the Constitution
Guarantee a “Right
to Privacy”?
Does
Amy Albrecht
Alaina Cominskie
Colleen Hughes
Shannon Johnston
What is the U.S. Constitution?
• A document created by our founding fathers establishing
the government of the United States with three separate
branches: Legislative, Judicial, and Executive. The
constitute ensures checks and balances of power among
each branch.
• While the Constitution establishes what the government
can do, the Amendments (Bill of Rights) spell out what
the government can NOT do.
• The Constitution does not establish limitations on what
people can do, it regulates the government.
– Spells out the government’s limited rights and/or powers
Privacy in the Constitution
• The right to privacy is not stated specifically in
the Constitution.
• However, the Supreme Court’s responsibility is
to decide the constitutionality of a law or
government action.
– The Supreme Court does not establish laws on
privacy but prefers to use a case-by-case approach to
rule on privacy.
• The Constitution is a living document that often
reflects public opinion.
What is the “Right to Privacy”?
• The right of a person to be free from intrusion into
matters of a personal nature.
• “Right to be let alone”, according to Supreme Court
Justice Brandeis.
• The 4 States of Privacy
– Solitude
– Intimacy
– Anonymity
– Reserve
Solitude:
• As close to being alone as one can get
• Free from observation of others
Intimacy:
• This is when a person has the right to chose their friend or
partner, without concern of what others will think
Anonymity:
• Free from identification and supervision
Reserve:
• Free to hold back information that we wish to keep to
ourselves
• Not forced to disclose information unless a person
chooses to
Does the Constitution support
the “right to privacy”?
• The majority of Justices on the Supreme Court believe
the “right to privacy” to be a basic human right.
• Some amendments that are believed to include the “right
of privacy” include:
1st Amendment
4th Amendment
5th Amendment
9th Amendment
14th Amendment
1st Amendment
• Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the
freedom of speech, or of the press; or the
right of the people peaceably to assemble,
and to petition the government for a
redress of grievances.
4th Amendment
• The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and
seizures, shall no be violated, and no
warrants shall issue, but upon probable
cause, supported by oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be
seized.
5th Amendment
• No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a grand jury, except in cases arising
in the land or naval forces, or in the militia, when in
actual service in time of war or public danger; nor
shall any person be subject for the same offense to
be twice put in jeopardy of life or limb; nor shall 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; nor shall
private property be taken for public use, without just
compensation.
9th Amendment
• The enumeration in the Constitution, of
certain rights, shall not be construed to
deny or disparage others retained by the
people.
14th Amendment
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Section 1. All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Section 2. Representatives shall be apportioned among the several States
according to their respective numbers, counting the whole number of
persons in each State, excluding Indians not taxed. But when the right to
vote at any election for the choice of electors for President and Vice
President of the United States, Representatives in Congress, the Executive
and Judicial officers of a State, or the members of the Legislature thereof, is
denied to any of the male inhabitants of such State, being twenty-one years
of age,(See Note 15) and citizens of the United States, or in any way
abridged, except for participation in rebellion, or other crime, the basis of
representation therein shall be reduced in the proportion which the number
of such male citizens shall bear to the whole number of male citizens
twenty-one years of age in such State.
14th Amendment
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Section 3. No person shall be a Senator or Representative in Congress, or
elector of President and Vice President, or hold any office, civil or military,
under the United States, or under any State, who, having previously taken
an oath, as a member of Congress, or as an officer of the United States, or
as a member of any State legislature, or as an executive or judicial officer of
any State, to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or given aid or
comfort to the enemies thereof. But Congress may by a vote of two-thirds of
each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by
law, including debts incurred for payment of pensions and bounties for
services in suppressing insurrection or rebellion, shall not be questioned.
But neither the United States nor any State shall assume or pay any debt or
obligation incurred in aid of insurrection or rebellion against the United
States, or any claim for the loss or emancipation of any slave; but all such
debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
Major cases concerning privacy in
the U.S. include:
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Griswold v. Connecticut (1965)
Stanley v. Georgia (1969)
Roe v. Wade (1973)
Bowers v. Hardwick (1986)
Lawrence v. Texas (2003)
Griswold v. Connecticut
(1965)
• The Issue: A Connecticut statute forbids
any person to obtain any drug or article to
prevent conception.
– Section 53-32: “Any person who uses any drug, medicinal article
or instrument for the purpose of preventing conception shall be
fined not less than fifty dollars or imprisoned not less than sixty
days nor more than one year or be both fined and imprisoned.”
– Section 54-196: “Any person who assists, abets, counsels,
causes, hires or commands another to commit any offense may
be prosecuted and punished if he were the principal offender.”
Griswold v. Connecticut
(1965)
– Planned Parenthood League of Connecticut and their
Medical Director, a licensed physician, were found
guilty for supplying materials and advice concerning
the prevention of contraception to a married couple.
• The State considered this topic (birth-control) a
legitimate state concern.
– “It says that preventing the use of birth-control
devices by married persons helps prevent the
indulgence by some in such extramarital relations.”
Griswold v. Connecticut
(1965)
• The Supreme Court ruled:
– Appellants have standing to assert the
constitutional rights of the married people.
– The Connecticut statute forbidding use of
contraceptives violates the right of marital
privacy which is within the penumbra of
specific guarantees of the Bill of Rights.
Griswold v. Connecticut
(1965)
• Justice Douglas delivered the opinion of
the Court:
– “I believe that the right of privacy in the marital
relation is fundamental and basic – a personal
right ‘retained by the people’ within the
meaning of the Ninth Amendment.”
– “Connecticut cannot constitutionally abridge
this fundamental right, which is protected by
the Fourteenth Amendment from the
infringement by the States.”
Griswold v. Connecticut
(1965)
• Justice Black and Justice Stewart dissented:
– If the married couple had merely been informed about
contraceptives and their uses, Planned Parenthood
would be protected by the First and Fourteenth
Amendments.
– “But speech is one thing; conduct and physical
activities are quite another.”
– Since the Executive Director examined the wife and
provided contraceptive devices, they were clearly
violating the Connecticut law.
Stanley v. Georgia
(1969)
• The issue: State laws prohibiting the
possession of obscene material.
– Federal and State agents obtained a warrant to search
Stanley’s home for evidence of bookmaking activity.
Instead of finding evidence of bookmaking, the agents
found films of obscene footage. Stanley was arrested
for having them in his possession.
– Stanley argued that he has the right to read what he
pleases.
– Georgia argued using the court decision regarding
Roth v. U.S. verdict that “obscenity is not within the
area of constitutionally protected speech or press,” that
Stanley was not protected and could be prosecuted.
Stanley v. Georgia
(1969)
• Supreme Court Ruled:
– “We hold that the 1st and 14th amendments prohibit
making mere private possession of obscene material
a crime.”
– The Constitution does protect a person’s right to
receive information without regard to its social worth.
– Supreme court says, “…States retain the broad power
to regulate obscenity, that power simply does not
extend to mere possession by the individual in the
privacy of his own home.”
Stanley v. Georgia
(1969)
• Justice Marshall stated that:
-“If the First Amendment means anything, it means
that a State has no business telling a man, sitting
alone in his own house, what books he may read
or what films he may watch. Our whole
constitutional heritage rebels at the thought of
giving government the power to control men's
minds.”
Roe v. Wade
(1973)
• The Issue: A Texas law enforcing that attempting
to or procuring an abortion is illegal.
– A pregnant single woman (Roe) brought a class
action challenging the constitutionality of the law.
– A separate lawsuit was brought by an unpregnant
married couple (Does) also challenging.
– A physician (Hallford) with two state abortion
prosecutions pending also brought a suit.
Roe v. Wade
(1973)
• Supreme Court Ruled:
– Roe could sue, but Does and Hallford could
not.
– The Texas law violates the Due Process
Clause of the Fourteenth Amendment, which
protects state action against the right of
privacy, including a woman’s qualified right to
terminate her pregnancy.
Roe v. Wade
(1973)
• Supreme Court Ruled:
– For the stage prior to approximately the end of the
first trimester, the abortion decision and its
effectuation must be left to the medical judgment of
the pregnant woman’s attending physician.
– For the stages subsequent to approximately the end
of the first trimester, the State, in promoting its interest
in the health of the mother, may, if it chooses, regulate
the abortion procedure in ways that are reasonably
related to maternal health.
– The Texas criminal abortion statutes as is are
unconstitutional.
Roe v. Wade
(1973)
• Justice Blackmun delivers opinion: “ The Constitution
does not explicitly mention any right of privacy. In a line
of decisions, however, going back perhaps as far as
[1891], the Court has recognized that a right of personal
privacy, or guarantee of certain areas or zone’s of
privacy, does exist under the Constitution. In varying
contexts the Court or individual Justices have indeed
found at least the roots of that right in the First
Amendment, or in the concept of liberty guaranteed by
the first section of the Fourteenth Amendment.”
Bowers v. Hardwick
(1986)
• The issue: A Georgia statute that
criminalized sodomy. (Georgia Criminal
Code 16-6-2)
– A bartender for a gay bar, Michael Hardwick
was arrested for having oral sex with his
partner in his home.
– The charges were dropped but Hardwick
attempted to have the sodomy law declared
unconstitutional.
Bowers v. Hardwick
(1986)
• “[A] person commits the offense of
sodomy when he performs or submits to
any sexual act involving the sex organs of
one person and the mouth or anus of
another.”
• “The sex or status of the persons who
engage in the act is irrelevant as a matter
of state law.”
Bowers v. Hardwick
(1986)
• The Supreme Court ruled:
– The Constitution does not confer a fundamental right upon
homosexuals to engage in sodomy. None of the fundamental
rights announced in this Court’s prior cases involving family
relationships, marriage, or procreation bear any resemblance to
the right asserted in this case. And any claim that those cases
stand for the proposition that any kind of private sexual conduct
between consenting adults is constitutionally insulated from state
proscription is unsupportable.
– Against a background in which many States have criminalized
sodomy and still do, to claim that a right to engage in such
conduct is “deeply rooted in this Nation’s history and tradition or
implicit in the concept of ordered liberty is, at best, facetious.”
Bowers v. Hardwick
(1986)
• The Supreme Court ruled:
– There should be great resistance to expand the reach
of the Due Process Clauses to cover new
fundamental rights. Otherwise, the Judiciary
necessarily would take upon itself further authority to
govern the country without constitutional authority.
The claimed right in this case falls far short of
overcoming this resistance.
– The fact that homosexual conduct occurs in the
privacy of the home does not affect the result.
– Sodomy laws should not be invalidated on the
asserted basis that majority belief that sodomy is
immoral is an inadequate rationale to support the
laws.
Bowers v. Hardwick
(1986)
• Justice White delivered the Court’s
opinion:
– “Any claim that these cases nevertheless
stand for the proposition that any kind of
private sexual conduct between consenting
adults is constitutionally insulated from state
proscription is unsupportable.”
– “Plainly enough, otherwise illegal conduct is
not always immunized whenever it occurs in
the home.”
Bowers v. Hardwick
(1986)
• Originally, the Court of Appeals for the Eleventh
Circuit stated that :
– “..the Georgia statute violated respondent’s
fundamental rights because his homosexual activity is
a private and intimate association that is beyond the
reach of state regulation by reason of the Ninth
Amendment and the Due Process Clause of the
Fourteenth Amendment.”
• Chief Justice Burger added that:
– “…in constitutional terms there is no such thing as a
fundamental right to commit homosexual sodomy.”
Lawrence v. Texas
(2003)
• The Issue: A Texas law forbidding a man
from engaging in deviant sexual
intercourse with another individual of the
same sex.
– Defendants were ‘caught’ when police entered
the home in response to a reported weapons
disturbance.
Lawrence v. Texas
(2003)
• The Supreme Court considered:
– Whether petitioners’ criminal convictions
under the Texas “Homosexual Conduct’ lawwhich criminalizes sexual intimacy by samesex couples, but not identical behavior by
different-sex couples-violate the 14th
Amendment guarantee of equal protection of
laws.
Lawrence v. Texas
(2003)
• The Supreme Court considered:
– Whether petitioners’ criminal convictions for
adult consensual sexual intimacy in the home
violate their vital interests in liberty and
privacy protected by the Due Process Clause
of the 14th Amendment.
– Whether Bowers v Hardwick, 478 U.S. 186
(1986), should be overruled.
Lawrence v. Texas
(2003)
• The Supreme Court Ruled:
– Texas “Homosexual Conduct’ law violates the
privacy of homosexuals under the 14th
Amendment.
– Convictions for adult consensual sexual intimacy
in the home violate their vital interests in liberty
and privacy protected by the Due Process Clause
of the 14th Amendment.
– “Bowers was not correct when it was decided,
and it is not correct today. Bowers v. Hardwick
should be and now is overruled.”
Privacy as a Penumbral Right
• Justice William O. Douglas announced the
penumbral right to privacy in the case of
Griswold v. Connecticut.
• Penumbra: an area in which something exists to
a lesser or uncertain degree.
– An extension of protection, reach, application, or
consideration; especially: a body of rights held to be
guaranteed by the implication from other rights
explicitly enumerated in the U.S. Constitution.
Privacy as a Penumbral Right
• “Previous cases suggests that the specific guarantees in
the Bill of Rights have penumbras, formed by the
emanation from those guarantees that give them
substance. Various guarantees create zones of privacy,
such as the First Amendment right of association, the
Third Amendment prohibition against quartering soldiers
in a home, the Fourth Amendment right to be secure in
one’s person, house, papers, and effects, the Fifth
Amendment right to not deny or disparage any right
retained by the people. These cases press for
recognition of the penumbral rights of privacy and
repose.” (Justice Douglas, for the majority with Goldberg,
Warren, & Brennan also concurring)
Conservative Justices
• Chief Justice William Hubbs Rehnquist
• Justice Antonin Scalia
• Justice Clarence Thomas
• Textualism
– Strict adherence to a text
– Textualists look no further than the words of the constitution to
reach decisions.
– “If you are a textualist, you don’t care about the intent, and I don’t
care if the Framers of the Constitution had some secret meaning
in mind when they adopted its words. I take the words as they
were promulgated to the people of the United States and what is
the fairly understood meaning of those words.” Scalia
– “Words do have a limited range of meaning and no interpretation
that goes beyond that range is permissible.” Scalia
Does the Constitution Guarantee a
‘Right to Privacy”?
We feel it does due to the following:
• Although the right to privacy is not
specifically stated in the Constitution it is
contained in the Penumbra of the Bill of
Rights.
• The latest Supreme Court Rulings support
Personal Privacy.
– Privacy from the GOVERNMENT.
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Kyllo v. United States
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