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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 privacy."

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 are out."

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 like this:

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 presidential elections.

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 consenting adults.

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 this:

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
Susan Shelley is the author of the novel The 37th Amendment, which includes an appendix on "How the First Amendment Came to Protect Topless Dancing." Both are now available in eBook editions from

© Copyright 2003 by Susan Shelley

Source Notes:

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 (1983).

Maxwell v. Dow, 176 U.S. 581 (1900), at 586

The Justice Frankfurter quotation is from Adamson v. California, 332 U.S. 46 (1947), at 65 .

Click the title to read the column

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Susan Shelley is running for Congress in California's 30th District, the west San Fernando Valley.

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