The Right To Privacy

What is the constitutional right to privacy, and why is it controversial?

The term “privacy” is part of the problem: when Americans think about privacy, they think about someone peeking through their window, or riffling through their personal documents–invading areas that we all believe to be…well.. private.

That limited notion of privacy is implicated in the Fourth Amendment’s protection of our right to be “secure in our persons, papers and effects.” But the constitution arguably erects a zone of protection around a different and more expansive type of privacy–the protection of individual autonomy, what we might term the individual’s right to “self-government.” That kind of privacy, protected for the past fifty-plus years by the doctrine of substantive due process, bars the government from making decisions that most of us believe are properly the province of the individual citizen.

Those areas are outlined throughout the Bill of Rights.

The First Amendment forbids government from either censoring or requiring our speech or favoring certain theologies or religions–essentially, the First Amendment requires government to respect the individual’s liberty of conscience. The (overwhelmingly forgotten) Third Amendment says government cannot force us to “quarter soldiers” in our homes (a person’s home is her castle…). The Fourth Amendment explicitly requires government to respect our “security” in our persons and effects absent probable cause to invade that security.

The greatly  under-appreciated Ninth Amendment specifically asserts that rights not explicitly enumerated nevertheless are retained by the people.

That language in the Ninth Amendment was intended to address the concerns of those Founders like Alexander Hamilton who worried that the “enumeration” of protected rights in the Bill of Rights might come to be considered exhaustive–that the omission of certain rights from the list would someday prompt self-declared “originalists” to ignore equally important liberties, including those necessary to the realization of the rights that were enumerated. When the Supreme Court ruled that government had no right to decide whether married couples could use contraception, the Court based its ruling on the proposition that a fair reading of the Bill of Rights required recognition of a “penumbra” protecting a zone of privacy–a zone of personal autonomy– that government was bound to respect.

Scholars and pundits like to poke fun at the term “penumbra,” and the language may well have been ill-chosen, but the Court’s insistence that any fair reading of the Bill of Rights requires respect for that enhanced zone of personal privacy was absolutely correct.

Recognition that the Bill of Rights protects personal or “intimate” decisions from government busybodies–the doctrine of substantive due process, or the right to privacy– has been the legal basis for recognition of rights most of us consider fundamental to the fair operation of modern society: a woman’s right to control her own reproduction, the right of competent adults to engage in sexual activity with other consenting adults, the recognition of same-sex marriage…

If today’s Court eviscerates or overrules that doctrine–if it refuses to respect the line between decisions that are properly left to individuals and those that can properly be made by the legislatures of various states, the United States will head down the path of the Taliban. The only difference will be the content of the theology that the state will impose.

Back in the day, when I was Executive Director of Indiana’s ACLU, I used to explain that the Bill of Rights answered a simple question: who decides? Who decides what prayer you say, or if you pray at all? Who decides what book you read, what political ideology you adopt? Who decides whether you marry, and who? Who decides whether you procreate? The whole point of the Bill of Rights was to ensure that government stayed in its lane–that the state refrained from making decisions that were none of governments’ business.

Today’s radical Court is intent upon erasing those lane lines.

No matter what Alito says to the contrary, eliminating the doctrine that has kept government in its lane won’t be limited to issues of reproductive choice. After all, at least four of the radical judges who voted to overrule Roe insisted during their confirmation hearings that it was “settled law.”

To the extent there is a controversy over the Constitutional right to privacy, it is between those who believe government has the right to make our most intimate decisions and those of us who disagree. Today’s Court is on the wrong side of that debate.

 

26 thoughts on “The Right To Privacy

  1. Thank you for mentioning the Taliban. Our American Taliban (the crazed R’s) share a great deal them. This is serious stuff.

  2. Justice Goldberg’s concurring opinion in Griswold was the better opinion in that case. To be fair to Justice Douglas, the “penumbra” concept was used several times before his 1965 opinion. Justice Goldberg wrote that one need not go so far. The Ninth Amendment covers privacy.

  3. Self-determination;
    “Determination by oneself or itself, without outside influence. Freedom to live as one chooses, or to act or decide without consulting another or others.”

    Idea.int/sites/default/files/publications/self-determination-Constitution-brief.pdf

  4. I don’t know why the link doesn’t function, but it’s the best argument against Justice Alito.

    Self-determination is not only a right in our Bill of Rights, it’s also a key tenet in International Law and Civil Rights!

  5. The authoritarians will chase everybody from the states they control into non-authoritarian states. We will have the choice of where to live and the great sort will continue with no end in sight except as the climate catastrophe materializes, we’ll see mass migrations from the Global South.

    However, none of that may come to fruition if we have WW3. Will the Earth be livable after a nuclear war?

    We are already seeing birth rates in mass decline all around the globe with few exceptions as adults decide they don’t want to bring kids into this God-forsaken world.

    My nomad days are over and before long my choices will dwindle as well. I do feel bad for young families because we’ve let them down by leaving a world in chaos. Joe Biden wanted to “bring people together.” He sure united Washington and Europe with WW3.

    What a great leader!

  6. Todd, get a grip. And add some facts. We’re not gone yet.

    And we’re not to WW3 yet. Before you really go off the deep end, here’s some light reading from the people who brought us the Doomsday Clock: https://thebulletin.org/nuclear-risk/#nav_menu.

    As for Demographics, its really only the industrialized countries who don’t like immigrants (Japan, China, Russia for a couple) that seem to have most of the problems. We will join that club if we don’t change our immigration policy to be more like Canada’s

    Here’s a site that shows demographic curves for almost every country in the world. Maybe you can find a country more suitable to your needs? https://www.populationpyramid.net/russian-federation/2019/

  7. “secure in our persons” should cover our right to privacy regarding our “private parts” and how we choose to use and/or protect them. Republicans discovered a way to add money-making by ignoring this and Nixon signed the bill ending the law against health care being for-profit business. It is now a corporate level source of private wealth and encompasses Big Pharma to cover all bases. This part of the problem of loss “The Right To Privacy” regarding our bodies and the promised “confidentiality” regarding our medical care is now obsolete. As the problem has become more and more public and such as the anti-abortion religious faction has taken a death grip on this nation; if not Constitutional protection, can we find the Republican “right” to control our most private lives somewhere in George W’s “Patriot Act” which makes up its own rules as they all, including SCOTUS, ignore their Oath of Office on all issues? We try to teach our children the “good touch vs. bad touch” to protect themselves; the Republicans need to learn that lesson regarding “The Right To Privacy”.

    “To the extent there is a controversy over the Constitutional right to privacy, it is between those who believe government has the right to make our most intimate decisions and those of us who disagree. Today’s Court is on the wrong side of that debate.”

    This issue is no longer at “debate” level; it is a religious dictatorship issue denying democracy, civil and human rights to the majority of Americans with the minority party ruling. They have their knee on our necks and, like Chauven with his knee on George Floyd’s neck, they are watching the clock to see how long it takes us to die. I believe we are gasping our last breath.

  8. It’s just a shame that 5 members of SCOTUS never understood the Constitution.

  9. privacy is freely given away.near any and all personal privacy today is held in most social media accounts.does this piece of privacy add to todays subject? the court may strike down ones own privacy,by argument,(whos and why?)..todays privacy is freely given away in the public domain. when you load that app,what did you give up in the sphere of your privacy? many apps never disclose what they use it for,or,were we are too busy or unable to fine print decipher the clause. (like whos the third of fouth party who,gets to decide if the use of your privacy is worth in their pocket.)did the consitution give us any right against corp designed apps to demand use of our privacy for something of trivial use? (the court would be better off on such questions )is this the same subject as today? seems the people are well aware of who they vote for,er,hire. or are they? does ones party affiliation and the probability of who and how they stand when they check the box,by others (like polls)who possibly know,or want to beleive how you think. the lack of privacy has made this the new norm. if the supreme court changed its mind on settled law, did we know they would? their private lives were all too see(a stepford wife,a drunk,and a human waste) in any debate before the vote by those we,,, elected. obviously,we have a intimate knowlege of who the elected are,or do we? the fat chance manchin would vote for the latest protection for women and the working class,wasnt even a guess. if the west virginans cant see their shadow in the water,then maybe its because they dont see their privacy as a paramount importance,and would rather flow with the sewage we see is the latests politicians policy against the working class. privacy,is priceless. social media and wannabe minds have distroyed it.
    if the parties who rule didnt know how we freely give away our feeling about subjects,then maybe a party would be elected by us, who knowingly support the class that does the work,and only asks for a living wage and freedom to live as we need.. that was never a consitutional right. self determination be damn today. we lost that when we lost our privacy..

  10. Shiela’s argument today, as usual, enlightening and further informs my understanding in light of so many issues igniting headlines on fire. Yesterday, I wrote to Senator Young my views on his opposition to the proposed Disinformation Board proposed by the Biden Administration. I agree it is poor branding and ill advised moniker. The function of a democracy thrives on the education of its people with adherence to evidence of truth. Senator Young invoked violation of one’s civil rights as reasoning to oppose the ‘Disinformation Board’. My view is the freedom of speech implied by protecting civil rights is not infringed by holding one’s opinion presented as fact and truth to a recognized standard of responsibility and accountability to substantiated evidence. This is why I read Sheila’s daily column. I have trust in her sources often annotated to support an informed opinion. I am a better citizen for it.

  11. Norris; Young is protecting the freedom of speech which covers Trump’s “Big Lie” which the Republican MAGA party has as it’s campaign foundation. What would call or name a Board which requires our elected officials, including/especially, the President of the United States of America to tell the truth?

  12. JoAnn, I read your posts and generally regard you as an informed citizen. You asked what would I call as the brand name for a government sanctioned commission to be a source of evidenced based truth. During my tenure in Hollywood, I was asked to accept appointment as Chair of the Hollywood Crime Commission. It was a private sector group appointed by the Chamber of Commerce. I responded to the key leadership I would be willing to serve as long as the name of the group was changed from Crime to Public Safety. Deal. Three years later we reduced major index crimes in Hollywood by 18% measured by state and federal crime statistics. Branding is one element to channel people’s mindset to desired outcomes. I do not have an informed opinion as to an alternate name for the ‘Disinformation Board’. However, the initiative is so important, I would recommend that the Biden Administration retain independent public affairs/marketing counsel to research and come up with a total branding and collateral marketing guidebook to consistently inform citizens of its aims and integrity of substantiated evidence to which it subscribes. Is this more helpful?

  13. Why is the Trump Court trying to redefine the country? What is their motivation? Who is behind them? Why is John Roberts allowing it to happen? There are many questions without answers especially once you expand those questions into the other branches of government.

    Obviously the most direct answer is that this is what we, the people want. If that is true though, I believe, that does not lead to the root cause, what causes that cause? What are the underlying causes?

    What brought about such a massive change in the national personality? Is it merely the progress (read comfort) that we have all benefited from over the lifetimes of we who are now the most experienced people on the planet? Perhaps we see it best having been part of what was formerly the national personality.

    I typically hate conspiracy theories but perhaps under conditions like this guessing is the best we can do. After all we have to hypothesize to know what to research as a possibility to prove or disprove by measurement of reality.

  14. Hamilton and others wisely felt that there would be other “rights” of citizens in the future not covered by the Constitution or the First Ten Amendments, so they added this catchall to cover such future likelihoods. I also detect a whiff of that thinking in the 10th Amendment. The question is what power since Marbury do we judicially hook such references to future rights not enumerated in the founding documents, which does not contain the word privacy, but which by any fair reading and in the context of the then times amounts to an implied power.

    I feel sure the Founders who were trying to construct a centerpiece of organic law for the new nation intended to give its successor citizens an instrument that covered all the bases without (at the time) knowing what all the bases were, hence the need to show some flexibility in allowing us to decide what they meant in the 1791 Bill of Rights.

    I think abortion as the choice of women is one of those unenumerated rights Hamilton did not specifically have in mind but that as a matter of the implied right of privacy it is their choice, and that the government is constitutionally prevented from interference in such choice.

  15. Terry,

    What resources do I need to read when Russian diplomats warn about their options if expanding NATO includes Sweden and Finland?

    Putin began this security detail because wanted to add more military bases along Russia’s borders and now within a couple of months, we are seeing NATO double its reach along their borders.

    Not to mention $40 billion in cash to buy more weapons in Ukraine. I don’t need a “doomsday clock” to see where this is heading.

    This is just Europe. Wait until China enters the fray even more than it has to date. Even the so-called US progressives folded their cards.

    As for privacy, stay off the computer and phone, give up your TVs, and go live on a commune with anarchists. 😉

  16. The problem with the SCT making up an undefined “right of privacy” is under what circumstances do you apply it? It becomes a free floating policy tool that courts, acting as min-legislators, can apply whenever they want. That’s great when it advances a policy you want, not so good when it’s a policy you don’t want.

    Examples: What about a person smoking crack cocaine in his own home? You could say the right to privacy invalidates any laws making that illegal. What about a right to privacy to punish your children as you see fit, without the state interfering? What about a right of an employer to enter into a contract to pay an employee $6.00 an hour, below minimum wage. If both parties agree, what business of government to interfere with our privacy regarding contractual relations?

    Bottom line is that liberals like the undefined “right to privacy” when federal judges are using it to advance policies they like, but the minute conservative judges start using it to advance conservative polices, they won’t like it. That day is coming.

  17. The fact remains, as Sheila alluded to, we all have the right to privacy which is well covered under self-determination as written in our bill of rights!

    Self-determination and the rite to privacy are just as much a civil and Human right as the fourth amendment illegal search and seizure laws.

    These Bill of Rights or constitutional protections, allow us to live as, “free moral agents!”

    Sorry about the mistakes, I’m still getting my feet back under me from our extensive road trip, lol! The smokeies are beautiful this time of year, and the Blue ridge mountains are even more so.

    Unfortunately many of the justices are Catholic, which believe in predestination, in other words, everything that is happening was destined to happen by some predetermined timeline that is put in place by God!

    They claim an attempt to include free will in their predestination but it’s like pounding a square peg into a round hole. So, as God’s warriors, they are preordained by predestination to bring about God’s plan.

    So, really, we are under the control of ancient Greek and Roman mythology! Predestiny and pre-ordination we’re not part of early Christian teachings, but, Augustine changed all that!

    Augustine or as we know him St. Augustine, was the driver to bring these beliefs into the Catholic Church! So, there you have it! Prior to Augustine, the church leadership such as Justin, Origen, and Irenaeus, claimed they knew nothing of unconditional predestination or preordination. And, they did not teach it! But they did teach, “the autonomy of man and the council of God who constraineth not.” In other words, free will!

    This is why there is supposed to be a “separation of church and state”, because you cannot have religious zealotry infiltrate secular government!

    Preordination and predestiny have always been used by men to whip up zealot driven frenzy to get men to sacrifice their treasure and lives to bring about God’s will!

    Men will fight harder and take insane risks because if it’s not their time, they will not die! Or, if they do die, their treasures in heaven will be unlimited because the gratitude of God is limitless!

    Unfortunately, these made up Dogma were much easier promote when reading the Bible could bring about a person’s torture and death.

    Because, just as the Rapture, Preordination and/or Predestiny is not a scriptural tenet.

    It’s Greek and Roman mythology promoted by philosophical houses and philosophical teachers. And, adopted by emperor Constantine and his chosen at the Nicene council in 325 AD. As official Dogma for the Roman church or Roman Catholic Church!!!

  18. Terry, if you like facts, I’d like you to find some that indicate that Biden has brought us WWIII. Facts, not material that might confirm your obvious bias, that is.

    The Ninth Amendment is of major importance, in refuting Alitos spurious claims, though I doubt that he’d be interested in it. He appears to have gone to great lengths to find tangential bits of garbage to support his point of view that the U.S. and the Taliban are long lost brothers.
    I have said it before, and I think it is worth repeating:”If you want to see what a theocracy looks like, look at Iran.” Is it Pakistan, in which, if one is of the “wrong” religion, one had better not draw water from a community well.

    John Adams was perfectly clear when as president, he signed the famous Treaty of Tripoli, which boldly stated,

    “[T]he government of the United States of America is not in any sense founded on the Christian Religion….”

    But, as was the case in the First Council of Nicea, anything that contravenes, or brings doubt to the agenda, must be ignored, or outlawed!!

  19. On a lighter note, F. Scott Fitzgerald wrote: “So, with one hand on the Eighteenth Amendment and the other hand on the serious part of the Constitution, I have taken an oath that I will tell somebody my story.” Fitzgerald, “What I Think and Feel at 25,” American Magazine, Sept. 1922.

  20. Mitch,

    Words matter, and unfortunately lies are made up of words, so are deceptive practices!

    The public is led around by the nose because of government created boogeymen 🤫 Ronald Reagan destroyed the social safety net by looting the social security trust fund, and then promoted drug trafficking so the money could be used for Iran contra! He absolutely should have been impeached for what he did. He governed by the stars with his wife’s astrology, so, paganistic mystic practices controlled the white house! And yet, He is, or at least was, the great white Hope for the right! Russia, such a tremendous powerhouse, but they can’t defeat a much smaller country, the Ukraine. Saddam Hussein’s Iraq and the Ayatollahs of Iran beat each other to a pulp for a decade! Iraq was supposed to have a million and a half Man army, and thousands of tanks, hundreds of fighter jets, Iran had all the Shah of Iran’s military equipment when they ran him out of dodge. Then American and allied forces went in to Kuwait and later on iraq, they made mincemeat out of saddam’s Iraqi Military! Russia is no different. The only thing that Russia has, nuclear weapons! Do you think the Russian generals have a suicide wish? They all have families, and I don’t think they’re going to push the button. If a Vladimir Putin gave that order, you best believe he would be taken out by his own people.

    So, yeah, words matter, but, can you believe any of them🤔? Nope👎

  21. Paul – All your examples involve crimes. Abortion (to date) is not a crime..

  22. Gerald; thank you! You took the words out of my mouth; or rather, the thoughts out of my head before I could type them. Paul is never more Republican than when he is trying to bypass the heart of the issue and force a square peg into a round hole.

  23. Someone once famously said that his right to swing his fist about ends just shy of the tip of the other guy’s nose. That same logic applies to women who claim “choice” as among their “rights”. Aptly so, with one important caveat. If by “choice” the choosing woman speaks of food to be consumed at lunch, the precise route she selects to a location, the brand of car she buys, whether she munches on milk chocolate or dark chocolate, all well and good. These choices involve only her. But if she “chooses” death for a human being in her womb, she oversteps. She may not choose death for another human except action memorialized in law, triggered by an emergency situation where the life of the mother is imminently imperiled. Is a single fertilized cell a human being? No. Is a baby about to be born a human being? Yes. Somewhere between those two end points the “procedure” becomes murder. It is at that point that her swinging fist extends too far and intrudes into “the other guy’s” (her child’s) space. Her most effective exercise of her “right to choose” occurred when she elected to have, or not have, sexual intercourse.

    And, to the rejoinders who will cite rape, incest, tubal pregnancies, or insemination by aliens from Planet Mongo, there are procedures that can be invoked well before the mass of tissue becomes human; or the “morning-after” pill can be dispensed.

    If the State has any legitimate function at all, it is to protect the most innocent and defenseless among us. Surely a child in his mother’s womb is among these.

  24. Paul- As the Professor often tells us, our rights end where others begin. The last time I checked, a child has no less a right to protection from physical/mental abuse than an adult. The relationship is clearly one-sided one as far as decision and control of power is concerned. The fact that you would use such an example of “privacy” is unsettling and a little shocking.

  25. Peggy – those five Justices do know the constitution. Their Constitutional Law professor was Humpty Dumpty –

    “When I use a word, it means just what I choose it to mean — neither more nor less.”

    Either him or Mitch McConnell.

    Thank you for the post today, Sheila. It lays out the facts very well.

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