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The Constitutional Right to Privacy

Is there a Constitutional right to privacy?  Some sources say that it is implicit in the Constitution, while others say that the right to privacy is a myth.

By
Michael W. Flynn
October 20, 2007

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First, a disclaimer: Although Legal Lad is an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction.  Legal Lad does not intend to create an attorney-client relationship with any listener.   

Today’s topic is the constitutional right to privacy.  Dewayne wrote:

Is there a Constitutional right to privacy?  Some sources say that it is implicit in the Constitution, while others say that the right to privacy is a myth.

Well Dewayne, you have just stumbled across one of the most hotly contested constitutional questions today. The short answer is that current Supreme Court jurisprudence recognizes a right to privacy embedded in the Constitution, but at least two sitting justices and many legal scholars have called this “right” a myth propagated by “activist” judges.

At this point in the episode, Legal Lad normally cites to the text of the constitution to begin his analysis. However, the words “right to privacy” simply do not appear in the document. The first case that expressly recognized a right to privacy was Griswold v. Connecticut, a 7-2 opinion. The State of Connecticut had passed a law criminalizing the distribution of any drug or medicinal instrument for the purpose of preventing conception in any situation. Estelle Griswold, the director of a New Haven Planned Parenthood clinic, was arrested after a married couple was given contraceptives by a doctor at the clinic. The director challenged the constitutionality of the law, arguing that it violated due process rights under the Fourteenth Amendment. 

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