BY CIARA TORRES-SPELLISCY | The U.S. Constitution is a sparse 4,400 words. This parsimonious use of language has provided full employment for generations of American lawyers who can argue what gaps in the document mean. The terse Constitution has also allowed generations of justices on the Supreme Court to act as gap-fillers through the adjudication of cases and controversies. One of the words that does not show up among the Constitution’s 4,400 words: privacy.
The Supreme Court has filled that gap by inferring that people in America (not just citizens) have a constitutional right to privacy. There are a few places in the Constitutional text that the justices have located the right to privacy.
The most satisfying is in the Ninth Amendment, part of the Bill of Rights, which says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, the Ninth Amendment says just because a particular right is not mentioned in the text of the Constitution does not mean that people in America do not have it. Thus the Ninth Amendment is a catch-all protection for rights that are not specifically listed. Historically, the Supreme Court has been extremely hesitant to find new rights in the Ninth Amendment because this opens the justices to the criticism that they are just making up rights to suit their own prejudices or whims.
A second source of the right to privacy that justices have relied on for decades are the two due process clauses found in the Fifth Amendment and 14th Amendment. (The Fifth Amendment applies to the federal government, and the 14th applies to the 50 states.) The Supreme Court has used the due process clauses to articulate the protection of fundamental rights including the right to privacy. The 14th Amendment’s due process clause states: “nor shall any State deprive any person of life, liberty, or property, without due process of law…” This word liberty is the textual peg the Supreme Court has used to find the right to contract, the right to marry, the right to intimate relationships, the right to use contraception and the right to abortion. When the Supreme Court rules a right is fundamental using a due process clause, this is known as substantive due process—and reproductive freedoms have long been covered as substantive due process rights.
And a final source of the right to privacy is the shadow of the Bill of Rights. In a case called Griswold v. Connecticut from 1965, the Supreme Court was considering the constitutionality of a Connecticut law that made use of contraceptives by married couples a crime. Justice Douglas wrote in Griswold that privacy could be found in the emanations and penumbra of the Bill of Rights.
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