Implied Privacy Rights in the Constitution

• Supreme Court has ruled that a fundamental right to privacy is implied in the Constitution
• Justice William Douglas wrote that a broad right to privacy could be found in the "penumbras" (shadows) of the expressed protections of the Bill of Rights
• Many privacy-rights cases have focused on issues of sex and sexuality; the Supreme Court has established its broadest privacy protections around the institution of marriage

In addition to the Constitution's expressed protections of certain aspects of privacy, the Supreme Court has also held that there are additional privacy rights implied within the Constitution. Since the early twentieth century, the Court has recognized certain zones of privacy that hover around the more precisely suggested guarantees within the Bill of Rights. In a series of cases that ranged from school choice to marital choice, from the right of married couples to decide what language to teach their children to their right to decide whether or not to use contraceptives, the Court has held that a fundamental and somewhat fluid right to privacy is protected under the Constitution.

Justice William Douglas made the argument most fully in 1965 in Griswold v. Connecticut, a case involving the state's ban on contraceptives. In determining that the ban violated a "right to marital privacy," Douglas argued that in addition to the expressed guarantees regarding privacy in the Constitution, there were many others contained within the "penumbras," or shadows, lying along the edges of the Bill of Rights. These penumbras were "formed by emanations from those guarantees that help give them life and substance." In other words, in addition to the sort of privacy rights expressly protected under First, Third, Fourth, Fifth Amendments, these amendments also established "zones of privacy" that the government was equally bound to protect.¹³

This understanding of privacy rights has been given broader application by the Court's conclusion that these rights are also a liberty claim. This means that privacy is one of those fundamental liberties guaranteed to us under the Fourteenth Amendment. The identification of privacy as a liberty claim has meant that the states, as well as the federal government, may not violate this more comprehensive understanding of privacy without violating the due process clause of the Fourteenth Amendment.