Strict Constructionism and Privacy
- Conservative legal scholars have challenged the implied existence of privacy rights within "penumbras" of the Bill of Rights
- Strict constructionists argue against any broad interpretation of the language of the Constitution; if a right is not enumerated explicitly in the Bill of Rights, it does not exist
- If there is no right to privacy, then there is no reason why the government shouldn't pass laws regulating sex, sexuality, reproduction, or abortion
We explore the development and application of this interpretation of a constitutionally protected privacy right in Story 3. But before turning to these stories we should point out that some legal scholars have argued that there is no privacy right in the Constitution—that its elaboration offers an example of judicial activism or judicial legislation at its worst. These scholars insist that the First Amendment protects a right to the "free exercise of religion," not a right to "privacy of belief," and the Fourth Amendment protects us from specific forms of government intrusion, not encroachments on any form of privacy that we might reasonably expect.
Robert Bork, one of the most prominent critics of a constitutional right to privacy, has suggested that Justice Douglas's penumbras are exactly that, shadows without substance, and that the Court's most controversial applications of this theory of privacy have taken control over certain decisions away from the state legislatures that the Constitution intended to empower. "The Constitution has nothing in it that would prevent a state . . . from allowing abortion or from . . . disallowing abortion," Bork argues. "Those are topics simply not addressed by the Constitution. The Constitution assumes that most of our laws will be made by the moral choice of the American people acting through their legislatures. The Constitution isn't the only law that exists. It's only a framework for how we go about things and a list of specific things legislatures must not do. Beyond that, it's up to the legislature."14
Bork's critics argue that the Constitution must be flexible if it is to survive, and the courts must possess the latitude needed to apply the Constitution's principles to changing needs and circumstances. Bork claims to agree with this, but he argues that in this area of privacy law, the Court has invented a new principle, not just applied an established one to new conditions.
As you read through the stories you might consider where you stand. Is there a constitutional right to privacy? If so, what are its limits? Do the expressed protections of the Bill of Rights possess penumbras? What do you think?
Or is all this no one's business but your own?