Privacy Isn’t In The Constitution – But It’s Everywhere In Constitutional Law

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(THE CONVERSATION) Almost all American adults — including parents, medical patients, and sexually active people — regularly exercise their right to privacy, even if they don’t know it.

Privacy is not specifically mentioned in the US Constitution. But for half a century, the Supreme Court has recognized it as an outgrowth of individual liberty protections. As I have explored in my research on constitutional privacy rights, this implicit right to privacy is the source of many of the most cherished, controversial, and commonly used rights in the country, including the right to abort.

A key element of freedom

The Supreme Court first formally identified what is called “decisional privacy” – the right to independently control the most personal aspects of our lives and bodies – in 1965, saying it stemmed from other rights. explicit constitutional.

For example, First Amendment speech and assembly rights allow people to decide in private what they will say and with whom they will associate. The Fourth Amendment limits government intrusion into the private property, documents, and assets of people.

Relying on these explicit provisions, the court held in Griswold v. Connecticut that people have privacy rights preventing the government from banning married couples from using contraception.

In a short time, the court clarified its understanding of the constitutional origins of privacy. In Roe v. Wade of 1973 protecting the right to have an abortion, the court held that the right to decisional confidentiality is based on the Constitution’s assurance that people cannot be “deprived of life, liberty, or property , without due process of law. This phrase, called the Due Process Clause, appears twice in the Constitution – in the Fifth and 14th Amendments.

The confidentiality of decisions has also served as the basis for other decisions protecting many crucial and daily activities.

The right to privacy protects the ability to have consensual sex without being sent to jail. And privacy enhances the ability to marry regardless of race or gender.

The right to privacy is also essential to a person’s ability to keep their family together without undue government interference. For example, in 1977, the court relied on the family’s right to privacy to decide that a grandmother could move her grandchildren to her home to raise them even if it violated a local zoning ordinance. .

Under a combination of privacy and liberty rights, the Supreme Court also protected a person’s freedom in making medical decisions. For example, in 1990, the court found “that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.”

Limit government disclosure

The right to decision-making secrecy is not the only form of privacy protected by the Constitution. As then-Supreme Court Justice William Rehnquist noted in 1977, “the concept of ‘privacy’ can be a coat of many colors, and different kinds of ‘privacy’ rights have been recognized in law. »

This includes what is known as a right to “information privacy”, that is, allowing a person to limit government disclosure of information about them.

According to some authorities, the right extends even to prominent public and political figures. In a landmark 1977 decision, Chief Justice Warren Burger and Rehnquist – both conservative justices – suggested in dissenting opinions that former President Richard Nixon had an interest in protecting the privacy of documents written during his presidency that affected his personal life. Lower courts have relied on the right to privacy of information to limit the government’s ability to disclose a person’s sexual orientation or HIV status.

All in all, although the word is not 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 – as in a future Supreme Court decision – many of the rights to which it is linked could also be in jeopardy.

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