Study Guide

Right to Privacy

Right to Privacy Introduction

  • 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.

What is Right to Privacy About and 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.

Right to Privacy Trivia

As late as the mid-1980s, all women arrested in Chicago, even for minor offenses like unpaid parking tickets, were strip-searched. Men that were arrested were subjected only to a pat-down search.

The courts have repeatedly held that women's privacy rights trump almost all claims made by potential fathers regarding the decision to continue or terminate a pregnancy. But in 1993, the Tennessee Supreme Court ruled that potential fathers have an equal interest in the disposition of frozen "pre-embryos"—the two-to-eight cell inseminated eggs that have been stored for future use.

Right to Privacy Resources

Books

Ellen Alderman and Caroline Kennedy, The Right to Privacy (1995)
In this interesting and highly readable survey, the authors trace the evolution of privacy law through a series of compelling narratives and case histories. It is written for a general audience; those looking for deep analysis of the legal and philosophical questions surrounding these issues will be disappointed. But for the student or general reader interested in an introduction to a wide range of privacy issues, this is a great place to start.

Ellen Frankel Paul, Fred D. Miller, and Jeffrey Paul, eds., Social Philosophy and Public Policy: The Right to Privacy (2000)
If you really want to sink your teeth in the philosophical and legal questions surrounding privacy rights, this collection of essays will provide you with a comprehensive introduction. The essays, written by philosophers, historians, and legal scholars, are not easy reading. But if you come to grips with the issues presented here, you will be able to take all comers.

Images

Griswold v. Connecticut
Estelle Griswold, Executive Director of the Planned Parenthood League of Connecticut, challenged the state's anti-contraception law in 1965.

Jane Roe
Norma McCorvey, aka "Jane Roe" of Roe v. Wade.

A Twelve-Year-Old's Day in Court
The Supreme Court heard James Acton's challenge to his school's drug testing policy in Acton v. Vernonia School District.

"The right to be let alone"
Lois Brandeis, Supreme Court Justice whose 1890 article shaped the modern theory of privacy rights.

William O. Douglas
Supreme Court Justice William Douglas wrote the Court's opinion in Griswold v. Connecticut identifying extensive privacy rights under the Constitution.

Movies & TV

Absence of Malice (1981)
Paul Newman and Sally Fields star in this film about privacy rights and the press. The film is not interested in a balanced assessment of conflicting rights; instead it accentuates the sorts of concerns that led to Louis Brandeis's seminal article on privacy almost a century earlier.

Roe v. Wade (1989)
This film was made for television—and you can tell. Its treatment of a young woman's challenge to Texas's abortion laws can be cheesy. But the film's review of the legal issues surrounding the case is careful and fairly balanced.

Websites

Annotated Constitution
The Legal Information Institute of Cornell University Law School hosts the Congressional Research Service's Annotated Constitution, a highly useful source for studying the Constitution. Privacy rights are discussed in several sections; you might begin with the introduction linked here.

Supreme Court Cases
Oyez, a searchable database of United States Supreme Court cases, is an excellent source for studying American legal history. The site provides efficient case summaries, audio files of the oral arguments, and links to written opinions.

Primary Sources

The Right to Privacy
Many legal scholars contend that the contemporary understanding of privacy rights began with this 1890 article by Samuel Warren and Louis Brandeis.

Supreme Court Cases
Oyez, a searchable database of United States Supreme Court cases, provides audio files of the oral arguments and links to written opinions.