The Supreme Court’s Flawed Privacy Jurispudence

The “right to privacy” is not mentioned in the Constitution of the United States. In fact, the first time the term gained prominence was when Samuel Warren and future Supreme Court Justice Louis Brandeis wrote a treatise entitled the “Right to Privacy” in the Harvard Law Review in 1890, detailing when private communications can be made public. Yet throughout the past century, the constitutional right to privacy has been debated repeatedly, and has become a controversial source of cultural debate in both the legislative and judicial arenas. The Supreme Court has, mostly in the last fifty years, created a Constitutional right to privacy that has inhibited state legislatures and Congress from making laws prohibiting contraception use, interracial marriage, sodomy, and abortion. I will use two key Supreme Court decisions in these areas dealing with this controversial right, review the constitutional rationale of the Court in these cases, and critique the application of privacy rights to show that the Court decided many of these cases improperly because they were judicial usurpations of legislatures’ constitutional power.

One of the first Supreme Court cases that made use of a constitutional “right to privacy” was Griswold v. Connecticut (1965). The appellants, who were medical practitioners, challenged their conviction for violating a Connecticut statute forbidding the use or distribution of contraceptives to a married couple. Justice William Douglas, delivering the opinion of the Court, ruled that the statute was unconstitutional when applied to infringe the ability of married couples to purchase contraceptives. Douglas ruled based on penumbras created by the guarantees of the Bill of Rights, incorporated to pertain to the states by the Fourteenth Amendment. The Court argued that the First, Third, Fourth, Fifth, and Ninth Amendments create a “penumbra where privacy is protected from government intrusion.” Concurring in judgment, Justice Harlan argued that the right to privacy in marriage comes from the Due Process Clause of the Fourteenth Amendment, claimed that their liberty was being infringed, but that the use of the incorporation of the Bill of Rights was flawed reasoning. Justice Goldberg thought the case should be decided predominantly on Ninth Amendment grounds, believing that the right of privacy in marriage is one of the rights not enumerated by the Constitution, but that was worthy of protection.

Looking at the Constitution very differently than the majority, Justices Black and Stewart dissented in Griswold. Writing separately, both expressed personal opposition to the Connecticut Statute, but did not see a constitutional rationale for invalidating it. Justice Stewart aptly pointed out that the Court referred to six Amendments, but “does not say which of these Amendments, if any, it thinks is infringed by the Connecticut law.” Both argue that there is no constitutional right to privacy; rather certain aspects of privacy are protected by specific provisions in the Bill of Rights. These Justices found nothing in the First, Third, Fourth, or Fifth Amendments to invalidate the Connecticut statute, and could find no historical precedent for using the Ninth Amendment in such a fashion. Relying on the expressed intensions of James Madison, Justice Stewart wrote that the Ninth Amendment was “adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States.” To use it to annul a law, the dissenters reasoned, had never been done before, and the Court was misinterpreting the intent of the statute.

With Griswold, the Court incorporated contraceptive decisions as a individuals constitutional right, paving the way for its landmark abortion decision, Roe v. Wade (1973). Abortion is probably the most controversial subject today in U.S. constitutional law. In creating a right to obtain an abortion, the Supreme Court used many of the same reasons used in the contraception cases. When Roe v. Wade was decided, thirty-one states had laws banning the practice except to save the life of the mother. Historically, to varying degrees based upon the viability of the fetus, abortion was a criminal act in most states. In 1973 the Court granted certiorari to Ms. “Roe,” a Texas woman who argued that the statute forbidding her to obtain an abortion violated her privacy and Due Process rights guaranteed by the Constitution. In 1970, a three-judge Federal District Court panel ruled that the “‘fundamental right […] to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment’ and that the Texas criminal abortion statute […] constitutes an overbroad infringement of the plaintiffs’ Ninth Amendment rights.” The Supreme Court agreed that using the Ninth Amendment’s unenumerated rights was a rational basis for invalidating the Texas statute, but instead chose to use substantive Due Process to invalidate it, concluding that abortion was a fundamental right. Furthermore, the Court reasserted the proposition, citing Griswold, that a right of personal privacy does exist in the Constitution through penumbras of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Whether it is found in the conception of liberty in the Fourteenth Amendment or in the Ninth Amendment’s reservation of rights, the Court found that the right of privacy was broad enough to include a woman’s decision whether to terminate a pregnancy.

Using historical and medical evidence, the opinion went on to guide the States on how they would be constitutionally permitted to regulate abortion in congruence with Roe. The Court categorized abortion as a fundamental, but not an absolute right, and thus the State could show certain compelling interests at different times in a pregnancy. The Court concluded that, during the first trimester of pregnancy, the state has no compelling interest in regulating abortions, and thus cannot do so. During the time after the first trimester, but before viability, the Court said that in the interest of promoting the health of the mother, states may regulate abortion in ways “reasonably related to maternal health.” Finally, the Court ruled that after the viability stage, the state has an interest in protecting potential human life, and that it can regulate, or even forbid abortion, except when it is performed to protect the health or life of the mother. Dissenting, then-Associate Justice Rehnquist argued that liberty as guaranteed by the Fourteenth Amendment is not guaranteed absolutely, but only against deprivation without due process of law, which had been construed by prior Courts to be applicable only when legislation does not have a “rational relation to a valid state objective.” Rehnquist argued that a total ban on first trimester regulation is unjustifiable under this standard. Furthermore, he noted that by breaking pregnancy into three different phases (fairly arbitrary in terms of fetal viability) and outlining what is permissible for the States to regulate in each phase, the Court “partakes more of judicial legislation than it does to a determination of the intent of the drafters of the Fourteenth Amendment.”

The rights to use contraceptives, obtain an abortion, and partake in private sexual activity have now been guaranteed as Constitutional rights through judicial fiat. These decisions constitute judicial usurpations of legislative prerogatives that are inconsistent with the language and history of the Constitution. Whether or not they make for better public policy is a question under our constitutional framework that should be left to the elected branches of government. Instead, the Supreme Court has chosen to impose its own policy beliefs onto the states and the people under the illusion of constitutional reasoning. The Court’s rationale for claiming that a right of privacy exists in the Constitution is tenuous at best. It appears that the Court cannot decide whether using the Due Process Clause’s substantive right to liberty or whether creating a right to privacy by amalgamating numerous Amendments in the Bill of Rights and their “penumbras formed by emanations” of specific constitutional guarantees is most appropriate. Today, few Americans believe that contraceptives should be outlawed and rarely does anyone call for Griswold to be reversed. Yet, Griswold was the catalyst for the later decisions that dealt with policy areas that are much more controversial. Griswold laid down the constitutional rationale for those cases by creating a right of privacy that goes beyond those privacies specifically guaranteed in the Constitution. Robert P. George, a professor of jurisprudence at Princeton, rightly argues that conceding that Griswold was properly decided gives greater legitimacy to the holdings in Roe. The Griswold Court claimed that there was no purposeful interest to uphold the Connecticut statute, but discouraging non-marital sexual relations through the use of contraceptives is the sort of moral legislation that the Supreme Court had upheld prior to Griswold. Furthermore, by using a novel constitutional interpretation that looked at the penumbras of several Amendments combined to create a far-reaching right to privacy, the Court set the framework for additional far-reaching interpretations of the Constitution in Roe.

The Supreme Court has shown itself quite willing to act as a super-legislature when an issue comes before it on which a majority of the members have a strong personal opinion. When campaigning for ratification of the Constitution in 1788, Alexander Hamilton wrote in The Federalist No. 78, “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGEMENT, the consequence would equally be the substitution of their pleasure to that of a legislative body.” The Supreme Court, in their rulings in Griswold and Roe, went beyond their power under our constitutional framework, as Hamilton warned against. Because these decisions were wrongly decided, they should be overturned, which would not break the principles of stare decisis.

As Justices Hugo Black and Potter Stewart aptly pointed out, there is a fundamental difference between a bad and an unconstitutional law. These men understood that the Court was creating a “right of privacy” in order to “cloak a naked policy preference.” Even though they both thought the law being overturned was bad public policy, and surely they would have voted to repeal the law if they were members of the Connecticut Legislature, they understood that the law was within the state’s power to promote safety, public health, and morals. By adding Constitutional rights through judicial edict with little historical of constitutional rationale, the right to privacy has inconsistent applications that make the justices appear more like judicial legislators than constitutional interpreters. Our founding fathers did not create the judiciary to usurp so much power from the legislative bodies of this nation. This trend should be reversed so that the elected representatives of the people, not lifetime appointees of the President and Senate, have the power to make this nation’s laws.