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Understanding the Constitutional Right to Privacy in America

Updated on December 19, 2015
lawdoctorlee profile image

Ms.Treadwell is a licensed attorney and the author of "How Do Hurricane Katrina's Winds Blow: Racism in 21st Century New Orleans."

Source
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." -Ninth Amendment of the Constitution of the United States
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." -Ninth Amendment of the Constitution of the United States | Source

Most Americans understand our most basic, expressed constitutional rights as provided for and protected by the Bill of Rights in the Constitution of the United States. These individual liberties include, inter alia:

  • Right to peaceable assembly (First Amendment)
  • Free speech and the press (First Amendment)
  • Freedom of religion (First Amendment)
  • Right to bear arms (Second Amendment)
  • Right against unreasonable searches and seizures without probable cause (Fourth Amendment)
  • The rights of the accused in criminal proceedings (Fourth, Fifth, and Sixth Amendments)
  • The right to not be deprived of one's life, liberty, or property without due process (Fifth and Fourteenth Amendments)

Much controversy appears, however, with the concept of the right to privacy. Some argue there is none, since there is not an enumerated right to privacy in the Constitution; others argue that it does, indeed, exist: it is implied at the very least via the Fourth, Ninth, and Fourteenth Amendments. While we can debate the issue of whether or not the right to privacy should be implied at all by the Constitution is altogether different from the argument of what should or actually does fall (or may in the future) under the implication of privacy rights. In a nutshell, it can be understood in this way: although the word "privacy" is not expressly stated, the concepts of "liberty" and "equality" resonate throughout the Constitution and are expressly articulated. Those "liberties" cannot be denied by the government (state or federal) without Due Process of law.

One of the best explanations of the right to privacy and the constitutional penumbra that exists regarding privacy is articulated by Justice Goldberg in the case of Griswold v. Connecticut:

privacy is not only "sacred" but "the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights."

Liberties, undoubtedly, as the Court opined, are expressly protected by the Due Process Clause of the Fifth and Fourteenth Amendments.


Source

What is already decided as privacy right?

  • The rights of parents and teachers to decide what course of education is best for children including curriculum and private or public education. (Meyer v. State of Nebraska; Pierce v. Society of Sisters). Natural parents have a "fundamental liberty interest...in the care, custody, and management of their child" (Santosky v. Kramer).
  • Freedom to associate and privacy in one's associations, which is "an inseparable aspect of the "liberty" guarantee of the Constitution including those associations that "pertain to the social, legal, and economic benefit" of an individual. (NAACP v. Patterson; NAACP v. Button).
  • The right to marital privacy including the use of contraceptives to prevent procreation (Griswold v. Connecticut) with such rights extending to unmarried persons (Eisenstadt v. Baird). The right to the freedom of personal choice in matters of marriage and family life (Moore v. East Cleveland); Cleveland Board of Education v. LaFleur). The freedom to marry without racial classifications as a basis is one of the "vital personal rights...essential to the orderly pursuit of happiness by free men (Loving v. Virginia). The "human right...to have offspring" (Skinner v. Oklahoma ex rel. Williamson) but there is no fundamental or constitutional right to adopt children (Cornell University Law School).
  • Competent individuals have liberty interests under the Due Process Clause in the refusal of unwanted medical treatment including the "right to refuse lifesaving hydration and nutrition." But the state has regulatory power to prescribe health laws to protect the public health and welfare (i.e. vaccinations). (Jacobson v. Massachusetts); In re Storar; Cruzan v. Director MDH).
  • Liberty includes "the most private human conduct, [which is] sexual behavior [between consenting adults], and in the most private of places, the home." Furthermore, "individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of “liberty” protected by due process. " (Lawrence v. Texas).
  • In one's own home, the right to receive information, "regardless of its social worth" including obscenity, and to personal privacy (Stanley v. Georgia).
  • The right to privacy, including a woman's qualified right to terminate her pregnancy before viability. (Roe v. Wade; Planned Parenthood of Southeastern Pa. v. Casey).

Decisions by Supreme Court of the United States Re: Right to Privacy

Case*
Supreme Court of the United States**
Votes in Favor of Privacy Interests
Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974).
Burger Court
7-2
Cruzan v. Director, MDH, 497 U.S. 261 (1990).
Rehnquist Court
5-4
Griswold v. Connecticut, 381 U.S. 479 (1965).
Warren Court
7-2
Lawrence v. Texas, 539 U.S. 558 (2003).
Rehnquist Court
6-3
Loving v. Virginia, 388 U.S. 1 (1967).
Warren Court
9-0
Meyer v. State of Nebraska, 262 U.S. 390 (1923).
Taft Court
7-2
NAACP v. Button,371 U.S. 415 (1963).
Warren Court
6-3
NAACP v. Patterson, 357 U.S. 449 (1958).
Warren Court
9-0
Pierce v. Society of Sisters, 268 U.S. 510 (1925).
Taft Court
9-0
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).
Rehnquist Court
5-4
Roe v. Wade, 410 U.S. 113 (1973).
Burger Court
7-2
Santosky v. Kramer, 455 U.S. 745 (1982).
Burger Court
5-4
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).
Stone Court
9-0
Stanley v. Georgia, 394 U.S. 557 (1969).
Warren Court
9-0
* The cases are listed in alphabetical order. ** The name of the Chief Justice of the Supreme Court is used to describe the Court. (i.e. today's Court would be identified as the "Roberts Court" because John Roberts is Chief Justice).

What is left to decide under the right of privacy?

The fight for the right to privacy always has surrounding controversy: interracial marriage, abortion (right to life), possession of adult pornography, refusal of lifesaving medical treatment (right to die), etc., as is evident from the previous examples. As controversial as the issues have been, the Supreme Court of the United States has been consistent in understanding those issues as private matters under the liberty interests protected by the Constitution. There is no political agenda since these cases were brought before even the most conservative of Supreme Court justices, who although dissenting opinions were authored in these cases, the Court still voted in favor of the privacy interests.

The latest controversy involves gay marriage. In April 2015, the Court will hear four major cases listed as Obergefell, et al v. Hodges. The other three cases included are: Tanco v. Haslam, DeBoer v. Snyder, and Bourke v. Beshear. The case involves the laws which ban same-sex marriage or the states' refusal to recognize legal same-sex marriages that occurred in jurisdictions of the following states: Ohio, Michigan, Kentucky, and Tennessee. The plaintiffs in the case argue violations of the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment. We can expect a decision in June.

The founding fathers did not outlaw gay marriage neither did they sanction it. It was a non-issue in the creation of the United States. In fact, outlawing gay marriage is a relatively modern construct. A detailed description of the history of sodomy laws in America can be found in the case Lawrence v. Texas. Only in the mid-20th Century did the practice of homosexuality become outlawed. As the case of Lawrence provides, the state has no right to regulate the sexual relations between consenting adults in the privacy of their home; so any laws that prohibit such behavior are unconstitutional and void.

States have the right to regulate marriage and other various authority but that is not unlimited power. The powers granted by the Tenth Amendment are restricted by the Fourteenth Amendment, specifically:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Therein lies the implied right to privacy vis-à-vis "liberty."

We know that it is not up to the federal government to regulate marriage; it never did before the passage of the Defense of Marriage Act (DOMA) in 1996. The authority to regulate marriage is the realm of the individual states. Hence, the Supreme Court found the Defense of Marriage Act (DOMA) unconstitutional since it barred same-sex married couples from being recognized as "spouses" for purposes of federal laws (United States v. Windsor, Executor of the Estate of Spyer).

When the Supreme Court agreed to hear Obergefell, 36 states already legalized same-sex marriage. The significance of any state or a multitude of states passing laws that make same-sex marriage legal is that states also have the constitutional obligation to give "full faith and credit...to the public acts, records, and judicial proceedings of every other state." (U.S. Const., Art. IV, Sec. 1). Furthermore, all American citizens are "entitled to all privileges and immunities of citizens in the several states" (U.S. Const., Art. IV, Sec. 2). Marriage falls under this category. Therefore, it can be argued that although a state may outlaw same-sex marriage, the same state has a constitutional obligation to recognize the legal marriage of a couple from outside its boundaries should the couple decide to reside in the state. Certainly, we all have the liberty to move into whatever state we choose.

Marriage is a fundamental constitutional right as are sexual relations between consenting adults. A person is a person. We all have the right to create a family. Creating a family does not mean that you must procreate children; you may choose not to do so. That is your constitutional right. When states intervene in those rights that are determined to be fundamental, the state is subject to strict scrutiny by the courts and has the burden to prove such legislation is necessary "to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest. (University of Missouri Kansas City).

Update on the issue of same-sex marriage:

On June 26, 2015, The Supreme Court of the United States, in a historic decision, ruled 5-4 that the fundamental right to marry extends to same-sex couples. Justice Kennedy delivered the majority opinion joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The Court found that the state bans were in violation of Due Process and Equal Protection within the Fourteenth Amendment. Obergefell v. Hodges, 576 U.S. ___ (2015).

Thomas Paine - Author of Common Sense, The Rights of Man, and The Age of Reason

"He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself."  - Thomas Paine
"He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself." - Thomas Paine | Source

Contextualizing the Right to Privacy

Throughout American history, the Constitution of the United States has been amended by Congress and interpreted by the judiciary to evolve with changing times and the needs of American citizens. This is not a novel concept but a deliberate calculation by the founding fathers of the nation to create a "republican form of government" (U.S. Const., Art. IV, Sec. 4) wherein there is a separation of powers between the three branches of government (U.S. Const., Art. 1, Art., 2, and Art. 3.) a provision for individual state's rights (Tenth Amendment), and broadness of "other [rights] retained by the people" (Ninth Amendment).

Most arguments regarding privacy issues are rooted in either religious or ancient moral traditions. It is critical to understand that we must look to the history of our own nation, which is not ancient nor is it a nation governed by religious doctrine. It is a nation governed by the rule of law not individual morality. In the history of governments, the American republic is relatively new and, as so constructed by our founding fathers, there is "an obligation (via the judicial branch) to define the liberty of all, not to mandate its own moral code." (Lawrence v. Texas).

It cannot be denied that there is a significant body of American law (statutory and case law) that exists to demonstrate that Americans do have a right to privacy on a variety of issues including marriage, child rearing (including education), procreation, sexual relations, establishing a home and family, contracting, employment, and religion "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." (Meyer v. State of Nebraska). (Italics added.).

It is important to understand that the concept of what constitutes a matter of privacy is not dictated by the democratic majority or the overall moral determinations of the people as a whole, but, rather, as stated in the Meyer case and others like it, "according to the dictates of [one's] own conscience." It can, therefore, be argued that "the dictates of [one's] conscience," one's personal thoughts, morals, and values, is, in fact, the epitome of privacy to which no one has the right upon which to trample nor devalue nor treat unequally under the rule of law. The essence of a human being is his or her own autonomy, human dignity, and self-determination and to act or deny any action accordingly. To impose on the human autonomy of another is to be tyrannical. This is why the American republic is based on the rule of law not religious morality or majority rule: to avoid tyranny. Justice Kennedy, specifically, emphasized this and supported this premise in Lawrence:

"the fact that a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting [a] practice." (Italics added.).

Thomas Jefferson, in Query XVII of Notes on the State of Virginia, stated:

"The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg."

The right of individual's private matters should not be abridged by government unless they impose on another's individual's privacy or welfare. It does not injure me for someone to love another, to have a child or not. Another's private thoughts do not infringe upon my own. The greatest blessing is to love and be loved. People have the right to make their own choices about the direction of their life. They alone are entitled to reap the benefits of those decisions

Special thanks to Daniel Bassilios for inspiring this hub.

This hub is dedicated to "Roxi."

In your opinion

What issue does not rise to the level of a privacy/liberty interest under the Constitution?

See results

Works Cited

Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974).

Constitution of the United States of America (1787).

Cornell University Law School. "Adoption." 2015. http://www.law.cornell.edu/wex/adoption. Access date: February 12, 2015.

Cruzan v. Director, MDH, 497 U.S. 261 (1990).

Griswold v. Connecticut, 381 U.S. 479 (1965).

In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64 cert. denied, 454 U.S. 858 (1981).

Jefferson, Thomas. Query XVII of of Notes on the State of Virginia. (1781).

Jacobson v. Massachusetts, 197 U.S. 11 (1905).

Lawrence v. Texas, 539 U.S. 558 (2003).

Loving v. Virginia, 388 U.S. 1 (1967).

Meyer v. State of Nebraska, 262 U.S. 390 (1923).

Moore v. East Cleveland, 431 U.S. 494 (1977).

NAACP v. Button,371 U.S. 415 (1963).

NAACP v. Patterson, 357 U.S. 449 (1958).

Obergefell v. Hodges, 576 U.S. ___ (2015).

Pierce v. Society of Sisters, 268 U.S. 510 (1925).

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).

Roe v. Wade, 410 U.S. 113 (1973).

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).

Stanley v. Georgia, 394 U.S. 557 (1969).

United States v. Windsor, Executor of the Estate of Spyer, et al., 570 U. S. ____ (2013).

University of Missouri Kansas City. "Levels of Scrutiny Under the Equal Protection Clause." Exploring Constitutional Conflicts. 2001-2011. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm. Access date: February 12, 2015.


Disclaimer: This article is for general informational purposes only and is not to be used or interpreted as legal advice. If you have a legal issue, seek out the services of a licensed attorney.

This was originally written and published on February 12, 2015. Latest corrections or edits were made on December 19, 2015.

By Liza Lugo, J.D.

(c) 2015. All Rights Reserved.

Ms. Lugo retains exclusive copyright and publishing rights to all of her articles and photos by her located on Hub Pages. Portions of articles or entire content of any of these articles may not be used without the author's express written consent. Persons plagiarizing or using content without authorization may be subject to legal action. The articles by Ms. Lugo regarding legal issues are purely academic in nature and do not constitute legal advice. For advice on legal matters, consult a licensed attorney in your jurisdiction.

Permission requests may be submitted to liza@lizalugojd.com

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    • lawdoctorlee profile image
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      Liza Treadwell Esq aka Liza Lugo JD 2 years ago from New York, NY

      Bill, thanks for taking time to read this one and for your comment. Glad you found it "fascinating." I wasn't totally sure of where this would lead me but I've been wanting to do some work on the overall concept of the right to privacy for a long time. This seemed incomplete without discussing gay rights. A recent Q & A sewed up the idea for me.

      When it comes to homeland security issues, it's a different discussion, which is why I don't include it in this hub. You see, individual rights, although granted by the Constitution, are not absolute. That is why I mention the judicial review of "strict scrutiny" here in this hub. When we talk about homeland security, in the context of the courts, the trump card for the government is always "national security"; and the courts are reluctant to hear such arguments because political policy is generally deferred to the executive or legislative branch. It is not the realm of the judiciary to address political decisions. Individual rights come second to the notion of "national security" issues (See Korematsu v. United States, 323 U.S. 214 (1944). That is reserved for another article.

      The Supreme Court of the United States will address the issue of gay marriage in April. We'll see if I called it right - I don't see a legal argument that would allow the ban to survive.

      Wishing you and yours many blessings.

    • billybuc profile image

      Bill Holland 2 years ago from Olympia, WA

      Liza, as always, a fascinating read. When I first saw the title I thought we would be discussing Homeland Security and how they affect our right to privacy. Perhaps another article soon. As for gay marriage, I don't see how the Supreme Court can wiggle out of this issue much longer. I'm hoping they will rule on it once and for all soon.

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 2 years ago from New York, NY

      HSchneider, thank you so much for spending part of your day with me by reading this hub and taking the time to comment. I, too, feel it is a no brainer to equate liberty with privacy within the context of the Constitution.

      It is my opinion that the Supreme Court of the United States will have no other alternative but to determine that gay marriage is protected under the Fourteenth Amendment. There is no legal reason to decide otherwise.

      Thanks for participating in the poll. May you and yours always be blessed.

    • profile image

      Howard Schneider 2 years ago from Parsippany, New Jersey

      You have given a thorough and detailed explanation for the nature of the implied right to privacy. Indeed it is not explicitly written in the Constitution but it is a no brainer to extrapolate it from the Amendments you cite. I voted for all of the above in your poll. I believe that the Fourteenth Amendment's equal protection and due process clauses will prove to be the main grounds where the Supreme Court will declare Gay Marriage to be a right of homosexuals equally to heterosexuals. I agree and concur with this view. Excellent Hub and analysis, Liza.