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Where Did the Right to Privacy Come From?

Origins of the Right to Privacy

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The right to privacy is the time-travel paradox of constitutional law: even though it didn't exist as a constitutional doctrine until 1961, and didn't form the basis of a Supreme Court ruling until 1965, it is in some respects the oldest constitutional right. It is the right to privacy that forms the common foundation of the freedom of conscience outlined in the First Amendment, the right to be secure in one's person outlined in the Fourth Amendment, and the right to refuse self-incrimination outlined in the Fifth Amendment - despite the fact that the word "privacy" itself appears nowhere in the U.S. Constitution.

1789

The Bill of Rights proposed by James Madison originally includes the Fourth Amendment, describing an unspecified "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and the Ninth Amendment, stating that "[t]he enumeration of the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," but does not specifically mention a right to privacy.

1868

Section 1 of the Fourteenth Amendment makes several general references to rights not explicated in the amendment. "No State," the amendment reads, "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."

1961

In Poe v. Ullman, the U.S. Supreme Court declines to overturn a Connecticut law banning birth control on the grounds that the plaintiff was not threatened by the law and, subsequently, had no standing to sue. In his dissent, Justice John Marshall Harlan II outlines the right to privacy - and, with it, a new approach to unenumerated rights:
Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.
Four years later, Harlan's lonely dissent would become the law of the land.

1965

Plaintiffs seeking to challenge the Connecticut birth control ban open a Planned Parenthood birth control clinic in New Haven, and are promptly arrested. This gives them standing to sue, and the resulting Supreme Court case - Griswold v. Connecticut - both strikes down all state-level bans on birth control and establishes the right to privacy as a constitutional doctrine. Citing freedom of assembly cases such as NAACP v. Alabama (1958), which specifically mentions "freedom to associate and privacy in one's associations," Justice William O. Douglas writes for the majority:
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance … Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people' ...

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship.
Since 1965, the Supreme Court has most famously applied the right to privacy to abortion rights, in Roe v. Wade (1973), and sodomy laws, in Lawrence v. Texas (2003) - but we will never know how many laws have not been passed, have not been enforced, due to the doctrine of a constitutional right to privacy. It has become an indispensable bedrock of U.S. civil liberties jurisprudence; without it, our country would be a very different place.
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