Guest editorial: The Right to Privacy 

Editor’s Note: This is the fourth in a series of guest editorials running between now and July 4, our nation’s Independence Day. These essays were solicited by the Franklin County League of Women Voters for The Recorder from several especially knowledgeable and experienced members of our community, about issues as important to America today as when our country was born with our forefather’s Declaration of Independence.

The right to privacy is the idea that there are areas of life that should be safeguarded against governmental intrusion. Although a reasonable expectation of privacy is considered one of our fundamental rights, it is not mentioned in the Constitution or the Bill of Rights. There is no clause, or wording, in these founding documents that clearly shows the Framers’ intent to protect privacy. Instead, the Declaration of Independence states “all men are created equal; that they are endowed by their Creator with inherent and inalienable rights; that among these, are life, liberty, and the pursuit of happiness…” Somewhere in these Enlightenment ideas resides the principle of privacy. After all, some autonomy is required for one to achieve “life, liberty and the pursuit of happiness”.

The lack of specific language related to privacy in the founding documents also leads to a continued debate surrounding whether judges should read the Constitution according to original intent, plain meaning of the text, or based upon evolving contemporary principles. In U.S. legal history, the right to privacy was formally recognized during the late nineteenth century. Early privacy cases concerned issues of contracts and property rights. This isn’t surprising when we consider the context of the time. During the 1880s, the U.S. experienced the coming the of the Second Industrial Revolution. This was an era of explosive manufacturing, the rise of corporations, and westward expansion. At the forefront of law were questions regarding liberty, the rights of workers, and protection of businesses.

In the first privacy case, Boyd v. United States (1886), the Court determined that the Fourth and Fifth Amendments protected against governmental invasions “of the sanctity of a man’s home and the privacies of life.” Here the Court defined the protection against unreasonable searches and seizures, and self-incrimination to be based, in part, on the fundamental right of privacy.

The Court expanded acknowledged privacy rights to include areas of child-rearing in the 1920s. In the case of Meyer v. State of Nebraska (1923) a state law prohibited educators from teaching school children other languages besides English. This law emerged in response to the outcomes of World War I, the rise of nationalism and Anti-German sentiment. The Supreme Court determined that restricting available knowledge and access to private education was an infringement of First Amendment rights to free speech and press.

By the 1960s, the context of Constitutional protections was driven, in part, by the civil rights and women’s movements. Just as the founding principle that “all men are created equal” expanded to include women and people of color, so were the definitions of privacy expanded. In Griswold v. Connecticut (1965), Justice Douglas delivered the majority opinion on whether a state could restrict a married couple’s access to birth control. The Court determined that earlier cases proved that protections under the Bill of Rights went beyond specific words. “Without those peripheral rights the specific rights would be less secure.” Looking to the precedent set in the Court’s earlier protection of education in the Meyers case, the Court reasoned that a married couples’ rights include privacy in the bedroom in which the state had no right to investigate.

This “zone of privacy” was interwoven within various parts of the Bill of Rights. Douglas pointed to the First, Third, Fourth, Fifth, and the Ninth Amendments as places where privacy protections exist. There were dissenting voices in this case. Justice Black and Stewart reasoned that establishing a zone of privacy was equivalent to “diluting or expanding a constitutionally guaranteed right … to substitute for the crucial word or words, more or less flexible and more or less restricted in meaning.” Herein lies the argument against interpreting the meaning of specific language to include additional protections.

This debate over privacy interpretations ignited with the 1973 Roe v. Wade decision that added the right of reproduction freedom to the zone of privacy. Personal autonomy and intimate consensual sexual relations were extended under privacy rights in Lawrence v. Texas [2003]. Finally, in Obergefell and Hodges (2015), the Court extended the right of marriage to same-sex couples utilizing privacy arguments made in the 1967 Loving case that ended laws banning interracial marriage.

The continuing debate over these more recent cases derives, in part, from the complexity of the legal definition of privacy. For a concept that is so fundamental to the U.S. system of law, the Framers’ silence on the issue reverberates into our judicial system and ultimately our rights to privacy rests with those members of the Supreme Court.

Alyssa Arnell, chair of History and Global Interdisciplinary Studies at Greenfield Community College, is the author of this piece.