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
4-minute read

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.