The Right of Privacy
The Issue:  Does the Constitution protect the right of privacy?  If so, what aspects of privacy receive protection?



inculcating in students "ideas and sentiments foreign to the best interests of this country."  The Court, however, in a 7 to 2 decision written by Justice McReynolds concluded that the state failed to show a compelling need to infringe upon the rights of parents and teachers to decide what course of education is best for young students.  Justice McReynolds wrote:



The privacy doctrine of the 1920s gained renewed life in the Warren Court of the 1960s when, in Griswold v Connecticut (1965), the Court struck down a state law prohibiting the possession, sale, and distribution of contraceptives to married couples.  Different justifications were offered for the conclusion, ranging from Court's opinion by Justice Douglas that saw the "penumbras" and "emanations" of various Bill of Rights guarantees as creating "a zone of privacy," to Justice Goldberg's partial reliance on the Ninth Amendment's reference to "other rights retained by the people," to Justice Harlan's decision arguing that the Fourteenth Amendment's liberty clause forbade the state from engaging in conduct (such as search of marital bedrooms for evidence of illicit contraceptives) that was inconsistent with a government based "on the concept of ordered liberty."

In 1969, the Court unanimously concluded that the right of privacy protected an individual's right to possess and view pornography (including  pornography that might be the basis for a criminal prosecution against its manufacturer or distributor) in his own home.  Drawing support for the Court's decision from both the First and Fourth Amendments, Justice Marshall wrote in Stanley v Georgia:



The Supreme Court said in the 1977 case of Moore v. East Cleveland that "the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in the Nation's history and tradition."  Moore found privacy protection for an extended family's choice of living arrangements, striking down a housing ordinance that prohibited a grandmother from living together with her two grandsons.  Writing for the Court, Justice Powell said, "The choice of relatives in this degree of kinship to live together may not lightly be denied by the state."





Meyer v Nebraska (1923)
Griswold v Connecticut (1965)
Stanley v Georgia (1969)
Ravin v State (1975)
Kelley v Johnson (1976)
Moore v East Cleveland (1977)
Cruzan v. Missouri Dep't. of Health (1990)
Lawrence v Texas (2003)

Estelle Griswold, of the Planned Parenthood League, whose lawsuit led to the invalidation of a state law banning contraceptives.


Amendment I
(Privacy of Beliefs)

Amendment III
(Privacy of the Home)

Amendment IV
(Privacy of the Person and Possessions)

Amendment IX
(More General Protection for Privacy?)

Liberty Clause of the Fourteenth Amendment
without due process of law.

Tyron Garner and John Lawrence (with their attorney), the gay men
who successfully challenged Texas's sodomy law.


1.  Assuming that there exists a general right of privacy, what sort of conduct to you think lies at its very center?  What sort of conduct lies at its periphery?  What sort of conduct should be considered outside of the protection of a reasonably interpreted right of privacy?
2.  Is there a stronger basis in the Constitution for protecting personal privacy rights as opposed to personal economic rights, such as the liberty of contract recognized in Lochner v New York?
3.  When the state burdens an important privacy right, what sort of justification should the state have to make to sustain its regulation?  What arguments would be likely to convince the U. S. Supreme Court (unlike the Alaska Supreme Court) that the Constitution protects the right to possess obscene materials but not marijuana or other drugs?
4.  Some state constitutions provide express protection for privacy.  Would you favor including such a provision in your state's constitution?  What wording would you suggest for a constitutional amendment protecting privacy?
5.  The Constitution has been interpreted to protect the right to marry, as well as the right to live a homosexual lifestyle.  Should it also be interpreted to protect the right of homosexuals to marry?
6.  Are a person's choices with respect to personal appearance protected by the Constitution?  Should the Constitution protect the right of students or police officers to wear their hair in any style they see fit?  Why or why not?  Would a tax on beards, such as the one adopted by Peter the Great, be constitutional?
7.  The choice of a woman to have an abortion was found in Roe v Wade to be the sort of fundamental personal decision deserving privacy protection under the Fourteenth Amendment's liberty clause.  In what respects is abortion a private matter, and in what respects might it not be?  If you don't believe that the Constitution protects the decision to have an abortion, do you believe that it would  prevent the government from forcing a woman to have an abortion and, if it would, what is the constitutional basis for that protection?

Further Reading
The Right to an Abortion
The Right to Marry
The Family & the Constitution

 Gay Rights
The Right to Die
Is Your Home Your Castle?

The most frequently quoted statement by a Supreme Court justice on the subject of privacy comes in Justice Brandeis's dissent in Olmstead v. U. S. (1928):

Exploring Constitutional Conflicts Homepage