The Right to Privacy I Foundations of the Right Lecture 29 Chapter 10 The Right to Privacy I Foundations of the Right

This Lecture Chapter 10 Pages 390-401 Foundation of the Right to Privacy Griswold v. Connecticut (1965)

Where does this right come from? The word privacy does not appear anywhere in the Constitution The state of being free from unwan ted or undue intrusion or disturban ce in one's private life or affairs; free dom to be let alone- Dictionary definition But if you read several of the amendments together, it seems to be implied 1st, 3rd, 4th, 5th, 9th and 14th

Olmstead v. United States (1928) Justice Brandeis seemed to introduce the new tort of invasion of privacy in a law review article before he entered the Court Question was whether wiretapped telephone conversations were prohibited by the 4th and 5th Amendments Taft, C.J. for a 5-4 Court said they were not Brandeis, J. disagreed The framers of the Constitution sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. It is for this reason that they established, as against the government, the right to be let alone as the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Lochner v. New York (1905) Lochner v. New York (1905) This is the case involving the number of hours a baker could work Economic substantive due process case Court ruled that the government could not interfere with the rights of an employer and employee to make a contract violated the Liberty Clause of the 14th Amendment One had to show a direct relationship between the means and the ends of a law The Economic Substantive Due Process claims threw out many, many laws until 1937 Including child labor and minimum wages

Meyer v. Nebraska (1923) Meyer v. Nebraska (1923) Challenge to a law prohibiting instruction of German or other foreign languages to children below 8th grade Was in response to WWI Struck down under Liberty Clause beyond the right to contract Arbitrary, capricious or unreasonable were reasons to strike down a statute Most statutes struck down were economic ones, not regulation of things deeply personal

Poe v. Ullman (1961) Poe v. Ullman (1961) Challenge to a Connecticut law prohibiting the law of birth control, by everyone Case dismissed in a 5-4 ruling by Frankfurter, J. on the grounds that the statute had never been ever enforced Harlan, J. has a dissent (he is also from Connecticut) This enactment involves what, by common understanding throughout the English-speaking world, must be granted to be a most fundamental aspect of "liberty," the privacy of the home in its most basic sense, and it is this which requires that the statute be subjected to "strict scrutiny” So he thinks laws implying a Liberty interest require strict scrutiny analysis He extends Brandeis’ analysis to things personal However, Harlan seemed to want to limit to married heterosexual couples later in his dissent

Griswold v. Connecticut (1965) Background This is another challenge to the law in Poe Griswold was the director at a local Planned Parenthood Office She opened a birth control clinic with the intent of being prosecuted So that the law could be challenged She was arrested for distributing birth control to a married couple

Griswold v. Connecticut- II Arguments For Griswold The laws violate the Liberty Clause and Due Process Clause of the 14th Amendment These are fundamental rights, meaning Connecticut is due less deference As a health/moral statute, it is overbroad and arbitrary This is an invasion of privacy as found in 3rd, 4th, 5th, 9th and 14th Amendments For Connecticut This is a proper exercise of state powers Similar state laws have been upheld and it does not foreclose all birth control methods There is no invasion of privacy

Griswold v. Connecticut- III Douglas, J. for a 7-2 Court The law is struck down The “penumbra” argument as the origin of the right to privacy Peripheral rights coming from the rights Elements of the 1st, 3rd, 4th, 5th, and 9th Amendments are about privacy The right to privacy is older than the Constitution itself Protection against governmental intrusion Note that this law was only dealing with married couples and contraception Limits to the right to privacy are now subject to strict scrutiny The real question will be what gets classified under the right to privacy

Griswold v. Connecticut- IV Goldberg, J. joined by Warren, C.J. and Brennan, J. concurring Says that the concept of liberty is not restricted to the specific terms of the Bill of Rights He makes more of a 9th Amendment argument Right to privacy was retained by the people “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” Makes the Bill of Rights not a limited list of rights (think Hamilton) Right to privacy is a fundamental right emanating “from the totality of the constitutional scheme under which we live”

Griswold v. Connecticut- V Harlan, J. concurring in judgment He agrees with the outcome but not the reasoning He finds simply a 14th Amendment Due Process/Liberty Clause violation He need not look at the other amendments White, J. concurring in judgment He sees also a 14th Amendment violation Sees governmental intrusion in family life When there is a significant encroachment on person liberty, the government may only prevail if there is a compelling interest He says Connecticut did not meet this

Griswold v. Connecticut- VI Black, J. dissenting, joined by Stewart, J. Individual amendments should be read individually Right to privacy found nowhere in the Constitution Also does not buy the Due Process or 9th Amendment arguments This takes away state power to make laws Methods for change are by constitutional amendment or local legislative changes Stewart, J. dissenting, joined by Black, J. Calls this a silly law He disagrees with the law However, he cannot strike it down that is up to the people of Connecticut to repeal it He finds no right to privacy in the Bill of Rights

Next Lecture Chapter 10 401-415 The Right to Abortion I Roe v. Wade (1973) We will cover abortion rights up to 1992 (Casey)