Where Your Right to Privacy Comes From

In a draft opinion recently leaked to the press, Supreme Court Justice Samuel Alito proposed overturning the Court’s 1973 decision in Roe v. Wade. That ruling, said the Justice, was “remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”

He is right, of course. The word “privacy” never appears in the Constitution. The right to privacy is a legal principle that has only gained credibility since the 1890s.

For most of human history, privacy as we know it didn’t exist. As Austrian psychologist Bruno Bettelheim observed in a 1968 Post article entitled “The Right to Privacy is a Myth,” it was a luxury few could afford. “One need not go far back to a time when whole families lived together in one room. Nobody had privacy then. One could not hide skeletons in the closet, because there were no closets. In colonial days, even among the affluent, a family had to be quite well off to afford separate bedrooms.”

The first people to claim a right to privacy were titled landholders, who could defend their own privacy with an armed retinue. By the 18th century, that right had been adopted by homeowners and incorporated into the common law adage, “A man’s home is his castle.” In 1763, Sir William Pitt, speaking in the British Parliament against the imposition of a new tax, said, “the poorest man may in his cottage bid defiance to all the forces of the Crown.”

Just 16 years later, James Madison was drafting a list of personal rights to amend America’s new Constitution. He directly addressed the privacy concerns of home owners who’d seen intrusions by the British authorities before the revolution. The Third Amendment protected Americans from the British practice of ordering home owners to house their troops. The Fourth Amendment prohibited the sort of arbitrary home searches conducted by British authorities hunting for contraband.

The First Amendment also addressed a right to privacy by ensuring the government doesn’t intrude on citizens’ religious beliefs. And the Fifth Amendment protected a citizen from self-incrimination. In the 1965 ruling Griswold v. Connecticut clarifies that this self-incrimination clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.

These might have remained the only assurances of privacy if not for the Ninth Amendment, which says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It specifies that the first eight amendments are not meant to be an exhaustive list of rights, or to minimize other rights held by the people. Past Justices on the Supreme Court used this Amendment (such as in the case of Griswold) to justify expanding the fundamental privacy rights of Americans.

The first national challenge to personal privacy came, perhaps not surprisingly, from the media. In the late 1800s, journalism had entered an era of sensationalism. Publishers found there was money to be made by unearthing and publishing sensitive, personal information about the rich and famous.

Attorneys Samuel D. Warren and Louis D. Brandeis responded to this challenge in 1890 by publishing “The Right to Privacy.”

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers.

The principle which protects personal writings and any other productions of the intellect of or the emotions, is the right to privacy…”

Publishing someone’s sensitive correspondence didn’t just violate laws of private property but something more important, which Warren and Brandeis called “inviolate personality.”

The concept of privacy rights was gaining ground at the time. A Post editorial of the same year criticized Americans who pried into the sensitive areas of others’ lives, their faults, sorrows, and shames. It was, the editors wrote, “a direct violation of a sacred right — that of every man to his own individual privacy.”

In 1928, Brandeis, now a Supreme Court Justice, returned to his ideas about privacy. The Court had just ruled that wiretapped evidence could be used against a suspect. In a dissenting opinion, Brandeis wrote the Constitution’s authors wanted to create conditions favorable to the pursuit of happiness, which meant protecting Americans in their beliefs, thoughts, emotions, and sensations. They conferred on citizens “the right most valued by civilized men” — the right to be left alone.

The privacy right was broadened again in 1965, when Estelle Griswold was appealing her conviction for giving out information on birth control to couples, which violated Connecticut law. Writing the majority opinion, Justice William O. Douglas asserted that a general right to privacy could be derived from the specific guarantees of the First, Third, Fourth, and Ninth Amendments.

In the years that followed, the Court issued several opinions supporting privacy rights:

• In 1967, in Katz v. United States, the court reversed its 1928 ruling on wiretapped information, now declaring the Fourth Amendment protected all areas where a person has a “reasonable expectation of privacy.”
• In 1973, the Court’s ruling in Roe v. Wade held that a fundamental “right to privacy” protected a pregnant woman’s choice whether to have an abortion.
• The Privacy Act of 1974 set boundaries for federal agencies’ practices of collecting, using, and disseminating information on individuals. It balanced the government’s need to be informed with the need to protect citizens from unwarranted invasions of their privacy.
• The Fair Credit Reporting Act of 1970 protected information on personal finances gathered by consumer-reporting agencies, limited their access to this data, and made them responsible for its accuracy.
• The Children’s Online Privacy Protection Rule of 1998 imposed rules on websites directed to children under 13 years, or online services that collect information on these children.
• The USA Freedom Act ended what had been bulk collection of millions of Americans’ phone records, a practice revealed by former intelligence consultant Edward Snowden.

But like many legal principles, the right to privacy is a concept, a dynamic ideal, a compromise between the individual and the community — which leaves it open to changing interpretations.

In a 1961 opinion for Poe v. Ullman, Justice John Marshall Harlan II wrote that our nation has always balanced personal liberty with the demands of organized society. Our personal and property rights are as old as the common law, “but it has been found necessary from time to time to define anew the exact nature and extent of such protection.”

But no matter how much thinking changes and laws are revised, the right to privacy is essentially a check on government intrusion. In 1986, Benno Schmidt, Jr., the new president of Yale University, told an interviewer privacy is absolutely essential to maintaining a free society. It essentially protects the notion “that the citizen is not the tool or the instrument of the government — but the reverse.”

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