The Right of Privacy: Is it Protected by the Constitution?

The U. S. Constitution contains no express right to privacy. The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment's privilege against self-incrimination, which provides protection for the privacy of personal information. In addition, the Ninth Amendment states that the "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people." The meaning of the Ninth Amendment is elusive, but some persons (including Justice Goldberg in his Griswold concurrence) have interpreted the Ninth Amendment as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments.

The question of whether the Constitution protects privacy in ways not expressly provided in the Bill of Rights is controversial. Many originalists, including most famously Judge Robert Bork in his ill-fated Supreme Court confirmation hearings, have argued that no such general right of privacy exists. The Supreme Court, however, beginning as early as 1923 and continuing through its recent decisions, has broadly read the "liberty" guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage, and termination of medical treatment. Polls show most Americans support this broader reading of the Constitution.

The Supreme Court, in two decisions in the 1920s, read the Fourteenth Amendment's liberty clause to prohibit states from interfering with the private decisions of educators and parents to shape the education of children. In Meyer v Nebraska (1923), the Supreme Court struck down a state law that prohibited the teaching of German and other foreign languages to children until the ninth grade. The state argued that foreign languages could lead to inculcating in students "ideas and sentiments foreign to the best interests of this country." The Court, however, in a 7 to 2 decision written by Justice McReynolds concluded that the state failed to show a compelling need to infringe upon the rights of parents and teachers to decide what course of education is best for young students. Justice McReynolds wrote:

"While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."

Two years late, in Pierce v Society of Sisters, the Court applied the principles of Meyer to strike down an Oregon law that compelled all children to attend public schools, a law that would have effectively closed all parochial schools in the state.

The privacy doctrine of the 1920s gained renewed life in the Warren Court of the 1960s when, in Griswold v Connecticut (1965), the Court struck down a state law prohibiting the possession, sale, and distribution of contraceptives to married couples. Different justifications were offered for the conclusion, ranging from Court's opinion by Justice Douglas that saw the "penumbras" and "emanations" of various Bill of Rights guarantees as creating "a zone of privacy," to Justice Goldberg's partial reliance on the Ninth Amendment's reference to "other rights retained by the people," to Justice Harlan's decision arguing that the Fourteenth Amendment's liberty clause forbade the state from engaging in conduct (such as search of marital bedrooms for evidence of illicit contraceptives) that was inconsistent with a government based "on the concept of ordered liberty."

In 1969, the Court unanimously concluded that the right of privacy protected an individual's right to possess and view pornography (including pornography that might be the basis for a criminal prosecution against its manufacturer or distributor) in his own home. Drawing support for the Court's decision from both the First and Fourth Amendments, Justice Marshall wrote in Stanley v Georgia:

"Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."

The Burger Court extended the right of privacy to include a woman's right to have an abortion in Roe v Wade (1972), but thereafter resisted several invitations to expand the right. Kelley v Johnson (1976), in which the Court upheld a grooming regulation for police officers, illustrates the trend toward limiting the scope of the "zone of privacy." (The Court left open, however, the question of whether government could apply a grooming law to members of the general public, who it assumed would have some sort of liberty interest in matters of personal appearance.) Some state courts, however, were not so reluctant about pushing the zone of privacy to new frontiers. The Alaska Supreme Court went as far in the direction of protecting privacy rights as any state. In Ravin v State (1975), drawing on cases such as Stanley and Griswold but also basing its decision on the more generous protection of the Alaska Constitution's privacy protections, the Alaska Supreme Court found constitutional protection for the right of a citizen to possess and use small quantities of marijuana in his own home.

The Supreme Court said in the 1977 case of Moore v. East Cleveland that "the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in the Nation's history and tradition." Moore found privacy protection for an extended family's choice of living arrangements, striking down a housing ordinance that prohibited a grandmother from living together with her two grandsons. Writing for the Court, Justice Powell said, "The choice of relatives in this degree of kinship to live together may not lightly be denied by the state."

In more recent decades, the Court recognized in Cruzan v Missouri Department of Health (1990) that individuals have a liberty interest that includes the right to make decisions to terminate life-prolonging medical treatments (although the Court accepted that states can impose certain conditions on the exercise of that right). In 2003, in Lawrence v Texas, the Supreme Court, overruling an earlier decision, found that Texas violated the liberty clause of two gay men when it enforced against them a state law prohibiting homosexual sodomy. Writing for the Court in Lawrence, Justice Kennedy reaffirmed in broad terms the Constitution's protection for privacy:

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life....The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.'”

One question that the Court has wrestled with through its privacy decisions is how strong of an interest states must demonstrate to overcome claims by individuals that they have invaded a protected liberty interest. Earlier decisions such as Griswold and Roe suggested that states must show a compelling interest and narrowly tailored means when they have burdened fundamental privacy rights, but later cases such as Cruzan and Lawrence have suggested the burden on states is not so high.

The future of privacy protection remains an open question. Justices Scalia and Thomas, for example, are not inclined to protect privacy beyond those cases raising claims based on specific Bill of Rights guarantees. The public, however, wants a Constitution that fills privacy gaps and prevents an overreaching Congress from telling the American people who they must marry, how many children they can have, or when they must go to bed. The best bet is that the Court will continue to recognize protection for a general right of privacy. 1. Assuming that there exists a general right of privacy, what sort of conduct to you think lies at its very center? What sort of conduct lies at its periphery? What sort of conduct should be considered outside of the protection of a reasonably interpreted right of privacy?
2. Is there a stronger basis in the Constitution for protecting personal privacy rights as opposed to personal economic rights, such as the liberty of contract recognized in Lochner v New York?
3. When the state burdens an important privacy right, what sort of justification should the state have to make to sustain its regulation? What arguments would be likely to convince the U. S. Supreme Court (unlike the Alaska Supreme Court) that the Constitution protects the right to possess obscene materials but not marijuana or other drugs?
4. Some state constitutions provide express protection for privacy. Would you favor including such a provision in your state's constitution? What wording would you suggest for a constitutional amendment protecting privacy?
5. The Constitution has been interpreted to protect the right to marry, as well as the right to live a homosexual lifestyle. Should it also be interpreted to protect the right of homosexuals to marry?
6. Are a person's choices with respect to personal appearance protected by the Constitution? Should the Constitution protect the right of students or police officers to wear their hair in any style they see fit? Why or why not? Would a tax on beards, such as the one adopted by Peter the Great, be constitutional?
7. The choice of a woman to have an abortion was found in Roe v Wade to be the sort of fundamental personal decision deserving privacy protection under the Fourteenth Amendment's liberty clause. In what respects is abortion a private matter, and in what respects might it not be? If you don't believe that the Constitution protects the decision to have an abortion, do you believe that it would prevent the government from forcing a woman to have an abortion and, if it would, what is the constitutional basis for that protection?