Appointments to the U.S. Supreme Court
The concept of personal privacy
The concept of personal privacy:
One of the major differences between strict constructionist and liberal justices
involves the principle of
personal privacy. In the past, a majority of justices have found this to be implicit in the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution
and elsewhere. Section 1 of the 14th Amendment states:
"All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws."
The due process clause is emphasized above. 2
Free Dictionary states:
"Due process of law is a legal concept that ensures the government will respect
all of a person's legal rights instead of just some or most of those legal
rights, when the government deprives a person of life, liberty, or property. Due
process has also been interpreted as placing limitations on laws and legal
proceedings in order to guarantee fundamental fairness, justice and liberty"
to all citizens.
A majority of justices of the Supreme Court has determined that the due process clause implies
that governments cannot pass legislation that intrudes too deeply into the
personal life of its citizens. That is, there are limits to the ability of states to
control personal behavior.
The belief that the constitution limits the degree of intrusion by the state
into areas of personal privacy began with the 1961 case of Griswold v.
Connecticut. Estelle Griswold, executive director at the time of the Planned
Parenthood League of Connecticut, and Dr. C. Lee Buxton of Yale
University's Medical School, opened a small birth control clinic in downtown
New Haven, CT. They were arrested within days on a charge of dispensing
contraceptives to a married couple.
This may sound ludicrous today. We see governments are promoting the use of
condoms to prevent transmission of AIDS and other STDs. Pharmacies have a
bewildering array of condoms on display next to headache remedies and vitamins.
However, this case originated almost two generations ago, when social norms were
very different. The defendants were found guilty and fined $100 each. They launched a
lawsuit which reached the Supreme Court in 1965. Seven out of nine judges:
that a zone of privacy protecting birth control inheres in what the justices
variously called a 'penumbra' (a shaded rim between darkness and light) of the
Constitution or in 'emanations' from specific provisions in the Bill of Rights,
such as protection from unwarranted search and seizure. In other words, although
the Constitution and the Bill of Rights do not explicitly guarantee privacy
rights to individuals, such rights were said to be implicit within them."
This case laid the groundwork for
Loving v. Virginia in 1967 which legalized
inter-racial marriages across the U.S.
||Eisenstadt v. Baird in 1972 which confirmed the right to privacy and
gave unmarried women access to contraceptives.
||Roe v. Wade in 1973 which gave women free access to early abortions.
Lawrence v. Texas in 2003 which declared
laws restricting sexual behavior by adults in private to be unconstitutional.
If and when a case similar to Loving v. Virginia that attempts to legalize
same-sex marriage reaches the Supreme Court, it will probably be decided
primarily on the basis of the due process clause.
Mr. Justice Stewart referred to the Fourteen Amendment in 1973 when he issued a concurring statement
in Roe v. Wade. He
wrote, in part:
therefore, the Court today is correct in holding that the right asserted by Jane Roe is
embraced within the personal liberty protected by the Due Process Clause of the Fourteenth
Amendment. It is evident that the Texas abortion statute infringes that right directly.
Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom
than that worked by the inflexible criminal statute now in force in Texas."
Under this clause, the U.S. Supreme Court has "...recognized such rights and
the right to an early abortion, the right to use contraceptives, [and] the right to
medical treatment..." 2 For opposite-sex couples, the court has also
recognized "...the right to marry." 2 In mid-2003, the court based its
Lawrence v. Texas
ruling on the right to privacy. That decision gave both homosexual and heterosexual adults the right to
engage in private consensual sexual activities, even if most of the public
consider the behavior to be immoral. The state cannot intrude into the bedrooms
of the nation and impose the majority's moral beliefs on the entire public.
However, the right to privacy is not
explicitly stated in the Constitution. Thus most, if not all, strict
constructionists do not recognize this right. They believe that there are no
limits on the intrusions that governments can make into people's lives. States
could pass laws outlawing access to contraceptives, access to abortion,
sexual or other behavior that a legislator feels is immoral, etc. Those
laws would probably be found to be constitutional if a majority of justices are strict
As an example, a bill is working its way
through the Wisconson legislature which would prevent
university students having access to emergency
contraception. With today's makeup of the Supreme Court, if the bill were to
become law, it would probably be declared unconstitutional because it would
violate the students' right to privacy. Under a court with one or two additional
strict constructionist justices, it might well be declared constitutional.
On 2005-JUL-19, President Bush nominated John G. Roberts, "a rigid
conservative" as his selection to replace retiring Justice O'Connor. Roberts
co-wrote a brief for President H.W. Bush saying that Roe v. Wade -- the Supreme
Court decision that legalized early abortions -- should be overturned because it
has no basis in the U.S. Constitution -- that is, that the Constitution does not
explicitly guarantee a right to privacy, and thus such a right does not exist.
4 He was deputy solicitor
general in 1990 during the first Bush administration when he argued a case in
which he said that Roe v. Wade "was wrongly decided and should be overruled."
However, he told senators at his 2003 confirmation hearing on his appointment to
the Appeals Court that he was merely acting as an advocate for his client. At
that time, he told senators Roe was "the settled law of the land." He
said that: "there's nothing in my personal views that would prevent me from
fully and faithfully applying that precedent." Some have interpreted this to
mean that he is not personally opposed to abortion access, even though he is a
Roman Catholic. Others suggest that his comment means that as a judge at the
appeals court level, he would be compelled to follow the precedent set by the
Supreme Court when it freely allowed early abortions, even though he might feel
that it was wrong. 5
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
"Due process," The Free Dictionary, at:
"Encyclopedia: United States Constitution/Amendment Fourteen,"
Right to Privacy May Be Taken Away by a New Supreme Court," History
Tim Harper, "Battle brews over Bus court nominee," The Toronto Star,
2005-JUL-20, Page A1 (front page.) Online at:
"Bush nominates Roberts to Supreme Court. Republicans praise nominee as
Dems vow thorough review," CNN News, 2005-JUL-20, at:
Copyright © 2003-2009 by Ontario Consultants on
Latest update: 2009-JUL-16
Author: B.A. Robinson