Professor Scott Skinner-Thompson Discusses Privacy in Constitutional Law for ‘The Conversation’ | Colorado Law

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

By Scott Skinner-Thompson, ohoriginally published in the Coversation June 15, 2022 at 8:26 a.m. EDT

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.

Confidentiality is not specifically mentioned in the United States Constitution. But for half a century, the Supreme Court has recognized it as an outgrowth of individual liberty protections. As I studied in my to research on constitutional privacy rightsthis implied right to privacy is the source of many of the country’s most cherished, controversial and commonly used rights, including the right to have an abortion.

A key element of freedom

The Supreme Court first formally identified what is called “decision-making confidentiality– the right to independently control the most personal aspects of our lives and bodies – in 1965, saying it was implicit other explicit constitutional rights.

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

Relying on these explicit provisions, the tribunal concluded 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 a Abortion, the court held that the right to adjudicative confidentiality is grounded in the Constitution’s assurance that people cannot be “deprived of life, liberty, or property without due process.” This sentence, 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 prison. And privacy strengthens the possibility of getting married regardless of race or sex.

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 right to private and family life to decide that a grandmother could move her grandchildren into her house 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 constitutionally protected right to liberty 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 1977the “concept of ‘privacy’ can be a coat of many colors, and different types 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 judges – suggested in dissenting opinions that former President Richard Nixon had an interest in protecting the privacy of documents written during his presidency that touched on his personal life. Lower courts 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.