Constitutional Right to Privacy Nowhere

¶ … Constitutional Right to Privacy

Nowhere in the Constitution are Americans guaranteed a right to privacy, though many people assume that a right to privacy is something protected by the Constitution. In fact, many people believe that the right to privacy is found in the Fourth Amendment. This assumption is logical, because the Fourth Amendment does seem to provide a certain degree of privacy protection. The Fourth Amendment provides that, "

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not 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" (U.S. Const. amend. IV). Obviously, this amendment grants some limited right to privacy, but that right seems only to suggest that the government cannot enter into someone's home in order to engage in an unreasonable search and seizure. However, the Fourth Amendment does not define what might be considered unreasonable, or, in any way, try to limit what type of control the government can attempt to assert over people in the privacy of their own homes. In fact, that change in privacy laws did not come until a little more than 50 years ago, but, since that time, the constitutional right to privacy has been one of the most vehemently protected rights. Furthermore, because the right to privacy has been the right used to support access to abortion, it has become one of the most hotly contested of all judicially-created constitutional rights.

In fact, the constitutional right to privacy was first developed in a case that clearly had almost nothing to do with search or seizure. In Griswold v. Connecticut, 381 U.S. 479 (1965), the Court was asked to consider whether it was legal to ban a married couple's use of contraceptives. The law did not ban the purchase or sale of contraceptives, but actually banned the use of contraceptives. While the law had been around since the late 1800s, it was rarely, if ever, enforced. Obviously, one of the issues with enforcement was that the state was not generally present when people were using the contraceptives. Despite the fact that the law was rarely enforced, several times people attempted to challenge the law. However, because those people had not actually been prosecuted for violating the law, the courts had determined that they lacked standing or the controversy was not ripe. However, some of the Justices, most notably Justice Harlan, indicated that they believed that the liberties enumerated in the Constitution were only some of the freedoms guaranteed by the Constitution.

Against this background, Estelle Griswold, the Executive Director of the Planned Parenthood League of Connecticut and Dr. C. Lee Buxton opened a contraceptive clinic in Connecticut. They were arrested, tried, found guilty, and fined for violating the statue in question. Griswold appealed her conviction, arguing that the Fourteenth Amendment's due process and equal protection clauses prohibited the anti-contraceptive legislation. The Supreme Court agreed. While the Court acknowledged that the Constitution never explicitly mentions privacy, it argued that it was clear, from looking at provisions of the Constitution, which it was meant to protect privacy. The concurring opinions, while not expressing the majority of the Court, argued that the Ninth Amendment and the Fourteenth Amendment provided support for a right to privacy (See generally, 381 U.S. 479).

The Griswold decision was specifically limited to its facts, and applied to the use of contraceptives between married people. However, relatively quickly the Court expanded that holding. In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court was called upon to determine whether it was legal to deny unmarried couples the right to use contraceptives, when married couples had that right. The Court, building upon the already established right-to-privacy, determined that it would be discriminatory to deny unmarried persons the same right.