Whether the Constitution guarantees a right to privacy has long been debated. Surprisingly, many conservatives argue that privacy isn’t even mentioned in the Constitution, so there is no such Constitutional right. Equally surprising, many liberals claim there is such a right. (I will later explain why these positions are surprising.) My position is that there is such a right, and that it is either stated explicitly in the Constitution, or strongly implied. I also assert that there would be such a right – guaranteed by the Constitution – even if the Constitution made no mention of it.
Let’s start with my first assertion. Two centuries ago, when the Constitution was written, the word privacy had a vastly different meaning from what it does today. It generally referred to toilet functions. In other words, when someone went into an outhouse and closed the door, he wanted his privacy – he didn’t want anyone to watch him while he took care of business. So while it’s true the word “privacy” never appears in the Constitution, that’s not really relevant. If we want to translate the modern-day word “privacy” into words used around 1800, we’d have to choose words such as “liberty” or “security.” So let’s examine the Constitution from this viewpoint. Consider the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
What this say is that the government can’t just barge into your home and search it, or take stuff from it, without good reason (probable cause) and a search warrant based upon that probable cause. Sounds somewhat like – in modern language – “you’re entitled to privacy in your own home” – doesn’t it? It also says “secure in their persons” which means you can’t be stopped on the street and searched (or have your stuff taken) without good reason. Kind of like “you’re entitled to privacy even if you’re not at home”. Let’s look at the Third Amendment:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
So the government can’t barge in and force you to quarter troops in your home – ever (during peacetime). And even in war, there has to be a law describing when and how they can do it. Again, this is along the lines of telling the government to butt out – to leave people alone – to respect their privacy – and to violate it only under certain circumstances, following specific procedures. Let’s examine the Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Let’s just look at the highlighted area (emphasis mine). It’s telling the government that, even if you’re charged with a crime, they can’t force you to testify. You’re entitled to some privacy even then.
So I think the Constitution contains – at least – a strong implication of the right to privacy. Anyone who claims it makes no such guarantee would have to explain away the ramifications of the Amendments mentioned above.
But the Constitution goes further. Even if it didn’t state or imply any such right to privacy, it still guarantees it. Let’s first go to the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that ; they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That ; to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That ; whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it . . .
Notice the highlighted words (again, emphasis mine). The Declaration doesn’t say governments endow men with rights, their Creator does. And it doesn’t presume to list the unalienable rights, just some of them (among these are Life, Liberty, and the pursuit of Happiness). It says that governments are instituted in order to secure these rights (not grant them). And, in fact, if the government does not adhere to these ends (securing rights, deriving powers from the consent of the governed), the people have the right to alter or abolish it. So not only does the government not grant rights to the people, any government that becomes destructive of securing rights can expect to be altered or abolished. The Declaration is thus completely incompatible with the idea that “the people only have the rights that are listed in this document.” It’s also incompatible with the idea that the government grants right to people. Instead, the people already possess their rights.
The Constitution continues with this philosophy. Its purpose was not to limit the rights of citizens, but to restrict the powers of government . It assumed that the government only has the powers listed; citizens have all the rights not specifically restricted . One example of this is the Eighteenth Amendment, which allowed Prohibition. Even though the right to drink alcohol is nowhere mentioned in the Constitution, it took a Constitutional Amendment before the Federal Government was allowed to ban alcohol. Citizens were presumed to have the right to possess and drink alcohol (and the government was presumed to lack the power to ban alcohol) unless specifically stated otherwise in the Constitution. The Sixteenth Amendment, which permitted income taxes, also follows this philosophy. Income taxes are not mentioned by the Constitution, so the government was presumed to lack the power to levy them, until the Amendment was added.
Above I noted that conservative opposition to the right of privacy was surprising. Why? Because conservatives claim to want "government off our backs." Insisting that the Constitution has to specifically list people's rights – that the government grants rights, that people do not have inherent rights – seems quite inconsistent with conservative philosophy. Liberals, on the other hand, usually believe in big government, so they could be expected to support this view (that, if it's not listed in the Constitution, it's not a right). Yet, here at least, they believe otherwise.
Thomas Jefferson, who authored the Declaration of Independence, was one of the strongest advocates of adding a Bill of Rights to the Constitution. His attitude was that someday, people may forget the principles on which the country was founded, and that it was therefore necessary to enumerate at least some of the rights of the people. He was certainly correct about that. Not only did the Bill of Rights list several of these rights, it contains the following (the Ninth Amendment):
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This further confirms what I’ve already stated – the fact that the Constitution does not list a right does not mean there is no such right. The Constitution itself says so.
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