How the Court Killed Privacy

How the Court Killed Privacy

"Privacy and the American Constitution" by David J. Garrow, in Social Research (Spring 2001), 65 Fifth Ave., Rm. 354, New York, N.Y. 10003.

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Does the Constitution guarantee a right to privacy? In the minds of most Americans, landmark Supreme Court decisions such as Griswold v. Connecticut (1965) and Roe v. Wade (1973) established and defined such a right. But legal scholars assaulted the reasoning behind those decisions so successfully that the Court was long ago forced to rethink—and reject—privacy as a constitutional right.

Griswold, which struck down a state prohibition on contraceptive use by couples, is the pivotal case responsible for both the construction and the eventual collapse of the right to privacy as a constitutional concept. In his seven-page majority opinion, Justice William O. Douglas famously wrote that "specific guarantees in the Bill of Rights have penumbras, formed by emanations of those guarantees that help give them life and substance." In those penumbras Douglas discovered the right to privacy.

The Court had been working up to an articulation of such a right since the late 19th century. As young lawyers, Louis Brandeis and Samuel Warren had introduced it in an 1890 Harvard Law Review essay titled "The Right to Privacy," in which they advocated legal protection for "the private life, habits, acts, and relations of an individual." Brandeis’s dissents as a Supreme Court justice in the 1920s carried the torch for an individual’s right to privacy.

Twice in 1940s the Court alluded to privacy rights in majority decisions.

While Griswold catalyzed young lawyers and activists of the late 1960s to use its protection of reproductive privacy to bring and win cases such as Roe, which established the right to abortion, many constitutional specialists found fault with Douglas’s opinion. The decision was correct, they argued, but his reasoning was too shaky and his language too nebulous to hold up as the foundational legal argument for right-to-privacy cases. Matters weren’t helped by Justice Harry A. Blackmun’s 51-page decision in Roe, which leaned on Griswold but struggled to find solid footing for the right to privacy. Legal critics from all points on the political spectrum pounced on the underlying reasoning. Harvard’s Lawrence H. Tribe did not criticize the result but expressed regret that "the substantive judgment on which [Roe] rests is nowhere to be found."

One of the leading critics of Griswold and Roe was Judge Robert Bork, and his 1987 Supreme Court nomination foundered in large part because of his uncompromising rejection of the constitutional right to privacy that grew out of Griswold. Ironically, that right was already all but dead in the minds of constitutional scholars.

The Court reacted to criticism of Griswold and Roe by affirming those decisions in substance while rebuilding the argument underneath them. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), a landmark case in which the Court reaffirmed Roe, three of the five justices in the majority found that "choices central to personal dignity and autonomy" such as abortion fall under "the liberty protected by the Fourteenth Amendment." The Casey trio made no mention of the "p-word."

Constitutional scholars applauded Casey, and the Court has shunned the right to privacy, as a term and as a concept, ever since—though it does recognize a zone of privacy created by the Fourth Amendment ban on unreasonable searches and seizures. It’s "sad," Garrow thinks, that America’s elite legal commentators have killed off a constitutional right most Americans think they possess—and at precisely the moment when new technologies are raising fresh concerns about individual privacy.



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