English

Privacy

Author: Cornell Law School

https://www.law.cornell.edu/wex/privacy

Overview

In the United States, the Supreme Court first recognized the right to privacy in  Griswold v. Connecticut  (1965). Before Griswold, however, Louis Brandeis (prior to becoming a Supreme Court Justice) co-authored a  Harvard Law Review article called "The Right to Privacy," in which he advocated for the "right to be let alone."

Griswold and the Prenumbras

​In Griswold, the  Supreme Court  found a right to privacy, derived from  penumbras  of other explicitly stated constitutional protections. The Court used the personal protections expressly stated in the  First ,  Third ,  Fourth ,  Fifth , and  Ninth  Amendments to find that there is an implied right to privacy in the  Constitution . The Court found that when one takes the penumbras together, the Constitution creates a  "zone of privacy."   While the holding in Griswold found for a right to privacy, it was narrowly used to find a right to privacy for married couples, and only with regard to the right to purchase contraceptives. 

Justice Harlan's Concurrence in Griswold

Also important to note is Justice Harlan's concurring opinion in Griswold, which found a right to privacy derived from the  Fourteenth Amendment . In his concurrence, he relies upon the rationale in his dissenting opinion in  Poe v. Ullman  (1961). In that opinion, he wrote, "I consider that this Connecticut legislation, as construed to apply to these  appellants , violates the Fourteenth Amendment. I believe that a  statute  making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual's personal life." 

In privacy cases post-Griswold, the Supreme Court typically has chosen to rely upon Justice Harlan's concurrence rather than Justice Douglas's majority opinion.  Eisenstadt v Baird   (1971),  Roe v. Wade  (1972), and  Lawrence v. Texas  (2003) are three of the most prolific cases in which the Court extended the right to privacy. In each of these cases, the Court relied upon the Fourteenth Amendment, not penumbras. 

Extending the Right to Privacy

In Eisenstadt, the Supreme Court decided to extend the right to purchase contraceptives to unmarried couples. More importantly, however, the Court found that "the constitutionally protected right of privacy inheres in the individual, not the marital couple." 

In Roe, the Supreme Court used the right to privacy, as derived from the Fourteenth Amendment, to extend the right of privacy to encompass a woman's right to have an abortion: "This right of privacy . . . founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

In Lawrence, the Supreme Court used the Fourteenth Amendment to extend the right to privacy to "persons of the same sex [who choose to] engage in  . . . sexual conduct." Relying upon the Fourteenth Amendment's guarantee of due process, the Court held: "The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."

What liberty means according to the Constitution

Brendan Bukalski • Ask the Lawyer

Nov. 22, 2016

Question: I know that our constitution prevents our government from taking away life, liberty, or property, but what can you explain what liberty means in this context?  Is is just not locking you away in some jail somewhere, or does it consist of more than this from a legal perspective? 

 The Due Process Clause of the Fifth Amendment of the United States Constitution, which is applicable to the states via the Fourteenth Amendment to the Constitution, reads, “No person shall be...deprived of life, liberty, or property, without due process of law....”  Under the umbrella of due process are both substantive and procedural due process.  Procedural due process applies to individuals being deprived of life, liberty, or property, and references the procedures that are required in order to deprive a person of any of those things. 

Your question about liberty is an important one.  The issue has been addressed by the Supreme Court of the United States, and those cases can help illustrate the meaning of the word “liberty.”  

In answering your question, it is necessary first to discuss what liberty really is under the Constitution of the United States, and, secondly, to explain when the procedural requirements of the due process clause come into effect - in other words, when a person might be entitled to the processes required by law following a deprivation of liberty.

The word “liberty” itself is fairly vague, the meaning of which is, of course, difficult to define in a legal sense.  Liberty has been interpreted before essentially to mean liberty in the aggregate.  To begin with, let’s look at what liberty means.  It means freedom, and is an essential right that a person has.  The word most commonly is used to mean being able to exercise a freedom, to take an action, or even think a certain way - without being prevented from doing so, and without being forced to do so.  

Liberty is not limited simply to being imprisoned.  Liberty includes more than simply being free from bodily restraints, such as being imprisoned, but also includes things that a free people can do.  For instance, the right to enter into contracts and to be gainfully employed are both aspects of liberty.  

Perhaps the most practical explanation of liberty involves the exercise of fundamental rights.  Rights that are fundamental under the Constitution include the right to free speech, which is perhaps the most recognizable fundamental right we have, and the right to vote, perhaps the second most recognizable fundamental right.  Also encompassed in the definition include other fundamental rights, such as the right to free association, and the right to be free from restraints on travel.  

Liberty is broader than simply not being incarcerated.  For instance, when a person is facing involuntary commitment to a mental institution, that person faces the deprivation of his or her liberty.  It is important to note here that the actual procedure required for the deprivation of what has been deemed to be “liberty” may very well depend on the liberty interest and the parties involved.  With regard to commitment to a mental institution, a different type of procedure is required depending on whether the person who may be committed is an adult or a juvenile.  

Understanding what liberty is, however, is not enough.  Although a liberty interest, such as a fundamental right, might be involved, the due process clause of the Fifth Amendment might not come into play until a person has been deprived of it.  Thus, the next issue one must understand with relation to the due process clause is the meaning of that deprivation.  Luckily, it is far simpler to define what a deprivation is under the Constitution.

A deprivation of liberty essentially includes two things.  First, a person is denied a freedom granted him, either in the Constitution or in some other law.  Secondly, a person is deprived of his liberty when he or she loses freedom of action, where the loss is significant in nature.  Under these two considerations of deprivation, it is not difficult for anyone to make an argument that a deprivation occurred.  Nonetheless, the procedures required by law are not required until such a deprivation happens. 

Amdt9.1 Ninth Amendment: Historical Background Author: Cornell Law School

https://www.law.cornell.edu/constitution-conan/amendment-9/ninth-amendment-historical-background

Ninth Amendment :

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Federalists contended that a bill of rights was unnecessary. They responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that, inasmuch as it would be impossible to list all rights, it would be dangerous to list some and thereby lend support to the argument that government was unrestrained as to those rights not listed. 1  Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”  2  It is clear from its text and from Madison’s statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement. 3

Footnotes 1 The Federalist No. 84 (Alexander Hamilton) (Modern Library ed., 1937).  2 1 Annals of Congress 439 (1789). Earlier, Madison had written to Jefferson: “My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. . . . I have not viewed it in an important light—1. because I conceive that in a certain degree . . . the rights in question are reserved by the manner in which the federal powers are granted. 2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.” 5 Writings of James Madison, 271–72 (G. Hunt ed., 1904). See also 3 J. Story, Commentaries on the Constitution of the United States 1898 (1833).  3 To some extent, the Ninth and  Tenth Amendment s overlap with respect to the question of unenumerated powers, one of the two concerns expressed by Madison, more clearly in his letter to Jefferson but also in his introductory speech.