Constitutional Right to Privacy

There is no Constitutional Right to Privacy in the United States. There’s really no guaranteed right to privacy at all. I don’t even know if there could be such a thing, but I long for it.

This thread isn’t to debate whether there SHOULD be a right to privacy. It’s to debate whether there COULD be one, and how it could be written.

Esther Dyson already said we have no privacy; get over it. Our personal information is being shared all across Corporate America and the Internet. Paparazzi invade celebrity privacy in horrendous ways. City-dwellers have their pictures taken over 100 times per day by security cameras, ATM cameras, traffic cameras, and more. The USA PATRIOT Act allows Federal officials to demand lists of what you’ve checked out at the library or purchased at bookstores or Web sites without probable cause or warrant–and the library or store is under automatic gag order so they can’t even tell you your privacy has been invaded.

I understand that certain people (those convicted for felonies, for example) have basically waived their right to privacy, but the rest of us haven’t. If we want to be able to read what we wish, go where we wish, and do what we wish without someone looking over our shoulder and take notes, how could that be accomplished?

If you could put through a constitutional amendment guaranteeing personal privacy, what would it say?

I don’t think a “right to privacy,” as such, could be legally meaningful. You’d have to define what “privacy” is, and it’s easier just to specify exactly what we should have the right not to have done to us. For example, the Fourth Amendment already protects us against unreasonable searches and seizures, which is one form of “right to provacy.”

Actually there is a right to privacy in the constitution…sort of.

You are correct that it is not explicitly stated. But the Supreme Court has held that a right to privacy is essentially inherent in the 9th Amendment as well as the 3rd, 4th and 5th Amendments (to some extent).

The way our system works that makes it a constitutional guarantee to some degree or other (no one can write a law that flies in the face of those rulings as they have the force of a constitutional guarantee). However, presumably the SCOTUS could overturn rulings that hinged on a right to privacy and essentially wash it out of the system but that is not likely in most cases…Roe could possibly get dinged here. Only by explicitly writing it into the Constitution would the SCOTUS be bound to abide by it.

The Supreme court seems to feel there is one. It found it in Griswold v Connecticut.

According to Justice Douglas:

This reasoning led to the decisions in Roe v. Wade and Lawrence v. Texas.

Some scholars find the court’s reasoning, with it’s “penumbras” and “emanations,” rather suspect.

From the California Constitution:

Contrary to the OP assertion, there is an explicit right to privacy in the Constitution, just not as broad as one might desire in a more nearly perfect world.

Remember that the Constitution’s guarantees of rights deal with what Government is restricted from infringing. If you are a child of religious parents, and your parents teach you to believe in God and to pray to Him, your First Amendment rights have not been infringed. If a judge or public school principal, acting in official capacity. decides you need to believe in God and pray to Him, then they have been infringed. Likewise if the newspaper editor declines to publish your letter condemning President Bush, your First Amendment freedom of speech has not been infringed. But if the city council passes an ordinance prohibiting publication of such letters, then it has.

No governmental figure acting in his official capacity has any power to enter upon your person or property except according to due process of law as spelled out in the amendment and relevant statute and case law depending on it. You have a right to keep your personal affairs private from governmental invasion up to the point where the court finds probable cause to suspect you are violating the law.

That does not mean that other private individuals may not invade your privacy – subject to whatever limits you see fit to put upon them. Most people would not be inclined to have a nosy neighbor arrested for trespass, disconnect one’s telephone to prevent nuisance calls, etc., but those options remain open to protect one’s privacy from invasion by non-governmental action.

Justice Douglas’s language in Griswold has been mocked by one school of onstitutional interpretation. But the ‘penumbras and emanations’ language is just another say of saying, “There are logical inferences from the guarantees.” My classic example is, Would it be pemissible for the police to assign a patrolman to remain in your presence 24 hours a day, going into the bathroom to watch you use the toilet, observing you shower, spending the night standing in your bedroom, etc., so long as he does not conduct an illegal search or seizure of you or your possessions. I think it’s safe to say this would be considered to be a Fourth Amendment violation, or an infringement of Fifth/Fourteenth Amendment due process of law.

Griswold found that the choice of whether to use contraception was part of one’s privacy, not subject to government regulation. The right to autonomy in one’s personal associations with others was similarly found to be sacrosanct in Lawrence v. Texas. It doesn’t matter whether a guest in your home is there to play Canasta or engage in hot monkey sex; it’s not the state’s business.

These are logical inferences from what is explicitly guaranteed, not something “made up by activist judges out of whole cloth.” No matter what people who willingly defend the supposed power of the government to torture confessions might have to say about it.

Even better might be, “There are necessary and sufficient conditions for the guarantee to obtain.” But it sounds so nerdy, and you know how judges are.