A Brief History of the Right to Privacy

06Nov08

I do this post about once every four months, in some form, and I never mind doing it. Not only is the Constitutional right to privacy arguably the most important right currently at issue in the U.S., it’s also one of the most endlessly fascinating – often, precisely because it’s so controversial.

First: no, you won’t find a “right to privacy” listed in the Constitution. The word “privacy” doesn’t appear anywhere in the document, period. The closest thing to an actual textual reference is the Fourth Amendment, which guarantees the right “to be secure” in one’s “persons, houses, papers, and effects from unreasonable search and seizure.” The Fifth and Fourteenth Amendments, which are cited for the “right to privacy” embodied in Roe v. Wade and similar cases, only spout something about a right not to be deprived of life, liberty, or property “without due process of law.” What’s up with that?

The original notion of a Constitutional right to privacy began in the Fourth Amendment, which creates a basic right to keep one’s personal affairs out of the prying eyes of the government, and the First Amendment, whose rights to freedom of speech, press, religion and association presuppose a basic freedom of thought, belief, and intellect.

Probably the first case in which the Supreme Court considered an independent Constitutional privacy right was Meyer v. Nebraska (1923), which challenged a state law making it illegal to teach “any modern language other than English” to schoolchildren before eighth grade; the court held this violated the children’s liberty right to learn foreign languages.

The first straight-up privacy language appeared in Olmstead v. United States (1928), interpreting the Fourth Amendment: “[The makers of our Constitution] sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.”

In 1942, the Court struck down Oklahoma’s Habitual Criminal Sterilization Act in Skinner v. Oklahoma. The Act required that anyone convicted as a “habitual offender” undergo a vasectomy or tubal ligation. The Court found that the forced sterilization violated the due process provision of the Fourteenth Amendment. (This is the same provision from which the right to abortion arises under Roe, meaning that if Roe is overturned, the right to choose not to be sterilized will also be in danger of elimination. –Ed.)

The term “right to privacy,” as we understand it, first appeared in Griswold v. Connecticut (1965), challenging a state statute that made it illegal to dispense or counsel on the use of contraceptives, even to married couples. In Griswold, the Court stated that, while certain rights were not explicitly listed in the Constitution, they could be found in the “penumbras and emanations” arising from certain other listed rights, as the non-listed rights had to exist in order for the listed right to work properly. For instance, a right to privacy of opinion arises from the rights guaranteed in the First Amendment, because without a right to believe what you like, a right to say or publish it isn’t much use. From the Due Process Clauses of the Fifth and Fourteenth Amendments, then, the Court found a penumbral right of “privacy and repose,” at least between married couples in their own bedrooms. The Court followed this line of thought in Loving v. Virginia (1967), striking down statutes barring interracial marriages based a right to privacy in choosing whom to marry.

Next came the most controversial of privacy cases, Roe v. Wade (1973). Like basically all the other privacy cases, Roe is based on the Fifth and Fourteenth Amendment due-process penumbra arising from Skinner and articulated in Griswold. In Roe, the court held that the right of a woman to make the choice whether or not to terminate a pregnancy could be regulated but not abrogated by government as long as the fetus remained at a pre-viable state. (The plain language actually protects the right of the physician to provide the service, not of the woman to choose it; but I have yet to see anyone actually read this case in that fashion, including the Supreme Court. –Ed.) Once the fetus reaches viability, the state’s interest in the health of the mother and fetus can override the mother’s interest in terminating the fetus in certain circumstances. In 1992, Planned Parenthood v. Casey further articulated the boundaries of the viability rules, again based on the same Fifth/Fourteenth Amendment “substantive due process” basis.

In 2003, the Supreme Court held in Lawrence v. Texas that the right to privacy protected the rights of consensual adults to engage in the consensual adult sexual acts of their choice within the confines of their own bedrooms. In so doing, Lawrence overruled Bowers v. Hardwick (1986), which upheld a Georgia state statute criminalizing sodomy. Justice Scalia’s dissent in Lawrence is worth a read; as a staunch originalist, he wastes no ire whatsoever excoriating the delicate privacy balance Justice Kennedy strikes in the majority opinion.

Some legal scholars have opined that the intersection of Loving and Lawrence describes an obvious Constitutional protection for gay marriage; whether a court will buy that argument remains to be seen.

Currently, privacy doctrine exists on a “firm but precarious” basis. So many cases rest on the notion that a Constitutional right to privacy, albeit not articulated, must exist that to overturn one would certainly send the entire house of cards (or, as Justice Scalia once put it, the “fairy castles in the sky”) toppling. On the other hand, sending the current castles toppling by means of an explicit “right to privacy” amendment may be the only way to guarantee the crucial privacy rights the Court has so far articulated against the winds of judicial change.

For whatever it’s worth: I, personally, do not see a right to privacy in the Constitution. I also do not see how we are supposed to exist as an equal and autonomous society without a right to privacy and courts that strongly support such a right. I have not yet figured out the answer; better legal minds than mine have also been trying for decades. I am also among those who believe Loving and Lawrence do equal a fundamental right to choose whom to marry, no matter what that person is packing in his/her pants – and if they don’t, the Equal Protection Clause sure as hell curtails anti-gay-marriage discrimination on the grounds that two competent adults should not be told they cannot sign a certain piece of paper based on their genitalia.

Whether a Constitutional privacy right exists is one of the biggest things upon which President-Elect Obama and I disagree. I should probably defer to him, seeing as he went to a better law school than I, taught at a better law school than I, and managed to get himself elected President. But I don’t think I’ll be doing that today. 😉

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One Response to “A Brief History of the Right to Privacy”

  1. 1 Dana

    Thank you!! Clear, clever and concise. I’m thimking … 😀


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