberty and that the law is unconstitutional. However, sitting on the Court is the good wise gentlemen from Beacon Hill, Oliver Wendell Holmes. Oliver Wendell Holmes wrote many eloquent dissents. But perhaps this is his most famous and his most precious. In his dissent in the Lochner case in 1905, Holmes wrote, the word Liberty is perverted, when it is held to prevent the natural outcome of a dominant opinion i.e., the dominant opinion was the popular elected legislature, and this Court is perverting that dominant opinion. Unless, writes Holmes, it infringes fundamental principles. Now his use of the word fundamental has resounded down to this day and that was in a dissent. So the country continued it's merry way defending the right to contract and legislation whether it's Oregon or California or Missouri, New York fell. You couldn't pass a law which limited hours, which required certain wages etcetera. Three years went by to 1908 and Oregon tried again. Oregon passed the law, limiting the hours that women could work to 10 hours a day. Brandeis was hired from Commonwealth Street in Boston to defend the Oregon statute in front of the Supreme Court. And Brandeis walked in with 80 pages of evidence. No law school philosophy, none of a high rhetoric of the Harvard Law School. He walked in with 80 pages, of sociologic evidence to lay before the court of what damage was done to health, to families, to children when women worked excessive hours. That had never been done before. All the cases before the Supreme Court have always been argued on legal principles. Now here we had Louis Brandeis who would later sit on the court arguing on the basis of sociological evidence that these laws perhaps were important to uphold. That legislation was upheld. Brandeis was effective in convincing the court. So now there is a wedge in 1908. But things more or less still went merrily on their way. There are many cases the court turned down social legislation. Until 1923, now we are after the First World War. Nebraska perhaps along with other likeminded states, having gone through this horrible, horrible war in Europe decided that to really be patriotic is what counted. And it really wouldn't be a good idea for the students in Nebraska to learn any other language but English. And they passed a law, which made it illegal to teach much less learn French, German, Italian, Spanish or any other language than English. It was a crime to teach a foreign language in Nebraska. That case worked its way up to the Supreme Court. There are lot of people who have thought that Nebraska was justified in that law and the bottom-line is that the majority of the people in Nebraska wanted such a law. What happened at the court? The court will in that case, that the right to learn and the right to teach, as well as property in contract are part of liberty. Liberty is also besides the right to form a contract, the liberty to learn and to teach and to follow your own profession. And to choose what you want to do with your life and so now we are opening this up, the right to contract was not written out. But as a fundamental right that accrues to men because you are human beings. Men and women because you are human beings, there are more parts of liberty, liberty to do things than just contract. So that was a major case. And from that point on from 1923, because of Nebraska, the court established and we don't even think about that any more. That we have a right to go up and study art at the Art Institute here or study German at the Goda Institute or study Spanish down the street. We don't even think about it. But that was denied folks, before 1923 if a state chose to do so. And then we moved from 1923 to 1937. This was a California case where California had written a law establishing a minimum wage for women. This is from 1789 to 1937. In 1937, the court wrote that our constitution does not speak of freedom of contract. There is no more word of contract in the constitution, than there is privacy. But it does speak of liberty three times. And the constitution prohibits the deprivation of liberty, whatever that means, without due process of law. But as of 1937, when the California law was upheld in all it's ramifications i.e. the legislature being able to set minimum wage, been able to set hours, standard that have to be met when a contract is written. This court wrote the liberty now becomes a new kind of liberty. No longer of contract; you see in Nebraska they added the right to teach and to learn and follow your profession as one of those freedoms that is encompassed by the word Liberty. And so state legislatures after '23could continue to deny or legislatures were denied the right to write social legislation. As of '37 that right was taken away. The right to contract was no longer protected under the word Liberty but now since it's no longer Liberty of Contract it's a it becomes a liberty of fundamental values, going back to the word that Oliver Wendell Holmes had used back in Lochner. So guaranteed is Liberty to pursue fundamental values, teaching, learning, occupation, hobbies and liberty from government intrusion into our fundamental values. So fundamental values become the key. Well, Lochner Era i.e. that's what it's referred to as the time between 1905 and 1937, when contract was upheld and social legislation was found to be unconstitutional. Well, Lochner Era defining Liberty as the right to contract is over. Now, as of 1937 Liberty will protect fundamental values and we will now see together in the next few minutes what values become included as fundamental. In 1942 in an Oklahoma case, there had been a good deal of crime down there and it was discovered that in this particular family the grand father had committed these crimes and the father committed the crimes and then the son committed the crimes and the wise legislators down in Oklahoma had said, we have had enough. You commit these kinds of crimes in three generations and we are going to sterilize you. Shocking isn't it? But why is it shocking, it's shocking because today we have a different set of what we consider fundamental values. And it was in 1942 that the court wrote finding that law unconstitutional, that marriage and procreation become basic fundamental rights protected under the Liberty from, not the Liberty to teach but the Liberty from the government taking away my right to procreate and was included in that the right to marry. So now let's go from '42 and skip ahead 23 years to 1965. Now we are in the good state of Connecticut and this is what all the posters and all the hoopla John Roberts was all about, a year ago. In Connecticut, good legislatures of Connecticut, most of them being Catholic at the time passed two statutes making it illegal to council women with regard to contraception, it was a crime to talk to them, it was a crime to discuss contraception, it was a crime to pass out contraceptives and the other bill made it a crime to use contraceptives in your bedroom. That case became known as Griswold versus Connecticut. Griswold was the woman who was president of Planned Parenthood. The case worked its way up to the Supreme Court. And this becomes the controlling case. I have tried to paint for you what happened, the landmarks from the word Liberty, from contract to Lochner, to Nebraska, to Oklahoma, to Connecticut. In 1965 William O. Douglas wrote in Griswold, the state may not, consistent with the spirit of the First Amendment, limit the spectrum of available knowledge, the right of freedom of speech and press includes not only the right to utter or to print but the right to distribute, the right to receive, the right to read and freedom of enquiry, freedom of thought and freedom to teach. Various guarantees in the bill of rights create zones of privacy. There is the problem. He wrote zones of privacy. Now where in this document that you all have in front of you did William O. Douglas find zones of privacy? Just as their never was a word contract neither is the word Privacy. So he enumerated them for everybody and they are really quite easy. The first amendment, the first amendment guarantees you the right of association, the right to speak. The right of association, it can be argued you have the right to go home tonight and have a private meeting and a private group, to go out to dinner, in a private group with whom you wish. And the government has no right to invade your liberty to choose with whom you wish to have a private dinner tonight. It's there, but not everybody would would agree to that. The right to association is a right to a bit of privacy from the government. And then he goes on, the third amendment. There is a prohibition against quartering of soldiers without the consent of the owner. Well we know what that's from and that's from both England and the colonial days, when the government would come through and we need to put eight soldiers in your house tonight. And you don't agree with this and something bad is going to happen. That was abhorrent to our founders. And so they guaranteed the concept, which we all sort of have soaked up that every man's home is his castle. Well, what does that mean? That means, doesn't it? That if a San Francisco police officer came to your door and knocked on your door and say get out of the way, I want to search your home. You would instinctively in your bones know that doesn't go. Why? - Why? What's the basic reason why it doesn't go in this country? Because you have a right to privacy in your home. Without due process it cannot be invaded. Yes, they can come with a warrant. That's what we call due process. And someone, some legal authority, some judge has given them the okay - with probable cause. But just under whim, your privacy your right to associate is protected by the third amendment. In the fourth amendment, the right to be secure, in your persons, houses, papers and affects. That's right in front of you in the fourth amendment to our constitution. If that William Douglas is arguing, isn't guaranteeing you a right of privacy, I don't know how else they could have set it not using that particular word. So there is the fourth example in the bill of rights of the concept of protecting as a part of liberty - your privacy. In the Fifth Amendment he points out that the self incrimination clause, the right to keep quiet creates a zone of privacy around ourselves that the government cannot make us talk. Just as they guarantee us free speech, they guarantee us the right to keep quite. We can keep our private thoughts to ourselves. That was really passed to prevent torture because if the government can require you to talk then they might do some things that would persuade you to talk. Even the idea of the government asking you to talk is, if you don't wish to, is protected as a zone of privacy of your thoughts in the Fifth Amendment. And then in the ninth amendment, the ninth amendment is a bit little more complicated but the founders wrote the ninth amendment to guarantee to the people other rights which, in fact, we haven't thought of back in 1791. You have a question, okay okay. And so Douglas wrote the controlling opinion. These rights then became guaranteed against state action by the due process clause of the 14th amendment. But sitting on the court, with Douglas was Justice Arthur Goldberg. And Arthur Goldberg wrote the following; the concept of Liberty, listen to these words very carefully, because I am going to ask you all a question. The concept of liberty protects those personal rights that are fundamental and is not confined to the specific terms of the bill of rights. The rights to marital privacy, and to marry and to raise a family, are fundamental. Now, sitting on the Court with that - so this is the case that established as a Fundamental Right Privacy. Sitting on the Court with William O. Douglas and Arthur Goldberg was Thurgood Marshall. My question to you is who is clerking for Arthur Goldberg in 1965? Come on guys, this is the California audience. Who is clerking? No - no - no, Earl Warren went from Governor to Chief Justice. He never - Governor Warren was never in a court room before he became Chief Justice. That's true. Stop, keep going. No he -he clerked for Rehnquist. Okay, I'll tell you. You guys struck out here at San Francisco. He is from San Francisco, Stephen Breyer. Stephen Breyer from San Francisco was clerking for Arthur Goldberg in 1965 at the time the Griswold case was written. But what do we know - we do we and that's a secret. So - shh. You know when the Justices die, they take their papers and they put them away in some vault somewhere at some University, and 50 years later they are going to open them up. Okay. Thurgood Marshall's papers were finally opened up. And among his scraps jotting down scraps, he would doodle as - as sitting on the Court. And all the stuff was thrown into a box and later examined. And it - it was found that Thurgood Marshall had written that Arthur Goldberg's clerk, Stephen Breyer wrote those words. So the words that appeared in Griswold under the name Arthur Goldberg, I'll read you again, and the reason I am going to do this is because your Stephen Breyer is now on the Court. And he wrote these words which generally are not known because it was only discovered, in a - in a scribble by Thurgood Marshall, years after his - his death and his papers were examined. So really it was Breyer who wrote the concept of liberty protects those personal rights that are fundamental and is not confined to this specific terms, the Bill of Rights. The rights to marital privacy and to marry and to raise a family are fundamental. Now I see the time is going on, so I am going to go zip, zip and then have fun with a few questions. It was only two years later, in 1967, that a White Boy fell in love with a Black Girl in Virginia. They were nine States prohibiting marriage between the races. That case went up to the court, Loving versus Virginia in 1967. "The freedom to marry has long been recognized as one of the vital personal rights and fundamental liberties essential to the orderly pursuit of happiness by free man." In other words, now Liberty is protecting fundamental values. Gone is contract, that's dead and gone. Now the word liberty, you know, you sing the Star-Spangled Banner and we sing in all the songs liberty. What does that mean? Well now it means and has come to mean the protection of fundamental values. So that in 1972, just five years after the Virginia case, what struck down all the state laws limiting marriage between races was Roe versus Wade and black men has a tough time writing that case. He spent the summer up the Mayo Clinic. But basically when you read through it, it was based on the privacy of a woman's body. The right of the state and the government not to interfere with my fundamental privacy, a woman's fundamental privacy to make decisions, regarding her own body and her own health. And then in '78 in a case where in in a state which was astounded by the fact that so many men who had become fathers within wedlock or without were not paying child support. And so the state in all their wisdom passed a law that any father who has in arrears of their child support cannot walk in and get a marriage license from the state. Why in the world would a state want to give a marriage license to someone who isn't paying for the children he has already fathered? Right wrong. The court decided, consistent with this whole line of cases that the right to marry is fundamental under Liberty and equal protection. Again nailing it closed that these fundamental values cannot be infringed and then we go on there are other cases, time is going on, finally to the Woodridge versus Massachusetts case and your Mayor down here performing marriage between people of the same sex, although slightly different than Massachusetts. What I have tried to do is to paint for you a picture of how the word Liberty, first protected contract and only following the eloquent dissent by Oliver Wendell Holmes in 1905 in the Lochner case and then moving ahead to '37 was Liberty defined to mean the protection of our fundamental values and these fundamental values of privacy are certainly one of them. So Connie, I am ready to have some fun.
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