What has the US Supreme Court based the right to privacy on?

Answer 1

The US Supreme Court uses the doctrine of Substantive Due Process, developed from and applied via the Fourteenth Amendment Due Process Clause, to infer the right to privacy from the language in various amendments of the Bill of Rights. More specifically, the Court determined the First, Third, Fourth, Fifth, and Ninth Amendments implied incorporation of unenumerated rights to create a "penumbra" (an area in which related issues are included to a lesser degree) of fundamental rights or liberty interests that deserve constitutional protection.

When determining whether a particular right can be justifiably protected by the courts, the justices apply one of two tests: 1) If the issue involves a fundamental right based on history or tradition, they apply the "rational basis test" to determine whether the infringement can be rationally related to a legitimate government purpose; or 2) If the issue involves a liberty interest (rights considered implicit in the concept of ordered liberty, which would result in injustice if sacrificed), they apply a higher standard, called "strict scrutiny," which requires the government have not just a legitimate purpose, but a "compelling state interest" to enforce.

The Court explicated, in Griswold v. Connecticut, (1965) that the various clauses in the Bill of Rights combined to create a constitutionally protected "zone of privacy." The First Amendment's right of association, and right of expressive association; the Third Amendment's prohibition against quartering soldiers in any house in times of peace (without consent of the owner); The Fourth Amendment's affirmation that a person be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"; and the Fifth Amendment's protection against self-incrimination, all combine to imply the Founding Father's intended to provide for the citizens' privacy from government intrusion. Further, the Ninth Amendment states, "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," which explicitly acknowledges people have rights beyond those specifically outlined in the constitution.

The Court sometimes also incorporates the Fourteenth Amendment Equal Protection Clause to balance unequal treatment between similar groups, as in the case of Lawrence v. Texas, (2003), where a Texas sodomy law was targeted at homosexuals, rather than across the full spectrum of citizens.

For more information, see Related Questions, below.

Answer 2

Although not explicitly mentioned in the Constitution, the US Supreme Court decided privacy is implied in the 1st, 3rd, 4th, and 9th Amendments and in the 14th Amendment Due Process Clause.

The judicial concept is called "Substantive Due Process," which holds that the Fourteenth Amendment Due Process Clause is intended to protect all unenumerated rights considered fundamental and "implicit in the concept of ordered liberty," among these the right to privacy. Use of Substantive Due Process is considered judicial activism, in that it seeks to limit the scope of laws that undermine personal liberty, even if the law doesn't address a right specifically mentioned in the Constitution.

Earlier, Lochner-era (approximately 1897-1937, second industrial revolution) Courts used Substantive Due Process in a way that reduced protection of the individual against exploitation by businesses and the government, such as protecting the right of the individual to negotiate contracts with an employer by holding employment laws regulating minimum wage and work conditions unconstitutional.

Today, Substantive Due Process is used to protect the individual against exploitation or legislation that creates an undue burden on individuals, or on an identifiable group or class of citizens.

In order to determine whether the government has valid cause to interfere in people's lives, the Court applies a "rational basis test" to determine whether the legislation is related to a legitimate government interest. If the law passes the rational basis test, the Court next applies "strict scrutiny" to determine whether there is a compelling state interest that justifies violating the groups' or individuals' fundamental rights, and whether the law is applied as narrowly as possible to infringe those rights as little possible.