Privacy isn鈥檛 in the Constitution 鈥� but it鈥檚 everywhere in constitutional law
By , on聽June 15, 2022 8.26am EDT
Almost all American adults 鈥� including parents, medical patients and people who are sexually active 鈥� regularly exercise their right to privacy, even if they don't know it.
Privacy is not specifically mentioned in the聽. 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聽听辞苍听, this implied right to privacy is the source of many of the nation鈥檚 most cherished, contentious and commonly used rights 鈥� including the right to have an abortion.
A key component of liberty
The Supreme Court first formally identified what is called 鈥溾�� 鈥� the right to independently control the most personal aspects of our lives and our bodies 鈥� in 1965, saying it was聽.
For instance, the聽聽rights of speech and assembly allow people to privately decide what they鈥檒l say, and with whom they鈥檒l associate. The聽聽limits government intrusion into people鈥檚 private property, documents and belongings.
Relying on these explicit provisions, the court concluded in聽聽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聽, the court held that the right of decisional privacy is based in the Constitution鈥檚 assurance that people cannot be 鈥渄eprived of life, liberty or property, without due process of law.鈥� That phrase, called the due process clause,聽聽鈥� in the聽听补苍诲听.
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聽. And privacy buttresses the聽聽regardless of race or gender.
The right to privacy is also key to a person鈥檚 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聽聽even though it violated a local zoning ordinance.
Under a combination of privacy and liberty rights, the Supreme Court has also protected a person鈥檚 freedom in medical decision-making. For example, in 1990, the court concluded 鈥渢hat a competent person has a聽聽in refusing unwanted medical treatment.鈥�
Limiting government disclosure
The right to decisional privacy is not the only constitutionally protected form of privacy. As then-Supreme Court Justice William Rehnquist聽, the 鈥渃oncept of 鈥榩rivacy鈥� can be a coat of many colors, and quite differing kinds of rights to 鈥榩rivacy鈥� have been recognized in the law.鈥�
This includes what is called a right to 鈥渋nformational privacy鈥� 鈥� 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 鈥� both conservative justices 鈥撀犅爄n dissenting opinions that former President Richard Nixon had a privacy interest in documents made during his presidency that touched on his personal life.聽聽have relied on the right of informational privacy to limit the government鈥檚 ability to disclose someone鈥檚 sexual orientation or HIV status.
All told, though the word isn鈥檛 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 鈥� such as in a future Supreme Court decision 鈥� many of the rights it鈥檚 connected with may also be in danger.