Right of Privacy

In 1965, in the landmark case, Griswold v. Connecticut, the U.S. Supreme Court, for the first time in the nation’s history, firmly established the right of privacy as a fundamental constitutional right. Although a majority of justices could agree that the Constitution protected this right as fundamental (six to three), a majority could not agree on exactly where the Constitution did so guarantee. Thus, one justice argued a ‘‘penumbra’’ of the Bill of Rights as a source; three would cite the Ninth Amendment as affording such protection, while two others would cite to the Due Process clause of the Fourteenth Amendment. The fact that the Court could agree that there was such a right, but could not agree on where it came from, underscores the continuing controversy surrounding the decision and the right of privacy. Should the Supreme Court create ‘‘unarticulated’’ constitutional rights?

The Court appeared to resolve the issue as to the constitutional source in another landmark decision, Roe v. Wade (1973), by concluding that the right of privacy was ‘‘founded in the Fourteenth Amendment’s concept of personal liberty,’’ or ‘‘substantive due process.’’ The Roe decision protecting a woman’s right of choice in regard to abortion, raised another and just as controversial issue. What privacy interests are so significant as to be deemed fundamental, and how should the Court go about making such a determination?

Unarticulated Constitutional Rights

The right of privacy rests at the root of a constitutional debate as to how a nonelected Supreme Court, enforcing the supremacy of the Constitution as fundamental law, should interpret the document in light of the framers intent and contemporary needs in a democratic society. Although most citizens today are well aware of the moral controversy extending from the abortion debate, very few are likely aware that among those who study the Court and the Constitution it is the issue of judicially created unarticulated constitutional rights that affords the greatest controversy. This has been emphasized in the contemporary Senate conformation process of Supreme Court nominees, where candidates views on the right of privacy have been center stage.

Offhand it might seem that the creation of unarticulated rights could only be beneficial in affording protection of individual rights via a living and contemporary Constitution. To support the framers’ intent in this regard, we can cite to the Constitution’s broad clauses: ‘‘due process,’’ ‘‘liberty,’’ ‘‘equal protection,’’ or the Ninth Amendment’s guarantee that the rights created were not exhaustive. Justice Douglas’s assertion in Griswold that a reading of the documents as a whole leaves one with an inescapable feeling that the framers intended that the sanctity and privacy of the individual should be protected from unjustified intrusion by the state, seems to relate a legitimate truth.

To this view, Justice Learned Hand would respond that it would be ‘‘most irksome to be ruled by a bevy of Platonic Guardians,’’ fearing such power in a nonelected body with life tenure. Those asserting a more clause-bound basis for judicial interpretation, limited to the original intent of the framers themselves, cite to the repudiation of the Court’s creation of the ‘‘liberty to contract’’ as an unarticulated right in Lochner v. New York in 1905. The creation of this unarticulated right by the Court’s substantive application of the due process clause of the Fourteenth Amendment has been often criticized as an example of the danger in allowing the creation of such rights. The activism generated during the ‘‘Lochner era,’’ where the Court read ‘‘laissez-faire’’ capitalism as if it were a constitutional mandate, is the traditional armor for those who stand against the Griswold and/or Roe decisions. The application of ‘‘substantive due process’’ to create unarticulated rights that a Court might find ‘‘implicit in our concept of ordered liberty,’’ are the controversial tools of this trade.

The reader should recognize that this never-ending debate stirs the juice that flows beneath the right of privacy.

Which Privacy Interests Are Fundamental? The decision in Roe brings us to the next issue. Of a milieu of individual privacy interests, which interests should be deemed fundamental and protected as constitutional rights, and how should the Court go about so deciding? Of interest is the fact that this activist expansion of the right of privacy has taken place under the tenure of a Supreme Court that has fashioned itself, quite to the contrary, as an advocate of judicial restraint. This somewhat conservative posture has nonetheless offered us the best insight into what interests would be deemed fundamental. Here the Court has tended to apply ‘‘substantive due process’’ to conserve traditional social values, or to deem privacy interests as fundamental based upon a ‘‘respect for the teachings of history [and] solid recognition of the basic values that underlie our society’’ (Moore [1977]). Family, for example, is deemed a fundamental privacy interest ‘‘precisely because the institution of the family is deeply rooted in this Nation’s history and tradition’’ (Planned Parenthood of Southeastern Pa. v. Casey [1992]). Ultimately, based upon these themes, the Court has extended fundamental right protection ‘‘to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education’’ (Planned Parenthood [1992]).

This never-ending constitutional debate will perhaps be resolved by the evolving nature of constitutional law that is dependent upon just who is appointed to the Court. Of interest, in this regard, was the Court’s opinion in Lawrence v. Texas (2003), finding a Texas statute that criminalized only homosexual acts as ‘‘sodomy’’ unconstitutional based on the fundamental right of privacy because,

When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

To this Justice Scalia dissented and argued ‘‘that homosexual sodomy is not a right deeply rooted in our Nation’s history and tradition,’’ and that to conclude that it was ‘‘implicit in the concept of ordered liberty is, at best, facetious.’’ Here the majority’s more generalized view of the nature of the right provided a much more expansive view of protected rights than did Scalia’s more specific inquiry. With Griswold opinion well settled within the confines of stare decisis, the resolution of the more general versus specific distinction is perhaps where the answers in the future may lay.

Yet, the narrow five-to-four majority in Lawrence certainly emphasizes the continuing controversy and debate surrounding the right of privacy and judicial protection of ‘‘unarticulated constitutional rights.’’

MARTIN L. LEVY

References and Further Reading

• Bork, Robert, Neutral Principles and Some First Amendment Problems, Indiana Law Journal 47 (1971).
• Ely, John Hart. Democracy and Distrust. Cambridge, MA: Harvard University Press, 1980.
• Ely, John Hart, The Wages of Crying Wolf: A Comment on Roe v. Wade, Yale Law Journal 82 (1973): 920.
• Grey, Thomas C., Do We Have an Unwritten Constitution?, Stanford Law Review 27 (1975): 703.
• Hand, Learned B. The Bill of Rights. Cambridge, MA: Harvard University Press, 1958.
• Strauss, David A., Abortion, Toleration, and Moral Uncertainty, Supreme Court Review 1993 (1993): 1.
• Tribe, Laurence, Forward: Toward a Model of Roles in the Due Process of Life and Law, Harvard Law Review 87 (1973): 1.

Cases and Statutes Cited

• Griswold v. Connecticut, 381 U.S. 479 (1965)
• Lawrence v. Texas, 539 U.S. 558, 2003 (2003)
• Lochner v. New York, 198 U.S. 45 (1905)
• Moore v. City of East Cleveland, 431 U.S. 494 (1977)
• Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)
• Roe v. Wade, 410 U.S. 113 (1973)