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The Supreme Court at the Tipping Point: The Right to Privacy

by Professor Will Huhn on July 7, 2008

in Constitutional Law,Government,Wilson Huhn

     If additional justices who share the views of Justices Scalia and Thomas are appointed to the Supreme Court, one of the most significant changes that is likely to occur is that the Court will restrict or perhaps even completely abandon the concept of "the right to privacy." A bit of constitutional history can place this subject in context.

     The Preamble of the Constitution and the Fifth and Fourteenth Amendments protect the "liberty" of the people, and the Ninth Amendment states that the Bill of Rights is not an exclusive list of our fundamental rights – that there are other "unenumerated" rights. In 1897 Louis Brandeis wrote an article entitled "The Right to Privacy" in which he argued that people have a constitutional right to make certain decisions without governmental interference. In the 1920s the Supreme Court recognized the existence of one significant unenumerated fundamental right – the right of parents to direct the education of their children by sending them to private schools or allowing them to study a foreign language. After President Franklin Roosevelt's judicial appointees took office in the late 1930s and early 1940s, the Court vastly expanded its understanding of our unenumerated rights. In 1942, in the case of Skinner v. Oklahoma, Supreme Court struck down an Oklahoma law that allowed the State to sterilize convicted felons. Speaking for a unanimous Supreme Court, Justice William O. Douglas stated, "Marriage and procreation are fundamental to the very existence and survival of the race," and when a prisoner is sterilized, "He is forever deprived of a basic liberty." Since Skinner the Supreme Court has recognized a number of rights as belonging to what Douglas called "the right to privacy," including the right to marry, use contraception, to live with members of your extended family, and to refuse lifesaving medical treatment.

     In 2003, in the case of Lawrence v. Texas, Justice Anthony Kennedy explained why "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education" deserve constitutional protection. He said:

     These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

     Justice Scalia has criticized Justice Kennedy's description of the right to privacy, and he characterized the foregoing portion of Kennedy's opinion as "the sweet-mystery-of-life" passage. Justice Scalia does not utterly rule out the concept of unenumerated rights, but he takes the position that the only rights we have involve activities that traditionally have never been regulated by the government. He has stated, "It is my position that the term âfundamental rights' should be limited to interests traditionally protected by our society."

     The core of the dispute between Justice Scalia and Justice Kennedy is whether our constitutional right to "liberty" is measured by tradition or by the effect a law has upon our personal lives. Justice Scalia and the conservative wing of the Supreme Court take the position that a law is unconstitutional only if it impinges upon an activity that has never been regulated by government – only a law that departs from tradition could possibly violate an unenumerated right. In contrast, Justice Kennedy and the liberal wing of the Supreme Court believe the constitutionality of a law must be measured by the degree that a law impinges upon our personal lives and the strength of the government's justification for the law. Under the right to privacy as currently understood by the Supreme Court, people have the right to make decisions about intimate aspects of their lives without undue interference from the government.

    Two particular aspects of the right to privacy will be overruled if the views of Justice Scalia prevail – gay rights and abortion. These topics will be the subject of subsequent essays in this series.

Wilson Huhn is a Professor of Constitutional Law at The University of Akron School of Law. This is the second in a series of ten essays describing how the interpretation of the Constitution may be affected by the 2008 Presidential election.


Dan July 11, 2008 at 2:58 pm

What exactly is the primary definition of 'liberty', and has it changed from the time of it's inclusion in our Constitution? Same question for 'privacy'. Since the physical methods and opportunities for 'invasion of privacy' by governments, law enforcement agencies, and others have changed so much over time; shouldn't we attempt to clearly define those terms with specific reference to intimate vs physical vs economic vs electronic freedoms?

If the definitions of terms are open to change based on the opinions of clearly biased Justices, what's the point of having established Constitutional Laws? Every four years a slate of proposed national laws could be included as part of the Presidential candidates' platforms. At least that way the voting public could decide how it wants 'liberty' defined.

Professor Will Huhn July 15, 2008 at 7:54 am

You make a good point. The word "liberty" is very ambiguous, although that is also true of many other terms used in the Constitution such as "due process" and "equal protection." There are different ways to approach the definition of these terms. Like Justice Scalia, you might choose to define liberty, equality, and fairness solely by reference to tradition – what are the the traditional activities that people were free to engage in, who was considered to be equal traditionally, and what are the traditional procedures that our courts, police, and administrative agencies have followed? Or you might choose to interpret these terms the way that the courts have traditionally interpreted them if you feel bound by precedent. There is another way to interpret these terms, however. You might take the position that "liberty" is being allowed to do what you want to do, at least with respect to your personal life, so long as you are not harming people. You might argue that the principle of equality requires the government to treat people the same so long as they really are essentially the same in the relevant context. And you might also consider fairness to be an evolving concept, one that demands that the government not treat people in an arbitrary fashion. I personally believe that the framers considered these ideas of liberty, equality, and fairness to be transcendent, universal principles – ideas that they were willing to fight and die for. They knew that their society was not perfect, but they wrote the Constitution in broad terms so that we and our descendents could carry on the task of creating a "more perfect union." I do not contest the legitimacy of Justice Scalia's tradition approach to constitutional interpretation, but I find it to be unworthy of the devotion with which Americans have traditionally regarded the Constitution.

Mommytodd April 22, 2010 at 10:41 am

I am amazed at what people are ingnorant to in regards to their AMERICAN RIGHTS .. my son had said something in open conversation in school about getting spanked on his but (he's 13) with a belt when he was caught being "bad". The school filed a 51a against me regarding abuse and neglect. I hate that DCF thinks it's above the LAW..under the Constitution, both United States and the Massachusetts Constitution, it is my right to religous belief and right to privacy to make child rearing decisions. I want people to know there is a fine line between abuse and discipline, and my child is not and never has been abused, and cleary stated this to the teacher, however, parents who may go through this, it is your right , to spank out of discipline ONLY, without the Government poking their ugly faces up in your business. Get PROACTIVE people, KNOW YOUR RIGHTS, IT'S YOUR RIGHT !!!!!!

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