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.