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.

Michael W. Flynn
October 20, 2007


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. 

The court first recognized that there was no text in the Constitution that expressly guaranteed a right to “privacy.”  Rather, the court reviewed past decisions in which it had applied rights not found in the text of the Constitution to certain situations.

For example, the First Amendment does not expressly create a right to associate with other people who share your beliefs. But, the First Amendment does guarantee the right to free speech. If you associate with an organization that promulgates a specific message, you are effectively speaking. The court held that the government could not intrude upon speech, and similarly could not intrude upon associating with others who share those ideas and disseminate them. In this way, the right to associate exists within the First Amendment, even though that right is not expressly granted. The court also cited the Fourth, Fifth, and Ninth Amendments, noting that they all created zones of privacy into which the government could not intrude.

The court characterized those cases, noting they “suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” By citing to these various “penumbras” of privacy, the court concluded that the Constitution implicitly prohibited the government from intruding into an area of life so private as the marital bed. 

The dissenting opinions by Justices Stewart and Black argued that this “penumbra” analysis was simply absurd. They argued, and some scholars have agreed, that such a holding would allow the court to invent various rights under the Constitution simply by calling them privacy rights. 

Indeed, this privacy holding was soon extended in subsequent cases. The court held that the government could not deny contraceptives to unmarried couples, and later applied this right to privacy in Roe v. Wade to conclude that the constitution protects a woman’s right to obtain an abortion. That right has been tested over time, but in each case where the right to an abortion has been challenged, the court has not accepted the invitation by abortion opponents to overrule Griswold, and overrule the implied right to privacy contained in the Constitution. This challenge to the implied privacy right has also been at issue in cases involving consensual noncommercial sex, such as Lawrence v. Texas. In that case, the court struck down a Texas statute that prohibited sodomy between men, holding that the right to privacy extends to acts of consensual sex between two individuals, and the government cannot intrude into those acts. Again, the right to privacy was invoked, and reaffirmed in that case.

So, to answer Dewayne’s question, it depends on whom you ask about this right to privacy. Under current Supreme Court jurisprudence, the right exists, and has been applied to exclude the government from interfering in several aspects of people’s private lives. The right to privacy is no more a “myth” than any other right under the Constitution.

Some justices on the court, including Justices Scalia and Thomas, have expressly stated in dissent that the right to privacy does not exist in the Constitution, and that Griswold was incorrectly decided. These justices would argue that the right is a myth, and was created by liberal members of the court.

Of course, the Supreme Court could one day overrule Griswold and the underlying right to privacy. The court might limit that right. The court might expand that right. We have no choice but to wait and see. For now, the right to privacy exists; it is not a myth. 

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life.  Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.

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