Privacy Isn’t In The Constitution – But It’s Everywhere In Constitutional Law

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Almost all American adults – including parents, medical patients and people who are sexually active – regularly exercise their right to privacy, even if they don’t know it.

Privacy is not specifically mentioned in the U.S. Constitution. But for half a century, the Supreme Court has recognized it as an outgrowth of protections for individual liberty. As I have studied in my research on constitutional privacy rights, this implied right to privacy is the source of many of the nation’s most cherished, contentious and commonly used rights – including the right to have an abortion.

A Key Component Of Liberty

The Supreme Court first formally identified what is called “decisional privacy” – the right to independently control the most personal aspects of our lives and our bodies – in 1965, saying it was implied from other explicit constitutional rights.

For instance, the First Amendment rights of speech and assembly allow people to privately decide what they’ll say, and with whom they’ll associate. The Fourth Amendment limits government intrusion into people’s private property, documents and belongings.

Relying on these explicit provisions, the court concluded in Griswold v. Connecticut that people have privacy rights preventing the government from forbidding married couples from using contraception.

In short order, the court clarified its understanding of the constitutional origins of privacy. In the 1973 Roe v. Wade decision protecting the right to have an abortion, the court held that the right of decisional privacy is based in the Constitution’s assurance that people cannot be “deprived of life, liberty or property, without due process of law.” That phrase, called the due process clause, appears twice in the Constitution – in the Fifth and 14th Amendments.

Decisional privacy also provided the basis for other decisions protecting many crucial, and everyday, activities.

The right to privacy protects the ability to have consensual sex without being sent to jail. And privacy buttresses the ability to marry regardless of race or gender.

The right to privacy is also key to a person’s ability to keep their family together without undue government interference. For example, in 1977, the court relied on the right to private family life to rule that a grandmother could move her grandchildren into her home to raise them even though it violated a local zoning ordinance.

Under a combination of privacy and liberty rights, the Supreme Court has also protected a person’s freedom in medical decision-making. For example, in 1990, the court concluded “that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.”

Limiting Government Disclosure

The right to decisional privacy is not the only constitutionally protected form of privacy. As then-Supreme Court Justice William Rehnquist noted in 1977, the “concept of ‘privacy’ can be a coat of many colors, and quite differing kinds of rights to ‘privacy’ have been recognized in the law.”

This includes what is called a right to “informational privacy” – letting a person limit government disclosure of information about them.

According to some authority, the right extends even to prominent public and political figures. In one key decision, in 1977, Chief Justice Warren Burger and Rehnquist – both conservative justices – suggested in dissenting opinions that former President Richard Nixon had a privacy interest in documents made during his presidency that touched on his personal life. Lower courts have relied on the right of informational privacy to limit the government’s ability to disclose someone’s sexual orientation or HIV status.

All told, though the word isn’t in the Constitution, privacy is the foundation of many constitutional protections for our most important, sensitive and intimate activities. If the right to privacy is eroded – such as in a future Supreme Court decision – many of the rights it’s connected with may also be in danger.

Scott Skinner-Thompson’s research and teaching interests are in constitutional law, civil rights, and privacy law, with a particular focus on LGBTQ and HIV issues. Bringing together these topics, his new book, Privacy at the Margins, examines how privacy can function as an expressive, anti-subordination tool of resistance to surveillance regimes.

This article is reprinted from The Conversation under Creative Commons license.

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