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Right to Privacy Introduction

In a Nutshell

  • The Constitution contains no reference to any "right to privacy"
  • However, over more than 100 years, courts have found a fundamental (but somewhat vague) right to privacy implicit in the Constitution
  • Many "right to privacy" cases deal with sex, sexuality, or abortion, and are thus quite controversial

The right to privacy is fundamental—almost intuitive—to most Americans, and over the past century, the courts have defined an extensive body of protections for it. Under statutory and common law individuals can sue others for an assortment of personal privacy violations. And within the Constitution, the courts have found a set of rights guaranteeing us the freedom to marry who we want and raise our families as we want, as well as the freedom to make our own child-bearing decisions through ready access to contraceptives and abortions. Over the past century, the courts have concluded that the federal government has an obligation to defend our privacy rights against the states, and they have held that we are entitled to privacy protections wherever we believe we have a "reasonable expectation of privacy."

Americans' privacy rights are broadly defined, but they are also controversial. Privacy violation lawsuits are difficult to win, often because they involve conflicting rights under the law. The constitutional bases for privacy have been challenged by some legal scholars who argue that the Constitution's framers never intended to create such a large or vaguely defined set of protections. This argument reminds us that privacy rights are more heavily dependent on the courts than other rights more expressly defined in the Constitution.

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Why Should I Care?

Should the government be able to restrict who you can marry?
Should a person be allowed to use contraceptives?
Should women have access to abortions?
Should parents be permitted to have their child taught a foreign language?
Should school principals be allowed to strip-search students?
Should high school coaches be allowed to drug test their athletes?

The courts have found the answers to these questions in the Bill of Rights. They have found answers here, in the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

And here, in the Third Amendment: "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."

This clause in the Fourth Amendment has been crucial to the courts in sorting out these questions: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

This part of the Fifth Amendment has been important to the courts: "nor shall [any person] be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law."

The Ninth Amendment has also influenced the courts: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

And this clause in the Fourteenth Amendment has been critical: "nor shall any state deprive any person of life, liberty, or property, without due process of law."

Do you see it? Do you see the right to privacy contained within the Constitution? Can you figure out the logic of the courts in answering questions about marital choice, procreation decisions, and student searches?

Read on and you will.

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