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RIGHT TO PRIVACY AND THE INTENT OF THE FOUNDERS
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MODERN IMPLICATIONS OF THE RIGHT TO PRIVACY
AND THE INTENT OF THE FOUNDERS
GOVT 421
AMERICAN CONSTITUTIONAL HISTORY
LIBERTY UNIVERSITY
SAVANNAH NALLS
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The debate of the right to privacy has recently resurfaced as the government has been
simultaneously promoting the right of privacy while surprisingly hindering it at the same time.
While there have been an increasingly amount of supreme court cases surrounding the right to
privacy in abortion and same-sex relations cases, the government is also increasing its
surveillance through the National Security Association on the basis of protecting the country
from terrorists. This odd phenomena of the government both restricting and expanding the right
to privacy has been the subject of much debate. While not specifically enumerated within the
Constitution, many argue that the right to privacy is one which is imperative for all free
democracies and one that the Framers of the Constitution would have supported. However, the
modern implementation of the right to privacy, would most likely be strongly rejected by the
founders.
I. The Constitution Supports the Right to Privacy
Despite the fact that the U.S Constitution contains no express right to privacy, the Bill of
Rights does reflect concerns of privacy of beliefs (first amendment), privacy of the home (third
amendment), privacy of the person and possessions against unreasonable searches (fourth
amendment), and the privacy of personal information (fifth amendment). While the Constitution
has been shown to imply the importance of privacy, some people urge that this application of the
right to privacy in the modern era has expanded to include issues that would not be accepted by
the early founders.
In 1965, for the first time ever, the Supreme Court recognized the right to privacy within
Griswold v. Connecticut in response to a law banning the use of any device, drug, or instrument
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which would prevent conception.1 By a vote of 7–2, the Supreme Court invalidated the law on
the grounds that it violated the "right to marital privacy", establishing the basis for the right to
privacy with respect to intimate practices.2 Ultimately, Griswold v. Connecticut would be the first
of many cases supporting the right to privacy.
According to St. George Tucker of Virginia, the author of the American edition of
Blackstone, it is best to interpret the Constitution strictly.3 He advocated that while the
Constitution should not necessarily be interpreted narrowly in every instance, it is imperative to
use a strict construction analysis in instances which where the rights of the states is in question.4
Therefore, when looking at the Constitution through the lens of St. George Tucker, it seems that
he would most likely advocate that the states should have the ability to discern the implied rights
of privacy especially when considering gay rights and abortion as these are issues not
specifically granted to the federal government.
The other method of viewing the Constitution is through the loose constructionist
perspective. Unlike the strict constructionist view, the loose constructionists do not care about
the original meaning of the Constitution but rather what the Framers intended when drafting the
Constitution altogether.5 Due to the fact that many of the Framers of the Constitution had a
Christian worldview, it even seems that the right to privacy as depicted within Griswold v.
Connecticut would not have been the intent of the founders and therefore would not be
supported by strict constructionists.
1 Griswold v. Connecticut, 381 U.S. 479.
2 IBID
3 McCellan, James (2011) On Liberty, Order, and Justice 2nd ed. Worzalla Publishing Company.
4 IBID
5 IBID
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If one was interested in discovering the intent of the founders, he or she should look no
further than the Federalist papers which lay as the framework for the Constitution. James
Madison, in Federalist 45 declares that the powers of the federal government are few and
specifically defined while the state government powers are “numerous and indefinite”.6 Clearly,
the issues of sexual morality is a power delegated to the state as there is not specific mention of it
being a power granted to the Federal Government. In fact, the American founders believed that
moral and religious issues are meant to be decided by the local consensus.7
While most of the founders would not approve of abortion there were a few exceptions. One
such example was that of Thomas Jefferson who declared within his Notes on the State of
Virginia, that for Native American women, “Childbearing becomes extremely inconvenient to
them,” he also describes his admiration for the native people as termination of their pregnancies
proved to be one of the “ingenious ways they have adapted to their challenging environment”. 8
Ultimately, both the strict constructionists and the loose constructionist emphasize the
importance of the rights of the states and as a result, would reject the finding of Griswold v.
Connecticut. The strict constructionists would have a difficult time advocating for abortion as a
federal issue when there is no mentioning within the Constitution as a right specifically
enumerated. Additionally, even loose constructionists would have a difficult time advocating for
the promotion of abortion through the federal government as they define the Constitution
through the lenses of the intent of the founders.
6 Madison, James, Federalist No. 45, in the Federalist Ed. George W. Carey and James McCellan (Indianapolis, Liberty Fund, 2001).
7 Stripling, Scott. (1995) The New Federalist: America’s Founding Documents and Abortion, Ashland University.
8 Kowalski, Gary. (2012) The Founding Fathers and Abortion in Colonial America, American Creation.
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II. Privacy in Modern America
Since Griswold v. Connecticut there have been numerous of other supreme court cases
reinforcing the right to privacy (Roe v. Wade, Lawrence v. Texas, Whole Woman’s Health v.
Hellerstedt).8-10 Most of these cases have been in regards to sexual freedoms such as abortion or
privacy of homosexual relationships. In Justice Anthony opinion of Lawrence v. Texas he wrote,
"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”.11 While it is doubtful the founders would approve of increasing
privacy for abortion and relationships for homosexuals, the founders would support the right to
privacy as a method of reducing governmental tyranny. In fact, Benjamin Franklin once said one
of the main responsibilities of being a citizen was to constantly question government authority.12
Interestingly enough, while the modern American government has decided to promote the
importance of privacy more than ever in regard to sexual relationships and abortions, the
executive branch has decided to violate the privacy of American citizens more than ever through
its implementation of the National Security Association which has violated the privacy of
8 Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, 1973 U.S. LEXIS 159 (U.S. Jan. 22, 1973)
9 Lawrence v. Texas, 539 US 558 (2003).
10 Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016)
11 IBID
12 Stachowiak, Jim. (2013) Tyranny: The Founding Fathers Took a Stand Against it Now It Is Our Turn, Freedom Outpost.
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American citizens through eavesdropping on all telephone communication, emails, and internet
metadata. Ultimately, these developments have been found to disregard the desires of the
American populous as most citizens prefer the right to privacy over security. In fact, a recent
survey discover that the majority of the respondents (53%) thought that the collection and use of
their data by businesses, law enforcement, individuals, and other groups violated personal
privacy and individual liberty while only thirty eight percent (38%) thought the collection and
use of their data was a positive development. 13
III. Christian Perspective of Right to Privacy
Through a Christian perspective, the modern application of the right to privacy for sexual
freedoms is very concerning as God views abortion as murder and sexual relationships as
adultery. Additionally, while the Bible does not explicitly speak towards the undemocratic
principles of tyrannous government which disregards the privacy of its citizens, Scripture does
uphold the value of privacy. The Lord informs us to “aspire to live quietly, and to mind your own
affairs” (1 Thessalonians 4:11). However, while Christians are meant to refrain from involving
themselves in others affairs it is important to realize that “nothing covered up that will not be
revealed, or hidden that will not be known,” as God knows everything (Luke 12:2-3).
Ultimately, while the Constitutional right to privacy is one which while not specifically
listed in the Constitution, it is implied and would have been supported by the founding fathers.
However, it is unlikely that the founders, given their large Christian influence, would have
supported the right to privacy in instances of abortion and gay relationships.
13 Davis, Lauren C. (2016) How do Americans Weigh Privacy Versus Security, The Atlantic.
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References
Davis, Lauren C. (2016) How do Americans Weigh Privacy Versus Security, The Atlantic.
Griswold v. Connecticut, 381 U.S. 479.
Johnson, John W. (2005). Griswold V. Connecticut. University of Kansas. pp. 8–10.
Kowalski, Gary. (2012) The Founding Fathers and Abortion in Colonial America, American
Creation.
Lawrence v. Texas, 539 US 558 (2003).
Madison, James, Federalist No. 45, in the Federalist Ed. George W. Carey and James McCellan
(Indianapolis, Liberty Fund, 2001).
McCellan, James (2011) On Liberty, Order, and Justice 2nd ed. Worzalla Publishing Company.
Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, 1973 U.S. LEXIS 159 (U.S. Jan. 22,
1973)
Stachowiak, Jim. (2013) Tyranny: The Founding Fathers Took a Stand Against it Now It Is Our
Turn, Freedom Outpost.
Stripling, Scott. (1995) The New Federalist: America’s Founding Documents and Abortion,
Ashland University.
5 Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016)
