Why There Is No Constitutional Right to
Privacy, and How to Get One
By Susan Shelley
In 1965, the U.S. Supreme Court struck down a Connecticut
law banning birth control. Justice William O. Douglas wrote, "Specific guarantees
in the Bill of Rights have penumbras, formed by emanations from those guarantees
that help give them life and substance. Various guarantees create zones of
On that vague interpretation rests the constitutional
right to privacy in the United States.
At the time, Justice Potter Stewart wrote in a dissenting
opinion, "With all deference, I can find no such general right of privacy
in the Bill of Rights, in any other part of the Constitution, or in any case
ever before decided by this Court."
Justice Stewart was joined by Justice Hugo Black,
who four years earlier had criticized a colleague's draft opinion in another
case for relying on "some imaginary and unknown fragment designated as the
'right of privacy.'"
It is worth remembering, as abortion rights and gay
rights survive by the grace of Justice Douglas' hazy vision, that the Bill
of Rights itself did not apply to the states until well into the 20th century.
In the 1900 case of Maxwell v. Dow, the Court said the first ten
amendments to the Constitution "were not intended to and did not have any
effect upon the powers of the respective states," adding, "This has been
many times decided."
The Supreme Court has spent the last 75 or so years
building an edifice of constitutional rights on what is known as the
Incorporation Doctrine, the idea that certain guarantees in the Bill of Rights
are so fundamental to the concept of due process of law that they must apply
to the states through the Fourteenth Amendment, which bars any state from
denying due process of law to any person.
The problem with this doctrine arises when the Court
tries to determine which rights are "fundamental" enough to incorporate,
and to what extent. "Some are in and some are out," Justice Felix Frankfurter
observed in 1947, "but we are left in the dark as to which are in and which
Justice Frankfurter identified the dilemma: "If the
basis of selection is merely that those provisions of the first eight Amendments
are incorporated which commend themselves to individual justices as indispensable
to the dignity and happiness of a free man," he wrote, "we are thrown back
to a merely subjective test."
The Supreme Court decided in 1973 to protect a woman's
right to privacy in the first trimester of pregnancy and thirty years later
to protect the privacy of gay couples from state sodomy laws. Yet supporters
of these rights can find little security in these decisions, which could
be eroded or overturned by a future Court with a different view of what is
"indispensable to the dignity and happiness of a free man."
There is another way. We can amend the Constitution
to create a right of privacy that would be beyond the reach of any future
court or Congress.
A constitutional amendment requires a two-thirds vote
of the House and the Senate (or a constitutional convention called by two-thirds
of the states), followed by the ratification of three-quarters of the states.
That means any amendment must reflect the will of a solid majority of the
country in order to have a chance of success.
Roll up your sleeves.
An amendment to secure abortion rights might look
Neither the United States nor any State shall make
or enforce any law infringing a woman's right to privacy in the first trimester
of pregnancy, or unreasonably infringing a fetus' right to life in the third
trimester of pregnancy.
This would effectively "constitutionalize" Roe
v. Wade and would finally get the abortion issue out of our courts, out
of the Senate confirmation hearings for federal judges, and out of our
An amendment to protect privacy rights behind bedroom
doors might look like this:
1. Neither the United States nor any State shall make
or enforce any law restricting private, non-commercial sexual activity between
2. Marriage in the United States shall be between a
man and a woman.
Locking this language into the Constitution will take
away what our current state of vagueness offers: the possibility that the
courts may give the force of law to policies that would never have a chance
of passage in a legislature. This amendment would secure sexual privacy rights
for gays and others while preserving the legal institution of traditional
marriage, and if thirty-eight states are going to ratify it, you need both.
Finally, no discussion of privacy rights can ignore
the new fears raised by the unending war on terrorism. An amendment to protect
the privacy of Americans from overzealous federal officials might look like
The United States Government shall not collect, retain
or disseminate information on individual citizens for national security purposes
without a warrant, unless authorized by a law which has been passed by a
two-thirds vote of each house of Congress.
The Constitution, many esteemed judges have said, is
a living document. But it does not live in a cage in the basement of the
Supreme Court building, behind a door marked "Authorized Personnel Only."
If the American people want a constitutional right to privacy, it is in their
power to create one.
September 6, 2003
© Copyright 2003 by Susan
The Justice Douglas quotation is from Griswold
v. Connecticut, 381 U.S. 479 (1965), at 484.
The Justice Stewart quotation is from the same
decision, at 530.
The Justice Black quotation is taken from a
letter from Hugo L. Black to Tom C. Clark, June 15, 1961. Tom C. Clark Papers,
Tarlton Law Library, University of Texas; cited in Bernard Schwartz, Super
Chief: Earl Warren and His Supreme Court--A Judicial Biography 397-8
Maxwell v. Dow, 176 U.S. 581 (1900),
The Justice Frankfurter quotation is from
Adamson v. California, 332 U.S. 46 (1947), at 65 .