The Constitutional Right to Privacy: Does it Actually Exist?


The right to privacy is something Americans in particular have always held in high regard. This is why we have lock codes on our phones, document shredders and opaque walls as opposed to glass houses. While this is no doubt important, a lot of people are under the impression that the Constitution guarantees privacy. The opposing viewpoint is there is no enumerated right to privacy so the government doesn’t guarantee this right.

In reality the answer lies somewhere in the middle. While it’s true that the right to privacy isn’t explicitly enumerated, there does lie in-between the lines an implication of such. The Third, Fourth and Fifth Amendments in particular help make the argument for the implied right to privacy. The arguments laid out are imperative to a few Supreme Court Cases so that will be the point where we begin.

The Supreme Court Case Griswold v. Connecticut (1965) is considered one of the earliest landmark cases in the idea of the Right to Privacy. Griswold was the Executive Director of the Planned Parenthood in Connecticut. She and another doctor were convicted under Nebraska law because they gave medical advice to married couples concerning birth control. In a 7-2 decision, the court overturned the conviction, stating that this was protected by a plethora of Constitutional Amendments, including the previously discussed First Third and Fourth Amendment.

This is a case where I find myself agreeing with the decision. It might seem at odds with my pro-life stance, but the right of a doctor to recommend something to his patients has nothing to do with a right to privacy. Instead of a right to privacy, this case deals with the free choice regarding medical decisions. Abortion deals with the killing of a separate human life and deals with different moral and legal issues.

Read more on abortion here.

Stanley v. Georgia (1969) is another one dealing with the privacy to do as you will in one’s own home. Mr. Stanley was charged and found guilty under a Georgia Law that specifically forbade the ownership of obscene materials. These materials were found while executing a search warrant in his house for criminal dealings of another nature. The court ruled in favor of Mr. Stanley unanimously, saying that he was protected under the First Amendment as art was a form of free expression and film is considered art.

Finally I would like to take a close look at the largest of all privacy cases brought before the supreme court: Roe v. Wade (1973). In this case Ms. Roe wanted to have an abortion performed in order to prevent having a baby; she was prevented from doing so by Texas law which prohibited abortion save for cases of health endangerment of the mother. The judgement cited precedent in the Griswold case that yes this was protected by the right to stated in the previous case. It was a 7-2 decision basically ensuring that abortion was legal for most everyone in the United States. While this case has caused no amount of controversy to the present day, I will refrain from addressing it here and simply look at it in the context of the Constitutional Right to Privacy.

Before us we have 3 court cases that established through the Supreme Court that the US Citizens have a right to Privacy as guaranteed by the Constitution. The Supreme Court is filled with some of the brightest minds in the nation but as with all government it must be questioned.

Many today are questioning whether or not the Constitution does indeed guarantee this right or if it’s only implied.

I believe based on what I’ve learned during this series that there exists a Constitutional right to privacy, to a certain extent. To elaborate, so long as you aren’t exploiting your right to privacy to the detriment of other US citizens you should be okay. In the case of Mr. Stanley above, he may have been a criminal in one respect but the US Government has no right dictating and legislating morality. I may personally find obscene material reprehensible but that does not mean I get to infringe upon my neighbor’s right to watch pornography in the middle of the day. In a similar vein, the case of Ms. Griswold is one I also agree with when it comes to married couples and their sex life.

The parts that some people take to seriously and extreme, however, I find to be on the opposite side of the coin. People get tied up in knots when it comes to being filmed in public places. There should be no reasonable expectation of privacy in these public places, and in fact there are many states that have laws saying it’s okay to be filmed in these places without your specific consent. Things such as the Planned Parenthood videos taken in a restaurant a few years ago are perfectly legal to be taken since there is no expectation of privacy in a public restaurant.

The hairy part comes into play with the new technology of the 2000s. Smartphones and the availability of the internet has broken the doors to many things people consider most private. It’s no longer strange to be sharing your innermost thoughts to the world since you can do it through the medium of Facebook or Instagram. These are publicly available and yet people feel robbed of their privacy when people take pictures and quotes from their public profiles and use them without their consent.

The terms and conditions of many websites actually prevent them from being sued by this very thing. The entire paragraphs of text that people click “Agree” without reading actually contain parts where some companies outright say they collect data on you. In Facebook’s own Data Policy it states, “We collect the content and other information you provide when you use our Services, including when you sign up for an account, create or share, and message or communicate with others. This can include information in or about the content you provide, such as the location of a photo or the date a file was created. We also collect information about how you use our Services, such as the types of content you view or engage with or the frequency and duration of your activities.” Twitter’s terms of service say, “Irrespective of which country you live in, you authorize us to transfer, store, and use your information in the United States, Ireland, and any other country where we operate.”

The point of this is to show you that while the government can’t necessarily do certain things to infringe on your private life, almost all of what you do online is gathered and stored anyways. It is unreasonable online to expect any modicum of privacy. If the DNC, a government party, and entity that should have some of the highest firewall software available was able to have its servers hacked then you can bet your bottom dollar that Twitter and Facebook are vulnerable as well. The government can’t stop everyone and private companies are certainly not beholden to the Constitution.

It’s easy to forget that despite how ubiquitous platforms like Facebook and Twitter are that they are not beholden to Constitutional law like the governments are. The government can attempt to pass legislation to restrict them, but ultimately that is the only way that they are able

to control these companies. While the Constitution does protect a reasonable amount of privacy, this argument does not apply to privately owned corporations.

In conclusion the Right to Privacy does exist within the bounds of the specific amendments such as the 4th and 5th. The only way to expand these privacy rights is by Constitutional Amendment. Using the courts as a bludgeon to impose a non-Constitutional right to privacy goes directly against the intent of the Courts to be the arbiter between the States and the Federal Government.

The Supreme Court has been legislating from the bench for decades which goes directly against the intent of the founders in regards to separation of powers.


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