Privacy In The Constitution: Direct Or Indirect Mention?

Privacy is not explicitly mentioned in the US Constitution. However, the Supreme Court has inferred a right to privacy from the language of the First, Third, Fourth, Fifth, and Ninth Amendments. This implied right to privacy has been the basis for many significant decisions, including Roe v. Wade, which protected the right to have an abortion, and Lawrence, which extended privacy rights to same-sex couples. While the Constitution does not explicitly mention privacy, it is a foundational principle of many constitutional protections and is considered an outgrowth of protections for individual liberty.

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Privacy is not mentioned in the US Constitution

Privacy is not explicitly mentioned in the US Constitution. However, the Supreme Court has inferred a right to privacy from the language of several amendments. For example, in the 1965 case of Griswold v. Connecticut, the Supreme Court found a right to privacy in the "'penumbras' or 'shadow'" of the First, Third, Fourth, Fifth, and Ninth Amendments. The First Amendment protects the privacy of the home, the Third and Fourth Amendments protect the sanctity of private homes, the Fifth Amendment guarantees the right against self-incrimination, and the Ninth Amendment reserves any rights not named in the Bill of Rights.

The right to privacy has been further extended in subsequent Supreme Court cases. For instance, in Eisenstadt, the Court extended the right to purchase contraceptives to unmarried couples, finding that the right to privacy "inheres in the individual, not the marital couple". In Lawrence, the Court used the Fourteenth Amendment to extend the right to privacy to "persons of the same sex [who choose to] engage in... sexual conduct". The Court held that "the petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime".

The right to privacy is also connected to the concept of ""decisional privacy", or the right to independently control the most personal aspects of our lives and our bodies. This right has been used to protect a person's freedom in medical decision-making, such as in the 1990 case where the Court concluded that "a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment". Decisional privacy has also been used to protect the right to have an abortion, as in the 1973 Roe v. Wade decision. However, the right to privacy was not mentioned in the Constitution, and the Dobbs v. Jackson Women's Health Organization case later overruled Roe v. Wade.

Privacy rights are also related to "informational privacy", or the right to limit the government's disclosure of information about an individual. Lower courts have relied on this right to limit the government's ability to disclose someone's sexual orientation or HIV status. The right to informational privacy has even been extended to prominent public and political figures, as suggested by Chief Justice Warren Burger and Justice William Rehnquist in 1977.

While privacy is not explicitly mentioned in the US Constitution, it is a fundamental concept in American society and has been recognized by the Supreme Court as an outgrowth of protections for individual liberty. Privacy rights are inherent in many of the nation's most cherished and commonly used rights, and their erosion could endanger these connected rights.

The Supreme Court has inferred privacy from the First, Third, Fourth, Fifth, and Ninth Amendments

The right to privacy is not explicitly mentioned in the US Constitution. However, the Supreme Court has inferred this right from the First, Third, Fourth, Fifth, and Ninth Amendments.

In Griswold v. Connecticut (1965), Justice William O. Douglas ruled that the marital relations between a husband and wife were a basic "right of privacy older than the Bill of Rights". He argued that the right to privacy was part of the "penumbra", or shadow, cast by several Amendments. The First Amendment, for instance, protects the freedom to associate privately. The Third Amendment prohibits the quartering of soldiers "in any house" in peacetime without the owner's consent. The Fourth Amendment affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". The Fifth Amendment's Self-Incrimination Clause allows citizens to create a zone of privacy that the government cannot force them to surrender. Finally, the Ninth Amendment reserves to the people any rights not named in the Bill of Rights.

Justice Douglas's ruling in Griswold v. Connecticut laid the foundation for a series of cases on individual freedoms related to sex, marriage, and family. For example, in Eisenstadt, the Supreme Court extended the right to purchase contraceptives to unmarried couples. The Court found that "the constitutionally protected right of privacy inheres in the individual, not the marital couple". In Roe v. Wade, the Court used the right to privacy derived from the Fourteenth Amendment to encompass an individual's right to have an abortion. However, this was later overturned in the Dobbs decision.

In Lawrence v. Texas, the Supreme Court used the Fourteenth Amendment to extend the right to privacy to "persons of the same sex [who choose to] engage in... sexual conduct". The Court held that "the petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime".

While the Supreme Court has inferred a right to privacy from several Amendments, privacy claims often clash with First Amendment rights. For example, individuals may assert a privacy right to be "let alone" when the press reports on their private lives or follows them on private property.

The Fourteenth Amendment has been used to extend privacy rights

The Fourteenth Amendment to the US Constitution is considered one of the most consequential amendments. It addresses citizenship rights and equal protection under the law at all levels of government. The Fourteenth Amendment was a response to issues affecting freed slaves following the American Civil War. The amendment, particularly its first section, is one of the most litigated parts of the Constitution.

The Fourteenth Amendment's Due Process Clause incorporates the Bill of Rights against state governments. The Fifth Amendment's similar clause has been used for the reverse incorporation of the Equal Protection Clause against the federal government. The most commonly used and frequently litigated phrase in the amendment is "equal protection of the laws". This phrase has figured prominently in landmark cases, including Brown v. Board of Education (racial discrimination), Roe v. Wade (reproductive rights), and Lawrence v. Texas (consensual sex).

In Roe v. Wade, the Court used the right to privacy, as derived from the Fourteenth Amendment, and extended the right to encompass an individual's right to have an abortion. The Court held that the right to privacy founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action is broad enough to encompass a woman's decision to terminate her pregnancy. However, after the Dobbs decision, the Court overturned Roe v. Wade, and consequently, the right to abortion no longer falls under the broader right to privacy.

In Lawrence v. Texas, the Supreme Court used the Fourteenth Amendment to extend the right to privacy to "persons of the same sex [who choose to] engage in... sexual conduct." Relying on the Fourteenth Amendment's guarantee of due process, the Court held that the petitioners are entitled to respect for their private lives. The Court further stated that the state cannot demean their existence or control their destiny by making their private sexual conduct a crime.

In Griswold v. Connecticut, the Supreme Court found a right to privacy, derived from the penumbras of other explicitly stated constitutional protections. The Court used the personal protections expressly stated in the First, Third, Fourth, Fifth, and Ninth Amendments to find an implied right to privacy in the Constitution. The right to privacy established in Griswold was then used to find a right to privacy for married couples regarding the right to purchase contraceptives.

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The right to privacy is foundational to other constitutional protections

The right to privacy is a basic law that includes the right of persons to be free from unwarranted publicity. The First Amendment protection of privacy is most robust when the invasion of privacy occurs in the home or in other private places. This is because individuals have a reasonable expectation of privacy in their homes. For example, in Stanley v. Georgia (1969), the Court struck down a Georgia law prohibiting the possession of obscene materials in the home, citing the First Amendment.

The right to privacy also extends to the right to be free from public interference. For instance, individuals may assert a privacy right to be "let alone" when the press reports on their private life or follows them in an intrusive manner. This can sometimes conflict with First Amendment rights, such as freedom of the press. The right to privacy has also been used to protect a person's freedom in medical decision-making, such as in the case of Roe v. Wade, which struck down an abortion law from Texas.

The right to privacy is also related to the concept of decisional privacy, which refers to the right to independently control the most personal aspects of one's life and body. This right is based on the Constitution's assurance that people cannot be "deprived of life, liberty, or property, without due process of law." This "due process clause" appears in the Fifth and Fourteenth Amendments. Decisional privacy has provided the basis for decisions protecting crucial and everyday activities, such as the right to have consensual sex without being sent to jail.

Privacy rights are connected to information technology

While privacy is not explicitly mentioned in the US Constitution, it has been interpreted as a right protected by the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. The Supreme Court has used the Fourteenth Amendment to extend the right to privacy to "persons of the same sex [who choose to] engage in... sexual conduct".

Privacy rights are inherently connected to information technology. The government's ability to access electronic information has raised concerns about the protection of privacy rights. The ACLU works to expand the right to privacy and increase control over personal information, arguing that the Fourth Amendment's protection against unreasonable searches should extend to digital property.

The development of new technologies has altered the balance between privacy and disclosure. The government's access to electronic information allows it to track individuals' digital footprints, which include intimate details such as communications, whereabouts, online searches, purchases, and even health data. This information can be accessed without a warrant, and the government has been accused of excessive secrecy surrounding its surveillance practices.

To address these concerns, privacy laws and protections have been implemented at both the federal and state levels in the US. The federal government passed the US Privacy Act of 1974 to enhance individual privacy protection and establish rules regarding the collection, use, and disclosure of personal information. Additionally, states like California, Colorado, and Connecticut have passed privacy laws that provide additional protections for their residents, such as the right to know what personal data is being collected and the right to opt out of the sale of personal data.

However, the US lags behind European Union countries in protecting privacy online. The EU's "right to be forgotten" ruling and the General Data Protection Regulation (GDPR) provide stronger protections for individuals' privacy and data.

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