Privacy, Theories of

The right of privacy is identified as the underpinning for a number of rights recognized under the Constitution in Supreme Court decisions. Grounded at least in part on a right to privacy, various cases have recognized the rights of a person

to be free from unjustified governmental intrusions into house, papers, and effects, and unreasonable searches and seizures

not to be a witness against oneself

not to be deprived of life or liberty without due process of law

not to be deprived of the privileges and immunities of the citizens of the states or the United States

not to be required to quarter troops without consent

to associate freely

to speak one’s views

to have access

to contraceptives

to decide whether

to have an abortion

to choose intimate partners and to raise one’s children

to control the use of one’s name or likeness

to decline life-sustaining medical treatment when one is terminally ill

to pursue seclusion free from intrusion

Because the panoply of privacy rights derives from or affirms different interests, commentators debate whether privacy describes a disparate and unrelated collection of individual rights or whether the concept is amenable to a coherent, unifying rationale.

Rights recognized under the privacy rubric have their roots in ancient principles, natural law, the common law, modern popular expectations, evolving international social norms, historical understandings of the Constitution, and principles derived from practical human experience. Some of the privacy rights reflect interests in physical or spatial privacy—for example, the right to be free from governmental intrusions into one’s home. Others reflect an interest in informational privacy—in being able to keep private information that a person does not want the government or others to know. A corollary to this notion is the interest in being able to project only the information one wishes others to know—to control what image others might form. Control over information also denotes a proprietary interest in the material.

Still other privacy rights reflect an interest in decisional autonomy—the right of access to contraceptives, to decide whether to have an abortion, to decline life-sustaining medical treatment, and to choose intimate partners. The rights to choose one’s associates, to use contraceptives, and to speak also affirm personal autonomy and personhood. Some of these privacy rights derive from more than one of the sets of interests. For example, physical privacy is essential to having a meaningful right to exercise the decisional autonomy to choose intimate partners.

Some interests protected under the privacy rubric flow from the notion that the person or individual has the right to be protected from actions or requirements imposed by external sources such as government or social norms. This aspect of privacy can be viewed as ‘‘inward looking’’ and examples include the interests in physical privacy and decisional autonomy. This notion stands in contrast to the other aspect of privacy, which seeks to protect the individual’s right to control his or her interaction or projection on the public from an ‘‘outward-looking’’ perspective. Freedom in choosing one’s associates and controlling the dissemination of information about oneself reflects this outward-looking perspective. The right to bear and raise one’s children reflects the outward and inward dimensions of the right to privacy.

All of these theories assume that it is possible or desirable to distinguish those aspects or activities of human existence that are inherently ‘‘private’’ from the pursuits that take place in the ‘‘public’’ or social sphere. As noted, some activities or aspects of ‘‘privacy’’ operate in the public and the private spheres. Historically, privacy has been the rationale for the law’s failure to protect the rights of women and others viewed as acting entirely within the ‘‘private’’ sphere.

The seminal attempt to establish a theoretical basis for recognizing privacy right in U.S. law is the Warren and Brandeis article published in 1890 in the Harvard Law Review. The authors described the interests to be protected by recognizing a right of privacy as the ‘‘right to be let alone’’ and suggested that privacy protected an individual’s ‘‘inviolate personality.’’ These rationales derive from notions of conventional morality and natural law philosophy and seek to employ the law in affirming the human dignity of the individual.

Recognition of tort protection for violations of various interests in privacy was one explicit goal of the Warren and Brandeis article. The availability of statutory or common law tort claims for certain invasions of privacy does not resolve the question of whether certain inalienable, fundamental rights of privacy that merit constitutional protection exist.

The Supreme Court has employed a number of theories and interpretive tools to justify the privacy rights it has identified in various contexts. To some extent the persuasiveness of the theories has depended upon the nature of direct textual support in the Constitution for the interest in question. While it is possible to debate whether Fourth Amendment protection exists from government physical searches of a person’s home in a particular factual circumstance, no one doubts that there is clear textual support for such a right in the Constitution. When there is such specific textual support for the privacy right in question, then the theoretical rationale for protecting the interest, while not irrelevant, becomes less important.

Interpretive questions become more difficult and the theoretical justifications become more salient when the Court seeks to apply less specific rights, such as the liberty interests protected in the due process clauses of the Fifth and Fourteenth Amendments. Finding the reach of the associational interests protected in the First Amendment poses similar analytical challenges. In Griswold v. Connecticut, 381 U.S. 479 (1965), Justice Goldberg’s opinion sought justification for such extrapolations in the Ninth Amendment’s recognition that the Constitution protects other fundamental rights even though not specifically enumerated in the Bill of Rights. At the very least, the Ninth Amendment provides a useful rule of construction even if it does not operate independently as a source of specific rights.

RENE´E M. LANDERS

References and Further Reading

• Chemerinsky, Erwin. Constitutional Law: Principles and Policies, 2nd ed. New York: Aspen, 2002, 534–535, 808–810, 946–950.
• Tribe, Laurence H. American Constitutional Law, 2nd ed. Mineola, NY: Foundation Press, 1988, 774–780, 1302–1435.
• Turkington, Richard C., and Allen, Anita L. Privacy Law: Cases and Materials, 2nd ed., St. Paul, MN: West, 2002, 1–76, 722–959.

See also Abortion; Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983); Birth Control; Bowers v. Hardwick, 478 U.S. 186 (1986); Brandeis, Louis Dembitz; Chemerinsky, Erwin; Cruzan v. Missouri, 497 U.S. 261 (1990); Due Process of Law (V and XIV); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965); Harris v. McRae, 448 U.S. 297 (1980); Lawrence v. Texas, 539 U.S. 558 (2003); Moore v. East Cleveland, 431 U.S. 494 (1977); Ninth Amendment; Olmstead v. United States, 277 U.S. 438 (1928); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992); Privacy; Right of Privacy; Skinner v. Oklahoma, 316 U.S. 535 (1942); Sodomy Laws; Stenberg v. Carhart, 530 U.S. 914 (2000); Substantive Due Process; Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); Washington v. Glucksberg, 521 U.S. 702 (1997); Webster v. Reproductive Health Services, 492 U.S. 490, (1989)