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

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

3. 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

4. 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.

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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”

12. 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

13. 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

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