Although it is commonly argued that the Constitution lacks any specific textual reference to “privacy,” that argument overlooks the text of the *Fifth Amendment, which states that “private property [shall not] be taken for public use, without just compensation.” The text makes no sense unless the framers of the Constitution believed, first, that the institution of private property already existed and, second, that there was something important about this institution worth protecting. That is, private property had a purpose, the most plausible purpose being that possessing private property helps one to become the master of one’s own fate.
It is within this context that one should understand “The New Property,” an influential 1965 article by then-Yale professor Charles Reich, which argues that the same kinds of constitutional protections accorded “old property,” such as land, should be accorded “new property,” such as social security, because of the latter’s equally vital role in preserving individual autonomy. The deep paradox of Reich’s article, however, lies precisely (p. 780) in the fact that the Supreme Court, throughout the twentieth century but especially following the so-called constitutional revolution of 1937, has been increasingly disinclined to give strong protection to the “old property” against state regulation. Among the seminal cases in this regard is *Euclid v. Ambler Realty Co. (1926), in which the conservative Justice George *Sutherland, speaking for the Court, upheld a local *zoning ordinance that severely restricted the development opportunities available to landowners. Although such zoning significantly reduced the practical market value of the land in question, it was deemed not to be a *taking requiring compensation under the Fifth Amendment, which had been applied to the states through the *Fourteenth Amendment.
The modern debate about the constitutional protection accorded privacy derives from *Griswold v. Connecticut (1965). In Griswold the Court declared unconstitutional a Connecticut law that both prohibited the use of contraceptives and prevented anyone from encouraging the use of contraceptives through, for example, medical counseling. Connecticut prosecuted the executive director of the Planned Parenthood League for giving information to married persons about contraception. The Supreme Court, in an opinion by Justice William O. *Douglas, reversed Mrs. Griswold’s conviction on the basis that it violated her (and her clinic’s patients’) rights of privacy. Ignoring the Private Property Clause of the Fifth Amendment, Douglas noted that a general right of privacy is nowhere explicitly set out in the constitutional text, in contrast, say, to the right to free exercise of religion acknowledged in the First Amendment or the right against *self-incrimination set out in the Fifth Amendment. But, said Douglas, the real point of many of the “various guarantees” of the Constitution was precisely to “create zones of privacy” protected against state interference (p. 484).
Douglas pointed to cases interpreting the First Amendment, which had recognized the “freedom to associate and privacy in one’s association”; to the *Third Amendment, which prohibits the quartering of soldiers “in any house” in time of peace without the owner’s consent; to the *Fourth Amendment and its explicit affirmation of the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”; and to the Fifth Amendment’s Self-Incrimination Clause (p. 483). Douglas also took note of several cases from the 1920s involving private *education. In 1923 the Court, in *Meyer v. Nebraska, had invalidated a state ban (sparked by anti-German feeling during *World War I) on teaching German in private schools. Two years later, in Pierce v. Society of Sisters, the Court struck down Oregon’s Klan-inspired attempt to prohibit private schooling entirely.
Similarly, Douglas said, Connecticut’s law could not survive, for it “concern[ed] a relationship lying within the zone of privacy created by several fundamental constitutional guarantees” (p. 485). In particular, it attempted to regulate one of the most intimate aspects of marriage—the circumstances under which the partners would relate to one another sexually. To prosecute someone for violating Connecticut’s “use” prohibition would require extraordinary state intrusiveness. “Would we allow the police,” Douglas asked rhetorically, “to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” He responded, “The very idea is repulsive to the notions of privacy surrounding the marriage relationship” (pp. 485–486).
Griswold was a surprisingly controversial decision, though not, certainly, because of any judicial sympathy with what one dissenter, Justice Potter *Stewart, called “an uncommonly silly law.” Instead, for the dissenters, Hugo *Black especially, (p. 781) the decision recalled an earlier era of the Court in which it used similar concepts, though denominated “freedom of *contract” rather than “privacy,” to carve out a protected realm of conduct against almost any regulation by the state. This earlier era was symbolized by the decision in *Lochner v. New York (1905), in which the Court interpreted the Due Process Clause of the Fourteenth Amendment to hold unconstitutional a New York state law that attempted to limit to sixty the hours that a baker could work each week. According to the five-justice majority in Lochner, this statute unconstitutionally interfered with the autonomy rights of the baker and his employee to negotiate as equals over the terms of employment.
Lochner occasioned perhaps the most-quoted dissenting opinion in American judicial history, by Justice Oliver Wendell *Holmes:
I think that the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. (p. 76)
An entire generation of scholars and lawyers used Holmes’s opinion almost as an anthem in behalf of judicial deference to majority rule and as a rejection of the doctrine of substantive *due process. To be sure, Justice Black, who dissented in Griswold, vigorously opposed state regulation of *speech, but he based this philosophy of judicial overruling of majority will on the specific text of the First Amendment, as applied to the states through the Fourteenth Amendment (see incorporation doctrine). “I like my privacy as well as the next one,” wrote Black, “but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision” (p. 510). Black was squarely in the camp of those who viewed the message of 1937 as counseling general deference to legislative enactments unless explicitly prohibited by the constitutional text. Griswold was in his judgment as pernicious a decision as Lochner.
That Griswold and successor cases were written using the language of “privacy” was due primarily to the desire to avoid direct comparison with Lochner. These cases could have been decided using a different rhetoric, one more self-consciously libertarian and focusing on the centrality of such decisions in achieving one’s own life plans. What prevented the use of such a neolibertarian rhetoric was much less its intellectual deficiency than its evocation of the earlier era of Lochner, based as that case was on a highly libertarian conception of the limits of government. Thus Holmes had reminded his colleagues that the “Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics” (p. 75); Spencer’s book was one of the most libertarian tracts of the nineteenth century. Given the bad repute of such overtly libertarian rhetoric, the Court was attracted to the purportedly different rhetoric of privacy. Because of the way legal argument operates, “privacy” became the catchword for a host of cases that would be better understood had they been analyzed under a more frankly libertarian, autonomy-oriented theory.
Regardless of this rhetorical point, it is fair to say that if the “right to privacy” had been confined to the circumstances of the Connecticut contraceptive ban, it is unlikely that the notion would have become particularly important, except among specialists in constitutional law: Connecticut was in fact the last state to ban contraceptives. Moreover, Griswold could have been fit within what were termed above the “invasion of privacy” cases designed to protect certain conduct, in this instance the use of contraceptives, from public gaze. The issue in Griswold could have been confined either to the prohibition of the “use” of contraceptives or to use plus the giving of relevant medical advice, in order to protect institutions like Planned Parenthood. Moreover, one could have maintained the emphasis on the particular circumstances under which contraceptives are in fact used, thus accounting for the power of Douglas’s reference to the “sacred” marital bedroom.
It is worth noting, however, that no one seriously argues that the police are without power, assuming they have the *probable cause required by the Fourth Amendment to obtain a search warrant, to search “sacred” bedrooms for evidence of ordinary crime. A thief would not purchase immunity from search, for example, by hiding the loot under the sacred marital mattress! The fact that most of Douglas’s examples are open to this kind of attack has led many observers to criticize his opinion, at least insofar as he attempted to derive the “right of privacy” from what he called the “penumbras and emanations” of the text of the *Bill of Rights.
Although Douglas’s opinion was joined by a majority of the Court, two important separate concurring opinions, written by Justices Arthur *Goldberg and John M. *Harlan, attempted to sketch out other bases for the “right to privacy.” Harlan alluded to an opinion he had written in an earlier case, *Poe v. Ullman (1961), in which the Court had refused to address the legitimacy of the Connecticut law it struck down in Griswold. In Poe, Harlan had emphasized that the Due Process Clause of the Fourteenth Amendment legitimizes the Court’s attempt to discern “the balance which our Nation, built upon postulates of (p. 782) respect for the liberty of the individual, has struck between that liberty and the demands of organized society” (p. 542). Examining the American (and, indeed, English-speaking) past, Harlan concluded that the Connecticut law “involves what, by common understanding throughout the English-speaking world, must be granted to a most fundamental aspect of [liberty,] the privacy of the home in its most basic sense” (p. 548). Goldberg focused attention on the *Ninth Amendment, with its reminder that the specification of certain enumerated rights in the Bill of Rights should not be interpreted as “disparaging” the existence of additional, unenumerated rights. Privacy, Goldberg argued, was just such a right—one that should be understood as being protected by the Constitution even though unenumerated.
In any event, Griswold did not remain an isolated case, and its import soon extended far beyond Harlan’s “privacy of the home” or the particularity of the “sacred” marital relationship. The Court, in *Eisenstadt v. Baird (1972), struck down a variety of state prohibitions on the sale or distribution of contraceptives first to single adults and then, five years later, invalidated, in Carey v. Population Services International, a New York law prohibiting the sale of contraceptives to minors under sixteen and forbidding anyone not a licensed pharmacist from selling even nonprescription contraceptives to persons of any age. As suggested above in the discussion about “private property,” there is nothing secret about offering contraceptives for sale, much less advertising them. Once again, it is crucial that one separate the kind of privacy interest that is being protected in access-to-contraception cases—enhancement of individual autonomy—from the different aspect of privacy organized around the notion of secrecy. But even the liberation of contraceptives from state control would scarcely have caused significant public controversy, given the great changes that were taking place in sexual behavior and the use of contraceptives by a majority of the American public.
The case that brought “privacy” to the forefront of national consciousness was *Roe v. Wade (1973), which struck down laws in all fifty states that prohibited most (and in some cases all) abortions. “The right of privacy,” Justice Harry *Blackmun wrote in behalf of the Court, “whether it be founded in the Fourteenth Amendment’s concept of personal liberty … or … in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (p. 153). To be sure, even this important “right of personal privacy” could be curbed by the state if it presented a “compelling interest,” but the import of Roe, with some exceptions, has been to limit such state power. Roe is surely on anyone’s list of most important opinions, both in terms of the changes it brought to American life and the controversy it stirred up. Although it did not, as Dred *Scott v. Sandford (1857) was alleged to have done, spark a civil war, it almost certainly contributed, because of the identification of the antiabortion position with right-wing politics, to the defeat of many Democratic senators in 1976 and 1978, the capture of the presidency and the Senate by the Republican Party two years later, and to the ultimate defeat of the Equal Rights Amendment.
Once again, it should be clear that abortion is centrally linked with autonomy concerning the conditions of one’s life—thus the adoption of the term “pro-choice” by its adherents. Many persons read the sequence of cases from Griswold to Roe as supporting, under the rubric of “privacy,” a general right to what might be termed “sexual autonomy,” that is, freedom of choice in regard to one’s sexual identity, including its reproductive aspects.
This claim of a right of sexual autonomy was most dramatically tested in the 1986 case *Bowers v. Hardwick, which involved an attack by a gay Georgia man upon a state law that criminalized sodomy. A bitterly divided Court upheld, by a 5-to-4 vote, the constitutionality of the law. Justice Byron *White, who wrote the majority opinion, declared that the right to privacy encompassed by the Constitution did not include a right to engage in “homosexual sodomy.” (His opinion ostentatiously refused to indicate whether the Constitution would tolerate the criminalization of heterosexual sodomy—with sodomy defined as including oral sex—which is apparently practiced by many Americans, including married couples.)
Although Bowers concerned bedroom conduct, what was ultimately at stake in the case was the integration of gays and lesbians into all aspects of American public life. Thus, had the decision gone the other way, it might have been increasingly difficult to maintain the prohibition of gay and lesbian marriage, for example, and other “public” acts that would signify the true emergence of gays and lesbians from the closets to which the American legal order has tended to condemn them. Justice Lewis *Powell, who provided the fifth vote upholding the Georgia law, declared after his retirement that he regarded the decision as a mistake. Issues of gay rights continued to percolate in a variety of contexts and issues, however. These included debate over the ban by the armed forces on service by openly gay and lesbian members (“don’t ask, don’t tell”), civil unions (in Vermont), and most recently gay marriage. Bowers itself was overruled in 2003 by (p. 783) *Lawrence v. Texas, when the Supreme Court held that government could not prohibit or punish private consensual sex engaged in by either same-sex or heterosexual persons.
Moreover, it is certainly not unthinkable that Roe itself will be overruled, though there appears to be no serious support for overruling Griswold. As has already been suggested, however, limiting the constitutionally protected right to privacy (as autonomy) to the use of contraceptives would scarcely be of any great significance so far as the general public is concerned. In any event, in the early 2000s it is hard to imagine that there will be any great extensions of this branch of the right to privacy in the foreseeable future.