The Constitutional Right to Privacy

"It all comes from, I would argue, this right to privacy that doesn't exist in my opinion in the United States Constitution, this right that was created, it was created in Griswold — Griswold was the contraceptive case — and abortion. And now we're just extending it out." — Rick Santorum in an April 7, 2003 interview with Associated Press

Santorum's sentiment here is fairly popular, but is it correct? Well, he's not entirely wrong. The 1965 case Griswold v. Connecticut was the first time an explicit "right to privacy" was given as part of the U.S. Supreme Court's authoritative rationale, but it wasn't pulled out of thin air for the occasion. It had been seriously discussed by legal scholars for at least 75 years prior to Griswold, and had made conscious appearances in Supreme Court cases since the 1910s.

Early Milestones for the Right to Privacy

1886    Boyd v. United States (116 U.S. 616)  [FindLaw] [Wikipedia]
1890    Harvard Law Review IV(5) article "The Right to Privacy" [Google Books] [PDF]
1914    Weeks v. United States (232 U.S. 383) [FindLaw]
1923    Meyer v. State of Nebraska (262 U.S. 390) [FindLaw] [Wikipedia]
1925    Pierce v. Society of Sisters (268 U.S. 510) [FindLaw] [Wikipedia]
1928    Olmstead v. United States (277 U.S. 438) [FindLaw] [Wikipedia]
1958    NAACP v. Alabama (357 U.S. 449) [FindLaw] [Wikipedia]
1960    Poe v. Ullman (367 U.S. 497) [FindLaw] [Wikipedia]
1961    Mapp v. Ohio (367 U.S. 643) [FindLaw] [Wikipedia]
1965    Griswold v. Connecticut (381 U.S. 479) [FindLaw] [Wikipedia]

Boyd v. United States

A critical issue in this case was whether normal fourth amendment protections can be circumvented if, instead of a literal "search and seizure," a citizen is compelled to produce documents. The Court decided that the intent of the law was broader than the acts of searching and seizing themselves.

"It is true that certain aggravating incidents of actual search and seizure, such as forcible entry into a man's house and searching among his papers, are wanting [...]; but it accomplishes the substantial object of those acts in forcing from a party evidence against himself. It is our opinion, therefore, that a compulsory production of a man's private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the fourth amendment to the constitution, in all cases in which a search and seizure would be, because it is a material ingredient, and effects the sole object and purpose of search and seizure." — Boyd (116 U.S. 616)

At this point we're still talking about private property, though it's hard to maintain that the physical pages are the sole — or even primary — aspect of personal documents intended to be protected by the fourth amendment. What's important about Boyd is the move from the letter of the law to the more abstract purpose of the law.

"The Right to Privacy"

High profile scholarly discussion of a right to privacy began with this Harvard Law Review paper by Samuel Warren and Louis Brandeis. Its opening paragraph is well worth reading:

"That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis ['by force and arms']. Then the 'right to life' served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term 'property' has grown to comprise every form of possession — intangible, as well as tangible." (Warren & Brandeis)

What changes were prompting this "broadening" of personal and property protections in the late nineteenth century? "Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life [....]" Paparazzi and tabloids, in today's terms! Warren and Brandeis (W&B) were concerned with the way newspapers — the new gossip "trade" — could publish details of personal lives such as the contents of diaries or letters they manage to get their hands on. Anticipating the objection that copyright law already protected people from having their personal letters published, W&B answered that copyright only protects exact reproduction; all the facts and feelings revealed by a letter could be published by a "gossip-monger."

After distinguishing this right to privacy from copyright, slander, contract law, etc., W&B discuss limitations on privacy. By analogy to slander and libel, they write: "The right to privacy does not prohibit any publication of matter which is of public or general interest." For example, "Peculiarities of manner and person, which in the ordinary individual should be free from comment, may acquire a public importance, if found in a candidate for public office." Yet this doesn't mean public figures give up all privacy rights.

The second limitation on privacy is that normally-impermissible reporting is allowed "when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel." The third limitation is that "oral publication" i.e. talking about private matters is not grounds for a lawsuit "in the absence of special damage." W&B didn't want to make regular person-to-person gossip illegal. (No doubt they would have phrased things differently if mass communication by radio had existed back then.) Fourth, a person can make his or her own private matters public, after which further discussion is allowed.

This paper's closing line is also worth quoting:

"The common law has always recognized a man's house as his castle, impregnable, often, even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?" (Warren & Brandeis)

Some things to notice: W&B argued for an expanded understanding of existing protections, not new legislation or judges entirely making up new protections. They wanted the government to discourage private citizens from violating each other's privacy, not just to keep the state out of private affairs. Finally, they were discussing common law, not the Constitution specifically. So why is their paper relevant to a constitutional right to privacy? Because common law theory is a significant part of constitutional interpretation. Subsequent Supreme Court justices will draw on the ideas and language used in this paper, especially in a dissenting opinion for Olmstead v. United States which was written by — surprise, surprise — Brandeis himself after he was appointed to the Supreme Court!

Weeks v. United States

The Court's ruling in Boyd had spoken of "private papers" but not "privacy." Weeks looked back at Boyd and began to use "privacy" language detached from specific possessions:

"[The fourth amendment] took its origin in the determination of the framers of the Amendments to the Federal Constitution to provide for that instrument a Bill of Rights, securing to the American people, among other things, those safeguards which had grown up in England to protect the people from unreasonable searches and seizures, such as were permitted under the general warrants issued under authority of the government, by which there had been invasions of the home and privacy of the citizens, and the seizure of their private papers in support of charges, real or imaginary, make against them." —Weeks (232 U.S. 383), emphasis added.

Nor is this just background information. The Court characterized violations of the fourth amendment as violations of privacy:

"Under such circumstances, without sworn information and particular description, not even an order of court would have justified such procedure; much less was it within the authority of the United States marshal to thus invade the house and privacy of the accused." — Weeks (232 U.S. 383)

Meyer v. State of Nebraska

In 1919, Nebraska passed a law against teaching foreign languages in schools until after the eighth grade, with the intent of closing down German classes. (Immigrant anxiety isn't a new thing.) This was found unconstitutional. How? The Court cited the fourteenth amendment's due process protection of "liberty." If that sounds awfully vague, well, you're right about that. The Court did try to fill in what they took "liberty" to mean:

"While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." — Meyer (262 U.S. 390)

This should sound familiar! Warren and Brandeis' paper also contrasted an early understanding that "liberty meant freedom from actual restraint" with a maturing right to liberty that "secures the exercise of extensive civil privileges." Whereas that paper had spoken of "a recognition of man's spiritual nature, of his feelings and his intellect," the opinion in Meyer mentions conscience, marriage, family, and the acquisition of useful knowledge. Finally, W&B's paper's "right to enjoy life" can be seen in the Court's phrasing "privileges [...] essential to the orderly pursuit of happiness." This isn't quoting, and it might not even be a direct reference, but it's at least clear that both texts are referring to a related set of ideas about the growth of common law liberties.

Though the word "privacy" doesn't appear in the Court's decision, Meyer v. State of Nebraska would have been a much more appropriate case for Santorum to cite as the beginning of the Supreme Court's recognition of an expansive right to privacy. And it wasn't about contraception or abortion; it was about the parental right to guide the education of their children, as the Court concluded:

"Plaintiff in error taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the amendment" — Meyer (262 U.S. 390)

Pierce v. Society of Sisters

In 1922, Oregon passed its own state law to restrict educational options through the eighth grade. Specifically, children had to attend public rather than private schools. Why didn't Oregon realize this would be struck down on account of Meyer? Because the decision in Meyer didn't actually happen until 1923.

Anyway, schoolteacher nuns sued and eventually won on grounds we've seen before:

"Under the doctrine of Meyer v. Nebraska [...] we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children [...] under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." — Pierce (268 U.S. 510)

The right to privacy being developed in these cases is purely a restriction on state regulation, not Warren and Brandeis' hope for the ability of private citizens to sue each other for breaches of privacy. Their paper has turned out to be very influential in terms of defining privacy, but not so influential in terms of implementation. Instead, the Court has treated privacy rights as a strong presumption against state interference in a variety of areas.

Olmstead v. United States

This was the case that concluded warrantless wiretapping is perfectly fine, so long as the feds tap from the street outside (it was later overturned). What's most important about Olmstead today is Justice Brandeis' dissent. Remember, this is the same Louis Brandeis who co-wrote "The Right to Privacy" 38 years earlier! He built on the Court's earlier reasoning in Boyd that limiting the fourth amendment to physical search and seizure would make it less and less relevant as time goes on:

"The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions." — Olmstead (277 U.S. 438), Brandeis' dissent

And reprising his own paper's theme, he wrote:

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."— Olmstead (277 U.S. 438), Brandeis' dissent

Thus Brandeis anchors his earlier "right to privacy" ideas in the fourth amendment, as the fundamental reason for the amendment.

NAACP v. Alabama

In the mid 1950's Alabama tried to keep the National Association for the Advancement of Colored People (NAACP) from legally operating in the state. As part of this process, a court ordered the NAACP to produce membership lists. Although the NAACP cooperated in other aspects, it said "no" to revealing its standard (non-officer) members. The Supreme Court ruled in favor of the NAACP.

"It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. [...]

It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations." — NAACP (357 U.S. 449)

The idea here is that what's required for a right (association) may become recognized as a right itself (privacy).

Poe v. Ullman

Finally, a contraception case! Think of Poe as a trial run of Griswold, since both cases were about the same Connecticut law. A married couple had gone through three consecutive pregnancies, resulting in children with "multiple congenital abnormalities from which each died shortly after birth." Their doctor suspected a genetic problem, believing further pregnancies would likely turn out the same. Another woman was seriously injured by a pregnancy and was warned that another pregnancy would threaten her life. Both married women wished to learn how best to prevent conception, but a state law made it illegal for doctors to advise patients on contraceptive use and for citizens to make use of contraceptives. The Court decided not to address questions of constitutionality and dismissed the case because the couple had not actually been charged for violating the law.

However, Justice Douglas dissented saying:

"If there is a case where the need for this remedy in the shadow of a criminal prosecution is shown, it is this one [....]

What are these people - doctor and patients - to do? Flout the law and go to prison? Violate the law surreptitiously and hope they will not get caught? By today's decision we leave them no other alternatives. It is not the choice they need have under the regime of the declaratory judgment and our constitutional system. It is not the choice worthy of a civilized society. A sick wife, a concerned husband, a conscientious doctor seek a dignified, discrete, orderly answer to the critical problem confronting them. We should not turn them away and make them flout the law and get arrested to have their constitutional rights determined." — Poe (367 U.S. 497)

Douglas argued that the first amendment's freedom of speech clause applied to doctors giving advice on contraception. He also argued that forbidding the use of contraceptives "deprives them of 'liberty' without due process of law, as that concept is used in the Fourteenth Amendment." He cited the part of Meyer v. State of Nebraska that affirmed a right "to marry, establish a home and bring up children" (as quoted above). If the state cannot interfere with a married couple's choice to have children, how can it interfere with their choice not to have children?

In his conclusion, Douglas wrote, "This notion of privacy is not drawn from the blue. It emanates from the totality of the constitutional scheme under which we live" (Poe). He contrasts our "constitutional scheme" with the way totalitarian societies claim every aspect of life is within the state's business.

Mapp v. Ohio

Mapp is significant for overruling an earlier case, Wolf v. Colorado (338 U.S. 25), where it had originally been decided that the fourth amendment applied to state governments, but that any materials obtained through illegal search and seizure could still be used as evidence in state courts. So while the Wolf court recognized a "right of privacy," it was understood as a restriction only on the federal government, not a right of all citizens against their state governments as well.

In Mapp, the Court extended the "right to privacy" to states, making it (or recognizing it) as a right of the people in the sense we now find most familiar.

"Today we once again examine Wolf's constitutional documentation of the right to privacy free from unreasonable state intrusion, and, after its dozen years on our books, are led by it to close the only [...] courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." — Mapp (367 U.S. 643)

There are several other explicit affirmations of a constitutional right to privacy in Mapp. Why, then, isn't Mapp cited in place of Griswold as a privacy case of highest importance? Because this rationale behind the judgment was only supported by a plurality — not a majority — of justices.

Griswold v. Connecticut

Finally, a case that simultaneously...

1. Invokes a right to privacy
2. Against all levels of government
3. Uses the phrase "right to privacy"
4. In the majority opinion
5. In a majority rationale

Griswold concerned the same state law as Poe (discussed above). Since the Court had refused to consider the constitutional merits of an unenforced law, Planned Parenthood League of Connecticut made a show of violating the law in order to provoke the state into creating a test case. Two $100 fines and some lower court rulings later, the Supreme Court took up the issue for real this time.

What makes any claim about the right to privacy starting in Griswold truly astonishing is that the Griswold opinion cites all of the above cases except Weeks v. United States. There's also a useful summary of how the right to privacy is a kind of background condition for a number of rights enumerated by the Constitution:

"The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. [...] Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'" — Griswold (381 U.S. 479), bolding added

It should be overwhelmingly obvious at this point that the right to privacy was not made up for the sake of "the contraceptive case." It's about restricting government intrusion into our personal lives in a wide variety of areas, including the right to send one's children to a private school, to join a club or attend a church without being put on a membership list for government use, and to not be convicted of a crime based on illegally obtained evidence.

And, yes, the right to privacy also means the police can't bust you for using a condom.