Does the Constitution Guarantee a

1
Does the Constitution Guarantee a Right to
Privacy?

• Amy Albrecht
• Alaina Cominskie
• Colleen Hughes
• Shannon Johnston

2
What is the U.S. Constitution?

• A document created by our founding fathers
  establishing the government of the United States
  with three separate branches Legislative,
  Judicial, and Executive. The constitute ensures
  checks and balances of power among each branch.
• While the Constitution establishes what the
  government can do, the Amendments (Bill of
  Rights) spell out what the government can NOT do.
  
• The Constitution does not establish limitations
  on what people can do, it regulates the
  government.
• Spells out the governments limited rights and/or
  powers

3
Privacy in the Constitution

• The right to privacy is not stated specifically
  in the Constitution.
• However, the Supreme Courts responsibility is to
  decide the constitutionality of a law or
  government action.
• The Supreme Court does not establish laws on
  privacy but prefers to use a case-by-case
  approach to rule on privacy.
• The Constitution is a living document that often
  reflects public opinion.

4
What is the Right to Privacy?

• The right of a person to be free from intrusion
  into matters of a personal nature.
• Right to be let alone, according to Supreme
  Court Justice Brandeis.
• The 4 States of Privacy
• Solitude
• Intimacy
• Anonymity
• Reserve

5

• Solitude
• As close to being alone as one can get
• Free from observation of others
• Intimacy
• This is when a person has the right to chose
  their friend or partner, without concern of what
  others will think
• Anonymity
• Free from identification and supervision
• Reserve
• Free to hold back information that we wish to
  keep to ourselves
• Not forced to disclose information unless a
  person chooses to

6
Does the Constitution support the right to
privacy?

• The majority of Justices on the Supreme Court
  believe the right to privacy to be a basic
  human right.
• Some amendments that are believed to include the
  right of privacy include
• 1st Amendment 4th Amendment
• 5th Amendment 9th Amendment
• 14th Amendment

7
1st Amendment

• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  government for a redress of grievances.

8
4th Amendment

• The right of the people to be secure in their
  persons, houses, papers, and effects, against
  unreasonable searches and seizures, shall no 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.

9
5th 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 offense 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.

10
9th Amendment

• The enumeration in the Constitution, of certain
  rights, shall not be construed to deny or
  disparage others retained by the people.

11
14th Amendment

• Section 1. 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.
• Section 2. Representatives shall be apportioned
  among the several States according to their
  respective numbers, counting the whole number of
  persons in each State, excluding Indians not
  taxed. But when the right to vote at any election
  for the choice of electors for President and Vice
  President of the United States, Representatives
  in Congress, the Executive and Judicial officers
  of a State, or the members of the Legislature
  thereof, is denied to any of the male inhabitants
  of such State, being twenty-one years of age,(See
  Note 15) and citizens of the United States, or in
  any way abridged, except for participation in
  rebellion, or other crime, the basis of
  representation therein shall be reduced in the
  proportion which the number of such male citizens
  shall bear to the whole number of male citizens
  twenty-one years of age in such State.

12
14th Amendment

• Section 3. No person shall be a Senator or
  Representative in Congress, or elector of
  President and Vice President, or hold any office,
  civil or military, under the United States, or
  under any State, who, having previously taken an
  oath, as a member of Congress, or as an officer
  of the United States, or as a member of any State
  legislature, or as an executive or judicial
  officer of any State, to support the Constitution
  of the United States, shall have engaged in
  insurrection or rebellion against the same, or
  given aid or comfort to the enemies thereof. But
  Congress may by a vote of two-thirds of each
  House, remove such disability.
• Section 4. The validity of the public debt of the
  United States, authorized by law, including debts
  incurred for payment of pensions and bounties for
  services in suppressing insurrection or
  rebellion, shall not be questioned. But neither
  the United States nor any State shall assume or
  pay any debt or obligation incurred in aid of
  insurrection or rebellion against the United
  States, or any claim for the loss or emancipation
  of any slave but all such debts, obligations and
  claims shall be held illegal and void.
• Section 5. The Congress shall have power to
  enforce, by appropriate legislation, the
  provisions of this article.

13
Major cases concerning privacy in the U.S.
include

• Griswold v. Connecticut (1965)
• Stanley v. Georgia (1969)
• Roe v. Wade (1973)
• Bowers v. Hardwick (1986)
• Lawrence v. Texas (2003)

14
Griswold v. Connecticut(1965)

• The Issue A Connecticut statute forbids any
  person to obtain any drug or article to prevent
  conception.
• Section 53-32 Any person who uses any drug,
  medicinal article or instrument for the purpose
  of preventing conception shall be fined not less
  than fifty dollars or imprisoned not less than
  sixty days nor more than one year or be both
  fined and imprisoned.
• Section 54-196 Any person who assists, abets,
  counsels, causes, hires or commands another to
  commit any offense may be prosecuted and punished
  if he were the principal offender.

15
Griswold v. Connecticut(1965)

• Planned Parenthood League of Connecticut and
  their Medical Director, a licensed physician,
  were found guilty for supplying materials and
  advice concerning the prevention of contraception
  to a married couple.
• The State considered this topic (birth-control) a
  legitimate state concern.
• It says that preventing the use of birth-control
  devices by married persons helps prevent the
  indulgence by some in such extramarital
  relations.

16
Griswold v. Connecticut(1965)

• The Supreme Court ruled
• Appellants have standing to assert the
  constitutional rights of the married people.
• The Connecticut statute forbidding use of
  contraceptives violates the right of marital
  privacy which is within the penumbra of specific
  guarantees of the Bill of Rights.

17
Griswold v. Connecticut(1965)

• Justice Douglas delivered the opinion of the
  Court
• I believe that the right of privacy in the
  marital relation is fundamental and basic a
  personal right retained by the people within
  the meaning of the Ninth Amendment.
• Connecticut cannot constitutionally abridge this
  fundamental right, which is protected by the
  Fourteenth Amendment from the infringement by the
  States.

18
Griswold v. Connecticut(1965)

• Justice Black and Justice Stewart dissented
• If the married couple had merely been informed
  about contraceptives and their uses, Planned
  Parenthood would be protected by the First and
  Fourteenth Amendments.
• But speech is one thing conduct and physical
  activities are quite another.
• Since the Executive Director examined the wife
  and provided contraceptive devices, they were
  clearly violating the Connecticut law.

19
Stanley v. Georgia(1969)

• The issue State laws prohibiting the possession
  of obscene material.
• Federal and State agents obtained a warrant to
  search Stanleys home for evidence of bookmaking
  activity. Instead of finding evidence of
  bookmaking, the agents found films of obscene
  footage. Stanley was arrested for having them in
  his possession.
• Stanley argued that he has the right to read what
  he pleases.
• Georgia argued using the court decision regarding
  Roth v. U.S. verdict that obscenity is not
  within the area of constitutionally protected
  speech or press, that Stanley was not protected
  and could be prosecuted.

20
Stanley v. Georgia(1969)

• Supreme Court Ruled
• We hold that the 1st and 14th amendments
  prohibit making mere private possession of
  obscene material a crime.
• The Constitution does protect a persons right to
  receive information without regard to its social
  worth.
• Supreme court says, States retain the broad
  power to regulate obscenity, that power simply
  does not extend to mere possession by the
  individual in the privacy of his own home.

21
Stanley v. Georgia(1969)

• Justice Marshall stated that
• -If the First Amendment means anything, it means
  that a State has no business telling a man,
  sitting alone in his own house, what books he may
  read or what films he may watch. Our whole
  constitutional heritage rebels at the thought of
  giving government the power to control men's
  minds.

22
Roe v. Wade(1973)

• The Issue A Texas law enforcing that attempting
  to or procuring an abortion is illegal.
• A pregnant single woman (Roe) brought a class
  action challenging the constitutionality of the
  law.
• A separate lawsuit was brought by an unpregnant
  married couple (Does) also challenging.
• A physician (Hallford) with two state abortion
  prosecutions pending also brought a suit.

23
Roe v. Wade(1973)

• Supreme Court Ruled
• Roe could sue, but Does and Hallford could not.
• The Texas law violates the Due Process Clause of
  the Fourteenth Amendment, which protects state
  action against the right of privacy, including a
  womans qualified right to terminate her
  pregnancy.

24
Roe v. Wade(1973)

• Supreme Court Ruled
• For the stage prior to approximately the end of
  the first trimester, the abortion decision and
  its effectuation must be left to the medical
  judgment of the pregnant womans attending
  physician.
• For the stages subsequent to approximately the
  end of the first trimester, the State, in
  promoting its interest in the health of the
  mother, may, if it chooses, regulate the abortion
  procedure in ways that are reasonably related to
  maternal health.
• The Texas criminal abortion statutes as is are
  unconstitutional.

25
Roe v. Wade(1973)

• Justice Blackmun delivers opinion The
  Constitution does not explicitly mention any
  right of privacy. In a line of decisions,
  however, going back perhaps as far as 1891, the
  Court has recognized that a right of personal
  privacy, or guarantee of certain areas or zones
  of privacy, does exist under the Constitution. In
  varying contexts the Court or individual Justices
  have indeed found at least the roots of that
  right in the First Amendment, or in the concept
  of liberty guaranteed by the first section of the
  Fourteenth Amendment.

26
Bowers v. Hardwick(1986)

• The issue A Georgia statute that criminalized
  sodomy. (Georgia Criminal Code 16-6-2)
• A bartender for a gay bar, Michael Hardwick was
  arrested for having oral sex with his partner in
  his home.
• The charges were dropped but Hardwick attempted
  to have the sodomy law declared unconstitutional.

27
Bowers v. Hardwick(1986)

• A person commits the offense of sodomy when he
  performs or submits to any sexual act involving
  the sex organs of one person and the mouth or
  anus of another.
• The sex or status of the persons who engage in
  the act is irrelevant as a matter of state law.

28
Bowers v. Hardwick(1986)

• The Supreme Court ruled
• The Constitution does not confer a fundamental
  right upon homosexuals to engage in sodomy. None
  of the fundamental rights announced in this
  Courts prior cases involving family
  relationships, marriage, or procreation bear any
  resemblance to the right asserted in this case.
  And any claim that those cases stand for the
  proposition that any kind of private sexual
  conduct between consenting adults is
  constitutionally insulated from state
  proscription is unsupportable.
• Against a background in which many States have
  criminalized sodomy and still do, to claim that a
  right to engage in such conduct is deeply rooted
  in this Nations history and tradition or
  implicit in the concept of ordered liberty is, at
  best, facetious.

29
Bowers v. Hardwick(1986)

• The Supreme Court ruled
• There should be great resistance to expand the
  reach of the Due Process Clauses to cover new
  fundamental rights. Otherwise, the Judiciary
  necessarily would take upon itself further
  authority to govern the country without
  constitutional authority. The claimed right in
  this case falls far short of overcoming this
  resistance.
• The fact that homosexual conduct occurs in the
  privacy of the home does not affect the result.
• Sodomy laws should not be invalidated on the
  asserted basis that majority belief that sodomy
  is immoral is an inadequate rationale to support
  the laws.

30
Bowers v. Hardwick(1986)

• Justice White delivered the Courts opinion
• Any claim that these cases nevertheless stand
  for the proposition that any kind of private
  sexual conduct between consenting adults is
  constitutionally insulated from state
  proscription is unsupportable.
• Plainly enough, otherwise illegal conduct is not
  always immunized whenever it occurs in the home.

31
Bowers v. Hardwick(1986)

• Originally, the Court of Appeals for the Eleventh
  Circuit stated that
• ..the Georgia statute violated respondents
  fundamental rights because his homosexual
  activity is a private and intimate association
  that is beyond the reach of state regulation by
  reason of the Ninth Amendment and the Due Process
  Clause of the Fourteenth Amendment.
• Chief Justice Burger added that
• in constitutional terms there is no such thing
  as a fundamental right to commit homosexual
  sodomy.

32
Lawrence v. Texas(2003)

• The Issue A Texas law forbidding a man from
  engaging in deviant sexual intercourse with
  another individual of the same sex.
• Defendants were caught when police entered the
  home in response to a reported weapons
  disturbance.

33
Lawrence v. Texas(2003)

• The Supreme Court considered
• Whether petitioners criminal convictions under
  the Texas Homosexual Conduct law-which
  criminalizes sexual intimacy by same-sex couples,
  but not identical behavior by different-sex
  couples-violate the 14th Amendment guarantee of
  equal protection of laws.

34
Lawrence v. Texas(2003)

• The Supreme Court considered
• Whether petitioners criminal convictions for
  adult consensual sexual intimacy in the home
  violate their vital interests in liberty and
  privacy protected by the Due Process Clause of
  the 14th Amendment.
• Whether Bowers v Hardwick, 478 U.S. 186 (1986),
  should be overruled.

35
Lawrence v. Texas(2003)

• The Supreme Court Ruled
• Texas Homosexual Conduct law violates the
  privacy of homosexuals under the 14th Amendment.
• Convictions for adult consensual sexual intimacy
  in the home violate their vital interests in
  liberty and privacy protected by the Due Process
  Clause of the 14th Amendment.
• Bowers was not correct when it was decided, and
  it is not correct today. Bowers v. Hardwick
  should be and now is overruled.

36
Privacy as a Penumbral Right

• Justice William O. Douglas announced the
  penumbral right to privacy in the case of
  Griswold v. Connecticut.
• Penumbra an area in which something exists to a
  lesser or uncertain degree.
• An extension of protection, reach, application,
  or consideration especially a body of rights
  held to be guaranteed by the implication from
  other rights explicitly enumerated in the U.S.
  Constitution.

37
Privacy as a Penumbral Right

• Previous cases suggests that the specific
  guarantees in the Bill of Rights have penumbras,
  formed by the emanation from those guarantees
  that give them substance. Various guarantees
  create zones of privacy, such as the First
  Amendment right of association, the Third
  Amendment prohibition against quartering soldiers
  in a home, the Fourth Amendment right to be
  secure in ones person, house, papers, and
  effects, the Fifth Amendment right to not deny or
  disparage any right retained by the people. These
  cases press for recognition of the penumbral
  rights of privacy and repose. (Justice Douglas,
  for the majority with Goldberg, Warren, Brennan
  also concurring)

38
Conservative Justices

• Chief Justice William Hubbs Rehnquist
• Justice Antonin Scalia
• Justice Clarence Thomas
• Textualism
• Strict adherence to a text
• Textualists look no further than the words of the
  constitution to reach decisions.
• If you are a textualist, you dont care about
  the intent, and I dont care if the Framers of
  the Constitution had some secret meaning in mind
  when they adopted its words. I take the words as
  they were promulgated to the people of the United
  States and what is the fairly understood meaning
  of those words. Scalia
• Words do have a limited range of meaning and no
  interpretation that goes beyond that range is
  permissible. Scalia

39
Does the Constitution Guarantee a Right to
Privacy?

• We feel it does due to the following
• Although the right to privacy is not specifically
  stated in the Constitution it is contained in the
  Penumbra of the Bill of Rights.
• The latest Supreme Court Rulings support Personal
  Privacy.
• Privacy from the GOVERNMENT.

40

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41

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