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The Constitutional Right of Privacy in the United States: From Here Where?

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Tom. R Hulst
May 23, 2022

As we approach the brink of a Supreme Court ruling regarding the constitutional right to abortion, it is imperative to revisit the historical and legal aspects of privacy policy in the United States. What is privacy and what is a right of privacy early in this new century? “In its most basic sense,” writes Janna Malamud Smith in Private Matters: In Defense of the Personal Life, Seal Press, 2003, “privacy is having control over our bodies, our possessions, our intimate environment and the information other people can gather about us.” In Privacy and Freedom, Atheneum, 1968, Alan Westin identifies four privacy domains, namely, solitude, anonymity, reserve and intimacy. 

The legal-political concept of privacy emerged in the late 19th and early 20th century. Supreme Court Justice Joseph Story wrote about First Amendment guarantees in his Commentaries on the U.S. Constitution. He opined that the freedom of speech, press, assembly and religion clauses secured the rights of “private sentiment” and “private judgment.” In Privacy and Freedom, Atheneum, 1968, Alan Westin quotes Victoria Woodhill’s remark in the 1870’s: “I believe in the law of peace, in the right of privacy, in the sanctity of individual relations. . . I am the champion of that very right of privacy and of individual sovereignty.” 

In 1890, Samuel Warren and Louis Brandeis authored an article in the Harvard Law Review about journalistic intrusion into the privacy of celebrities—as well as non-celebrities. The authors wrote that “instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life, and numerous mechanical devices threaten to make good the prediction that what is whispered in the closet shall be proclaimed from the house-tops.” The article warned about the invasion of the personal spheres of individuals and stressed that people were entitled to human dignity and “personhood.”

U.S. policy on privacy is a complex imbroglio of court decisions, laws and administrative rules. The statutory privacy framework in the United States is currently a patchwork quilt—reflecting the concomitant desires of the citizenry for liberty, quietude and security. After the Supreme Court weighed into the policy sphere in the 1960’s, the U.S. Congress enacted laws related to privacy. The Fair Credit Reporting Act was passed in 1970. The Privacy Act followed in 1974 enacted to protect citizens from the misuse of private information by the government.

U.S. Supreme Court privacy jurisprudence arguably had its genesis in the case of Griswold v. Connecticut in 1965. In Griswold, the Supreme Court ruled on a case that involved a violation by officials of Planned Parenthood of Connecticut’s anti-contraceptive statute. After deliberating over legal doctrines, the Court overturned the Connecticut anti-contraceptive statute. Writing for the Court, Justice William O. Douglas asserted that “the present case concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. We deal with a right of privacy older than the Bill of Rights.” (381 U.S. 479 (1965)).

The Griswold case provided the legal underpinning of additional privacy rights. The Court subsequently invalidated a law prohibiting the distribution of contraceptives to unmarried persons (Eisenstadt v. Baird, 1972); overturned state anti-abortion laws (Roe v. Wade, 1973); struck down state anti-sodomy statutes (Lawrence v. Texas, 2004); and proscribed laws against gay marriage (Obergefell v. Hodges (2015)). In Obergefell Justice Kennedy wrote that, “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” The overall privacy framework, thus, is an important part of the constitutional constellation within the United States. As Justice William O. Douglas wrote in 1958, in The Right of the People, 1958, p. 165, “The right to be let alone, though greatly impaired in recent years, still clamors for recognition. It is a sturdy part of our heritage, more American than European, more Western than Eastern. It cannot be easily stamped out on this continent, for it is a part of all of us. It can be eroded and depreciated. But it will always be one of our great rallying points.”

During its current term, the Supreme Court heard oral arguments concerning Mississippi’s Gestational Age Act—in Dobbs v. Jackson’s Women’s Health. This law forbids abortions after 15 weeks, well before the viability standard set by Roe v. Wade. Mississippi has explicitly asked the Court to overturn Roe, arguing that stare decisis—or precedent—should not prevent the Court from overruling the case. The 1973 decision concerning this privacy right was contentious from the beginning, and therefore, cannot be considered an appropriate legal standard.

How will the Court decree in the abortion cases given the expectation of privacy rights of Americans and 50 years of precedent? How will the Court’s ruling impact other decisions that confer a privacy right? Will the constitutional privacy edifice fall like a house of cards? How will legislators and public administrators govern in the aftermath if the Court suppresses a constitutional right to privacy? Whatever course the Supreme Court chooses in the cases before it this term, it is important for public administrators to provide thought leadership and administrative integrity in managing the right of privacy in America.

Author: Tom R. Hulst received an MA in public administration from Washington State University. He served as policy advisor to Governor Daniel J. Evans, administrator in the State Superintendent Office of Public Instruction, and superintendent of Peninsula School District. He published The Footpaths of Justice William O. Douglas in 2004 and currently teaches political science at Tacoma Community College. 

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