Constitutional Patriotism and the Right to Privacy: A Comparison of the European Court of Justice and the European Court of Human Rights

This chapter examines attitudes towards national diversity in one piece of the emerging European constitution-the right to privacy. There is a thick constitutional culture of privacy in Europe. The familiar debate of how to balance the right to privacy against freedom of expression, the market, and public security can be heard in many places: before the Court of Justice and the European Court of Human Rights, in the European Parliament and the European Council, and before Europe\u27s numerous data privacy ombudsmen. And in these places, the less familiar problem of tolerance of diversity within Europe, among Europe\u27s different national communities, also arises. These communities all recognize a private sphere that sometimes deserves to be protected and that sometimes must give way to the demands of others. Yet these same communities also differ in their definition of the private sphere and the circumstances under which this private sphere must be sacrificed for the sake of other values such as freedom of expression. Thus the right to privacy poses squarely the dilemma of constitutional patriotism: can a right that is common to all of Europe nonetheless acknowledge and accommodate national diversity