All Commentary
Wednesday, June 10, 2015

Where Does the Constitution Protect a “Right to Privacy”?

Rights deserve protection, even if the Founders didn't mention them

It’s one of the Supreme Court’s most famous, controversial and consequential decisions. On June 7, 1965, the Court in Griswold v. Connecticut struck down legislation prohibiting the use of contraceptives, relying in part upon a “right of privacy” that appears nowhere in the text of the Constitution.

In so doing, the Court dealt a heavy blow to the notion that the Constitution protects only a handful of textually enumerated rights and revived a broad concept of liberty that can be traced back to the Founding.

Although Griswold was a revolutionary decision, however, that revolution is still incomplete. In order to fulfill its promise, the Court must insist that the government may never restrict people’s peaceful exercise of their liberty without an honest, reasoned justification — whether they seek to speak, pray, use contraceptives, or earn an honest living.

To understand Griswold‘s significance, one must understand the constitutional status quo at the time of the decision. Prior to the New Deal, state and federal courts had used the Fourteenth Amendment’s Due Process of Law Clause to protect broad individual liberty.

Thus, in Meyer v. Nebraska (1923), the Court explained that the liberty protected by the Fourteenth Amendment “denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience.”

In the late 1930s, however, a Court dominated by Roosevelt appointees transformed American judicial review. FDR’s justices believed that the federal government and state governments were being held hostage by a reactionary judiciary that stood in the way of progress, in particular, by protecting economic liberty and property rights — most iconically in Lochner v. New York (1905), in which the Court struck down a state law that limited the number of hours bakers could work in a day or a week.

The Roosevelt Court thus limited judicial protection of individual rights to infringements upon certain of the guarantees (although not all of them) specifically enumerated in the Bill of Rights, as well as laws affecting the political process or targeting the politically powerless.

The Roosevelt Court’s constitutional theory was distilled in a famous footnote in United States v. Carolene Products (1938), known today simply as “Footnote Four.” In Footnote Four, the Court stated that it would offer “regulatory legislation affecting ordinary commercial transactions” a heavy presumption of constitutionality, but that “more searching judicial inquiry” might be called for when enumerated rights are infringed or legislation either curtails the operation of the political process or targets “discrete and insular minorities.”

Footnote Four orthodoxy held sway for decades, during which judicial protection of unenumerated rights (in particular, economic liberty and property rights) reached a nadir.

Then came Griswold.

Justice William O. Douglas, writing for the Griswold majority, reasoned that “specific guarantees” set forth in the Bill of Rights have “penumbras, formed by emanations” from general (nontextual) “guarantees that help give [the guarantees in the Bill of Rights] life and substance.”

He determined that the legislation prohibiting contraceptive use infringed upon a “zone of privacy” created by the interaction between a nontextual right of privacy and the First, Third, Fourth, Fifth, and Ninth Amendments.

Douglas did so while denying that he was reviving Lochner, explicitly stating, “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.”

Justice Hugo Black penned a vigorous and influential dissent. He accused Douglas of relying upon “the same natural law due process philosophy found in Lochner v. New York,” only without acknowledging it. He concluded: “The Due Process Clause… is no less dangerous when used to enforce this Court’s views about personal rights than those about economic rights.”

On Black’s understanding of the relevant history, the Fourteenth Amendment was designed to “incorporate” the protections of the Bill of Rights against the states — and nothing more.

Although Black was no conservative, his criticism of Griswold — informed by what has been dubbed “New Deal Originalism” — has been repeated by conservative critics of the Warren Court’s supposed “activism” for decades. Conservative icon Robert Bork criticized Griswold in nearly identical terms, contending that, because the legislation at issue did not “threaten any [textually] guaranteed freedom,” Griswold was “indistinguishable from Lochner.”

Black and Bork had a point. Douglas’ opinion was a creative but unpersuasive effort to protect individual freedom not explicitly covered by any enumerated rights without authorizing the courts to scrutinize restrictions on economic liberty in any meaningful way.

However, to recognize that the Constitution protects unenumerated rights was to undermine the strict separation between enumerated and unenumerated rights upon which the Court’s jurisprudence had depended since 1938.

It did not help that Douglas refused to define the scope of the unenumerated right he had identified, and, thus, it was not clear how the Court had arrived at its conclusion or where it would go next. The Court had articulated no objective principle that seemed susceptible of consistent application. The “right of privacy” would come to be seen (with some justice) as a jurisprudential tool designed to protect liberty that several justices deemed valuable.

But a consistent principle was, and is, available — ironically, it is the principle that the Court applied in Lochner and Meyer, and one can derive it from Justices Goldberg and Harlan’s concurrences in Griswold. Simply stated, that principle holds that the government must always have a rational, public-oriented justification for restricting people’s liberty.

As Justice Goldberg noted, the Ninth Amendment expressly affirms the existence of unenumerated natural rights and the Fourteenth Amendment prohibits the states from abridging these rights.

Justice Harlan relied entirely and explicitly upon the Fourteenth Amendment and determined that the Connecticut anti-contraception law violated a right that was “implicit in the concept of ordered liberty.” He referred to his dissent in Poe v. Ullman (1961), in which he argued (drawing upon the Court’s Lochner-era cases) that the Due Process of Law Clause protects individuals’ “freedom from all substantial and arbitrary impositions and purposeless restraints.”

Protecting that freedom requires consistent judicial engagement — genuine efforts, grounded in reliable evidence, to determine whether the government is in truth pursuing constitutional ends through means that demonstrably further those ends.

In recent years, the Court has stumbled its way back to a comprehensive understanding of liberty, beyond the artificial dichotomy set forth in Footnote Four. Perhaps the most vivid recent illustration of this development is Lawrence v. Texas (2003), in which the Court brought “freedom of thought, belief, expression, and certain intimate conduct” under the heading of “liberty,” holding that a criminal ban on homosexual sodomy violated the Fourteenth Amendment.

But economic liberty and property rights continue to be disparaged and even denied, thanks to the so-called “rational basis test,” which remains the default setting in constitutional cases that do not involve rights expressly listed in the Constitution’s text.

The Supreme Court has stated that judges applying this “test” are to uphold the government’s actions if there is any conceivable state of facts that could provide a rational basis for them. Judges must disregard credible evidence that the government is pursuing improper ends and invent their own hypothetical justifications (however implausible) if the government’s explanations are insufficiently persuasive.

Griswold‘s revolution will remain incomplete until the Court clarifies that, under our Constitution, there is no such thing as a second-class right, any more than a second-class citizen.

This post first appeared at the Huffington Post.

  • Evan is the Assistant Director of the Center for Judicial Engagement at the Institute for Justice, a libertarian public interest law firm.