>>Like so many other concepts in constitutional law the Right to Privacy is linked to vying
interpretations of what the constitution means. That we now recognize and protect not only
traditional privacy rights against the state -- like expectations of privacy grounded in
property rights -- but also privacy rights in marriage and personal relationships; a
right to privacy that protects a woman's right to choose whether to terminate her pregnancy;
privacy rights in same-sex relationships; and even a limited privacy right in end of
life decisions, shows just how successful a more contemporary interpretation of the
Constitution has been over the last 40 years. But the criticisms of this capacious understanding
of privacy rights also shows the viability of a more traditional and originalist approach
to constitutional interpretation.
Before we jump into these controversial right to privacy cases for this section, though,
we have to appreciate the fact that the concept of a right to privacy has a long tradition
in the common law and American constitutional law. At least since the nineteenth century
the Court has recognized a limited privacy right, starting with the increased protection
that the Court placed on property rights. And especially as the Court began to develop
its 4th Amendment jurisprudence during the 1920's and prohibition, Americans were very
comfortable with a general notion of a right to privacy. Moreover, as the Court began to
recognize and enforce more aspects of Civil rights and Civil liberties after the constitutional
crisis of 1937, it was only a matter of time that other rights, like those that would eventually
be protected under the umbrella of privacy, would come before the Court.
But changes in the larger social and political climate of the United States during the 1960's
and 1970's best explain the immediate acceptance by the Court of the extension of privacy rights.
The sexual revolution of the 1960's and 70's sensitized American culture, politics, and
eventually the law, and pushed the Court to formally recognize that sexual intimacy and
its attendant concerns -- especially the choice of whether or not to start a family or even
have children at all, even outside of marriage.
We see both the older conceptions of privacy and the more immediate concerns that would
widen the right, in our first case -- Griswold v. Connecticut in 1965. In Griswold, the majority
overturned a Connecticut law that not only prohibited the use of birth control itself,
but also prohibited the dissemination of information about contraceptives more generally. The law,
the Court's majority argued, infringed a right to privacy concerning the most intimate decisions
of married couples, thus violating the 14th Amendment's due process clause. The Court
found this right in two places in the Constitution, even though the right is not explicitly written
down in the text itself. One place was in the quote penumbras and emanations of the
Bill of Rights. The 1st Amendment's free speech and association protections, plus the 3rd
Amendment's prohibition against the quartering of troops in homes, plus the 4th Amendment's
warrant requirements suggested a larger right to privacy that the Founder's sought to protect
in the Bill of Rights. You would have to have a right to privacy in mind if you explicitly
sought to protect speech, association, our homes and our person and property from unreasonable
searches and seizures. The Court also suggested that the right to privacy could be found in
the 9th Amendment, which provides that "The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people."
So the Court recognized both an older basis of privacy and a newer, more contemporary
one.
Of course the Court's decision was not unanimous, and the dissents, especially from Justice
Black, have characterized larger criticisms of the Court's privacy jurisprudence ever
since. Justice Black argued that reading into the Constitution rights that were not explicitly
enumerated, created two dangerous problems. The first was that if the Court could simply
insert a right into the text, it could just as easily take that right away. The second
problem was that in reading these rights into the constitution the Court was substituting
its understanding and interpretation of the document with that of democratic majorities.
In the case of Griswold, then, the text of the constitution is silent regarding a privacy
right concerning contraception. Who, then, is more legitimate in deciding whether this
right exists, the unelected Court, or the democratic majority of Connecticut that enacted
the law? This question still serves as the basis for contending notions of property rights.
The subsequent development of privacy rights, though, would not only widen, but become more
controversial. Soon after Griswold in 1965, for example, the Court extended the privacy
right with respect to contraceptives to unmarried as well as married couples. But the most controversial
development in privacy rights is of course its extension to abortion rights in Roe v
Wade, as the Court extended the privacy right to a woman's decision whether or not to terminate
her pregnancy. Importantly, the Court did not recognize an unlimited right, as it initially
allowed the abortion right to be more regulated by states as a pregnancy progressed through
its three recognized trimesters. And even when the Court became more solidly conservative
throughout the 1980's and into the early 1990's, the Court still upheld the right even though
it jettisoned the trimester framework. In its place, it created another standard to
protect the right and the right of states to regulate it: the test now is whether a
regulation creates an undo burden on a woman's right to terminate her pregnancy.
As controversial as privacy rights have become in the area of abortion, the Court has also
found that intimate relations between same sex couples, as well as end of life decisions,
are also protected as privacy rights.
SO as you wade through these controversial cases, think about the following questions:
1) If a right to privacy exists, where in the Constitution is it found? In the "penumbras
and emanations" of the Bill of Rights? In the 9th Amendment? Somewhere else?
2) Does it even matter that the right is not enumerated? Are these areas -- a woman's right
to choose; intimate sexual decisions between adults; and even end of life decisions -- too
fundamental to go unprotected? 3) Should these areas of privacy rights get
the same protection as enumerated rights, like those in the Bill of Rights?
4) And finally, who is more legitimate in determining what these rights are? Unelected
judges or democratic majorities?
These are controversial cases that often provoke extreme reactions, but they are also some
of the most important and interesting cases in American constitutional law. Use that emotion
to help you think seriously and critically about them.