The Right to Privacy in the Constitution

Photo of CCTV cameras

Privacy, a Constitutional Concept

Privacy is a right we all hold dear in many forms. We want to know that we have the right to privacy within our own homes and can live our lifestyles the way we choose. 

We also want to be sure that companies and medics aren’t going to share confidential information with third parties. 

There are limits to what we want to share and how much we trust government surveillance.

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Is the right to privacy a constitutional right?

We might assume that the right to privacy is a constitutional right, but is this the case? 

What does the Constitution say about our right to privacy?

Does the Constitution Stipulate a Right to Privacy?

No straightforward amendment or article in the Constitution mentions the right to privacy in the way most of us would define it. 

We might expect there to be a clause that states that all Americans have the right to a private life and private activities and beliefs within their own home. 

Generally, society goes by the rule that what we do behind closed doors is our own business unless it is harmful in some way to others. But, this is not a Constitutional right.

This raises two important points. 

Privacy rights implied in the Bill of Rights

The first is that while the notion isn’t a direct part of the Bill of Rights, it is heavily implied. 

US Congress
Federal and state laws are implemented to protect privacy.

Second, this implication has allowed for an evolving process with state and federal laws that help privacy protection. 

It is also important to note that the United States Supreme Court deliberately takes a case-by-case approach because of changing expectations, circumstances, and new ways that privacy becomes an issue.

What Does the Constitution Say About the Right to Privacy?

The notion of a constitutional right to privacy is taken from an implied right via different articles and amendments. Considering these protections about freedoms and liberties, there is the idea that Americans do have a right to privacy. There isn’t anything set in stone, though.

Essential parts of the Constitution that relate to this issue include the following. 

The 1st Amendment: Privacy of beliefs

Under the 1st Amendment, the people of the United States have a series of basic freedoms on how they express themselves. This typically relates to freedom of speech, freedom of the press, and freedom of religious expression. 

man wearing baseball cap
Freedom of speech is guaranteed by the 1st Amendment.

In turn, this creates an assumption that we have the constitutional right to carry out religious practices with privacy.

The 3rd Amendment: Privacy of the home against the use for housing soldiers

The Third Amendment doesn’t have much bearing on the modern world as it is unlikely we will have to harbor armed forces members in a domestic conflict. But, this does tie into ideas of privacy within someone’s personal property. 

The 4th Amendment: Protection against unreasonable searches

Similar to the above concerning privacy within the home, the Fourth Amendment states that no one can search possessions and property without good reason or a warrant. 

The 9th Amendment: Protection of rights not mentioned in the Constitution

The Ninth Amendment states that, 

“the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The idea is that certain rights are not covered that the government has no right to violate. This may be the most important when creating new laws to protect rights to privacy and personal beliefs. 

The 14th Amendment: The protection of personal freedoms

The Fourteenth Amendment is where the Constitution goes a little deeper into personal liberties. It says that,

“no state should deprive any person of life, liberty, or property.”

It clearly states that the people have certain freedoms that the state cannot remove. This allows for new laws that can help strengthen the sentiment and afford better protection. 

private property
The 14th Amendment concerns personal liberties.

The Right to Privacy Within Statutory Law

There may not be any simple Constitutional article to use whenever there is an issue of privacy invasion, but the combined implications from the Constitution allow for clearer statutory laws. 

Over time, cases emerge where the rights of citizens are questioned concerning the aims or proposed laws from the government.

Certain laws or proposals may be deemed unconstitutional or just ruled out based on how they inhibit the people’s freedoms. 

Informational privacy in the 20th century

Across the 20th century, we have seen cases like this that related to family law, health, marriage, and reproductive rights. 

Privacy please sign
Many citizens prefer to zealously guard their privacy.

Some of those are still highly contentious today and pose similar questions about citizens’ rights to privacy and personal choice. Many of these relate to reproductive rights and the protection to do what we please with our bodies. 

Reproductive Rights and the Right to Privacy

Abortion laws are a great example of all this because they are still contested today. 

Does the person seeking an abortion have the right to choose to have the child and the privacy to carry out procedures without others knowing? 

Reproductive freedom sign
Abortion laws remain controversial in the United States.

States still lean towards the fetus’s rights over the privacy and rights of beliefs of the parents.

This is also where using the 1st Amendment in decisions about individual privacy causes issues. 

On the one side, you have the right to believe in abortion and to live the life you want. On the other, the right to religious pro-life beliefs may inform law-making in states with a large religious community.

Personal privacy and HIPAA

Furthermore, the privacy issue in medical situations and constitutional rights ties in with HIPAA – the Health Insurance Portability and Accountability Act of 1996. This protects the confidentiality of patients regarding their medical history.

A key factor in creating laws and rulings for the people’s privacy and personal data protection comes down to the idea of liberty more than privacy. 

Constitutional law vs. governmental intrusion

It is easier to use Constitutional articles to work with this concept of citizens’ freedoms and then apply this to their rights. 

In turn, you get rulings on reproductive rights that are more about the freedoms of the potential victim rather than a mention of their right to private beliefs. 

Supreme Court protest
The Supreme Court officially reversed its Roe vs. Wade decision in 2022.

In 1965, the case of Griswold v. Connecticut led to the ruling that a statewide ban on the use of contraceptives in state law would violate the right to marital privacy. 

Then, in 1973, the case of Roe vs. Wade ruled that the Constitution of the United States protected a pregnant woman’s freedom to have an abortion without “excessive government restriction.”

The Right to Privacy in an Online World

The case-by-case approach of the Supreme Court for rulings on the people’s rights and protections makes sense because people’s needs evolve with time. 

Any amendment to the right to privacy created in the 1970s would have no provision for anything related to online privacy and digital personal data. There is always a need for updated privacy law and new acts to deal with new situations.

Data protection and individual privacy

Data protection is a big issue as we see breaches from tech companies with personal information available online.

Photo of computer screen
Data protection is a concern, particularly in relation to big tech.

There are also concerns about how much companies or government agencies can learn from our online activities. The creation of the Children Online Privacy Protection Act was a start, but there will be more rulings and cases in the future as the world becomes ever more interconnected. 

The Right to Privacy Through Personal Freedoms Only Goes so Far

Some may fear this adaptable approach because the new ruling could allow for freedoms that take things too far. Many cases are open to debate based on the circumstances, and the ruling may not apply to all. 

A balance must be found between upholding the rights of those who feel victimized and their impact on their decisions. This won’t always lead to a satisfactory conclusion.

Police officer
Kelley vs. Johnson in 1976 saw police officers fight for their right to have facial hair.

One such case was Kelley vs. Johnson in 1976, where police officers fought for their right to have facial hair. One interpretation of this was that the choice to have facial hair was not worthy of protection and that the policies of the police force should stand. 

However, there are religious connotations where facial hair is important, which would take us back to the freedom of beliefs in the 1st Amendment. 

The Right to Privacy in the Constitution

The Constitution may not directly mention the right to privacy, but the implications are enough to allow for personal privacy and protection laws. 

The idea of citizens having rights not spelled out in the document goes a long way when it comes to providing laws for the privacy of information, freedom of expression, and freedom regarding reproductive and relationship choices.

The basic freedoms in the Bill of Rights are a starting point, as is the protection of personal liberties and property. When this all comes together, the Supreme Court has the authority to rule against potential invasions of privacy and better protect citizens’ privacy. 

 

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