The Invisible Constitution in Comparative Perspective

NASA, 562 U.S. at 146.

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Soundings and Silences 

35

that falls outside the points isolated.

87

 Doing so would entail unjustifiably treat-

ing the absence of language expressly connecting the distinct constitutional 

provisions as a “door-closing” silence, in the parlance of this chapter. The 

alternative would be to treat the absence of connecting language linking the 

provisions in question as a “door-opening” silence; an open invitation to bring 

within constitutional control other kinds of government action that impinge 

on the same set of overlapping values, even though falling outside the points 

expressly isolated in the Constitution’s text.

As we will see in the section of this chapter dealing with rules of construction 

or interpretation bearing on textual gaps or omissions, the text is in fact not 

entirely silent on that choice of approaches. But even if it were, it is impor-

tant to note that one option open to constitutional interpreters is to remain 

silent about how to read the Constitution’s silence on the existence of a general 

right to informational privacy beyond either the First Amendment or the Fourth. 

That is exactly what the Supreme Court did in the NASA case, where the 

majority opinion written by Justice Alito held that the government’s nonphys-

ical “probes” into the personal backgrounds of people seeking government 

employment to work on improving the Hubble Telescope’s ability to conduct 

deep space probes were not too invasive to comply with whatever unwritten 

constitutional right of “informational privacy” might exist.

88

 Concurring in 

the result but dissenting from the majority’s approach, Justice Thomas and 

the late Justice Scalia all but tore their hair out over the Court’s insistence 

on leaving that question unanswered. To them, it seemed obvious that the 

silence of the Constitution’s text on the existence of a right of informational 

privacy had a door-closing character, given the fact that distinctive dimensions 

of what such a right might be designed to protect were indeed picked out and 

protected by a specific constitutional provision.

89

The place of silences in judicial opinions about the Constitution – a matter 

on which the majority and the concurring justices in NASA strongly disagreed –  

will be taken up in a later section of this chapter, distinguishing silences 

87 

See Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting; citations omitted “[L]iberty 

is not a series of isolated points . . . It is a rational continuum which, broadly speaking, includes 

a freedom from all substantial arbitrary impositions and purposeless restraints.”

88 

NASA, 562 U.S. at 159; see also 

ibid.

, at 161 (Scalia, J., concurring in the judgment).

89 

Ibid.

, at 161–2 (Scalia, J., dissenting). But right-leaning jurists are not the only ones who fall 

into this trap. See e.g., Atwater v. City of Lago Vista, 532 U.S. 318, 336–40 (2001) (opinion 

for the Court by Souter, J.; rejecting the view that the Due Process Clause “forbade peace 

officers to arrest without a warrant for misdemeanors” on the ground that founders were not 

concerned enough about the practice to prohibit it in the most relevant specific provision, the 

Fourth Amendment.

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