Through the mists of time: Origins of the right to privacy

By David Adler

The U.S. Supreme Court’s landmark decision in the 1965 case of Griswold v. Connecticut established the right to privacy as a fixed star in our constitutional constellation and, in the process, guaranteed married couples access to contraceptive devices. Griswold falls into the category of a “great” case because of its enormous influence in expanding the rights and liberties of Americans. 

Griswold involved an old Connecticut law that prohibited married couples from using contraception. The law reflected a legislative preference for procreational, rather than recreational, sexual intercourse. It presents a case in which the court “finds” or discovers a constitutional right, in much the same way that the justices have discerned additional unenumerated rights such as the right to marriage, the right to travel, the right of parents to raise their children in accordance with their values and, among others, the freedom of association. 

All of these rights are best understood as rights that are derived from rights and liberties articulated or enumerated in the Constitution. The discovery of a right, more than 150 years or so after the writing and adoption of the Constitution, is bound to be controversial since critics will accuse the court of inventing or creating a right not grounded within the four corner of the Constitution. 

The court cannot create new rights any more than it can create new powers, of course, for such authority is reserved to the Amendatory Clause in Article V, but it does possess authority to ascertain and announce the presence in the Constitution of a right that has existed but never before asserted. There is a thin line between the legitimate discovery, as opposed to an illegitimate creation of a constitutional right, and the difference lies in the court’s reasoning.

The court’s 7-2 opinion, written by Justice William O. Douglas, whose 36 years on the High Bench remains the record for longevity, was hailed by millions of Americans who valued their right to privacy, particularly when it came to matters of sexual intimacy and reproductive rights. The opinion, however, was roundly criticized by various scholars and commentators, who claimed Douglas had simply “invented” the right from whole cloth. Where in the Constitution did he locate the right?

Justice Douglas described the right of privacy as a “penumbral,” that is, an implied right, derived from several provisions in the Bill of Rights. He found a zone of privacy in the First Amendment’s freedom of religion and speech, each of which protects freedom to think one’s thoughts within a realm that government may not invade, and in the freedom of assembly, which necessarily implies a degree of privacy to determine with whom one might associate. 

Douglas also discovered the roots of privacy in the Third Amendment’s prohibition on quartering of troops in a citizen’s home, an infamous British practice that Congress moved swiftly to remedy in drafting the Bill of Rights, and in the Fifth Amendment, which protects the right against self-incrimination. The right against self-incrimination, a hard-won right by sturdy Englishmen in the 17th Century, protects an individual’s privacy in refusing to aid the state’s prosecution of him.

Readers will almost certainly agree with Douglas that the Fourth Amendment, which provides protection against “unreasonable” search and seizure, includes a right to privacy in one’s home, what the founders understood as a “man’s castle,” off limits to the government without a proper search warrant.

Justice Douglas invoked the Ninth Amendment to protect the “sacred precincts of the marital bedroom.” This constitutional provision declares, “The enumeration in this Constitution of certain rights shall not deny or disparage other rights retained by the people.” Douglas’ assumption that the clause means what it says and says what it means concluded that, indeed, we the people enjoy rights beyond those enumerated in the Constitution. Douglas reasoned that married couples’ expectation of privacy is older than the Constitution itself and thus surely must be embodied in the Ninth Amendment. Justice John Marshall Harlan, who wrote a concurring opinion, thought this clause sufficient in itself to protect the use of contraceptive devices.

Finally, Justice Douglas located a zone of privacy in the liberty provision of the Due Process Clause of the 14th Amendment. Douglas reasoned that “liberty” was a legal concept broad enough to permit married couples to determine, as a matter of privacy, whether they would employ contraceptive methods. 

Since Griswold was decided, a majority of the Supreme Court Justices have rightly embraced a general right to privacy, as have most scholars and commentators, despite their somewhat initial reluctance to support the court’s discovery of a right that seems inextricably linked to Americans’ conceptions of freedom and liberty. 

Like all other constitutional provisions protecting Americans’ rights and liberties, the assertion of a right to privacy, predictably, has led to deep-seated controversies over its scope and application ever since. This fundamental right has provided a foundation, for example, for reproductive rights, a subject never far removed from the front pages of our nation’s newspapers. We turn to that next week. 

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to Dr. Adler at [email protected] and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.