Independence Day: Ghosts of SCOTUS on the fundamental right to privacy

If the of ghosts of SCOTUS choose any day to walk the DOJ halls to see how America is faring in “balancing” justice, technology, surveillance and civil liberties, then it would surely be on the Fourth of July. Last year on America’s birthday, we looked at what the heck happened to the Constitution in this digital age. As We the People celebrate Independence Day, 236 years after the adoption of the Declaration of Independence, let’s look at some Constitutional safeguards put into play long ago to protect our privacy.

James Madison, the fourth U.S. President and a framer of the Constitution, had pointed out the dangers of inaccuracy resulting from the fact that ‘no language is so copious as to supply words and phrases for every complex idea’.” What is privacy if not complex?

While the Constitution may not specifically state the right to privacy, the Bill of Rights most assuredly protects aspects of privacy. In 1965, the Supreme Court ruled 7-2 on the landmark case, Griswold v. Connecticut, and the Justices referenced the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth Amendments in regards to the right to privacy. Justice Stewart did not agree, but noted, “In the course of its opinion, the Court refers to no less than six Amendments to the Constitution.” Justice Hugo Black’s opinion stated, “‘Privacy’ is a broad, abstract and ambiguous concept.”

Griswold was very important and has been mentioned over and again in regard to privacy, but it actually dealt with “right of marital privacy” and concluded that privacy “is within the penumbra of specific guarantees of the Bill of Rights.” A penumbra is a partially shaded or shadowy area, and those shades of gray still seem to sum up the fight for the fundamental right to privacy in the current clash of technology and civil liberties. Put more simply, the First Amendment (privacy of beliefs and freedom of speech), the Third (privacy of the home), the Fourth (the right to be secure against unreasonable searches and seizures), the Fifth (the right not to incriminate yourself – plead the Fifth!), the Ninth, and the Fourteenth Amendments (the right to due process) all work together to create a right to privacy zone that cannot be overly invaded.

We hear a lot about the First, Fourth and even Fifth Amendments, but in Griswold it was said, “the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.” And what is it that we usually hear about privacy and the Constitution? That it does not specifically state the right to privacy, but in Griswold it states, “the Ninth Amendment simply shows the intent of the Constitution’s authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments.”

The Fourteenth Amendment also had a privacy impact in Griswold as UMKC School of Law explained:

Different justifications were offered for the conclusion, ranging from Court’s opinion by Justice Douglas that saw the “penumbras” and “emanations” of various Bill of Rights guarantees as creating “a zone of privacy,” to Justice Goldberg’s partial reliance on the Ninth Amendment’s reference to “other rights retained by the people,” to Justice Harlan’s decision arguing that the Fourteenth Amendment’s liberty clause forbade the state from engaging in conduct that was inconsistent with a government based “on the concept of ordered liberty.”

You may have known all of that, but SCOTUS considered all these factors and amendments in rulings that still affect Americans’ privacy today. Such decisions are recorded on Find Law:

In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the “traditions and [collective] conscience of our people” to determine whether a principle is “so rooted [there] . . . as to be ranked as fundamental.” The inquiry is whether a right involved “is of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions’. “Liberty” also “gains content from the emanations of . . . specific [constitutional] guarantees” and “from experience with the requirements of a free society.”

The fundamental right to privacy was eloquently penned in the dissenting opinion of Justice Louis D. Brandeis in Olmstead v. United States:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. . . . 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.

Oh yes, privacy is a fundamental right of We the People, an “unalienable right” of “Life, Liberty and the pursuit of Happiness.” Happy birthday, USA!

Be safe, have fun and enjoy Independence Day!

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