A Short History of “Privacy” in American Jurisprudence

Privacy

[Note: This entry was originally entitled “Privacy,” and was transferred to this site, having previously been posted by me on Monday, May 3, 2010 at 2:57pm.]

“Privacy” is a relatively new term in American jurisprudence, and public dialogue. Former US Supreme Court Justice Hugo Black, an AL native, wrote against “privacy” in his dissent in Griswold v Connecticut.

The development of our right to privacy emerged, interestingly enough, from Griswold v Connecticut, a 1965 Supreme Court Case which challenged the state’s 1879 criminalizing of a married couple’s use of contraceptive devices. Appellants were the Executive Director of Planned Parenthood League of Connecticut and its Medical Director, a licensed physician convicted as accessories for giving married persons information and medical advice on how to prevent conception, and following an examination prescribing a contraceptive device or material for the wife’s use. Connecticut statute made it illegal for any person to use any such device or article to prevent conception.

One of two dissenting Associate Justices (Potter Stewart was the other), Hugo Black, an Alabama Democrat appointed by Franklin Delano Roosevelt, foresaw great problems emerging from that decision, which he stated would eventually be used to justify all sorts of behavior deleterious to society, including criminal. Black wrote that, “I like my privacy as well as the next [man], but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” He wrote further that, “The right of association is for me a right of assembly and the right of a husband and wife to assemble in bed is a new right of assembly to me.“

Writing notes upon early drafts of his dissenting opinion prepared by clerks, Justice Black annotated in one such piece that “‘Privacy’ is not in my judgment the test under the 4th Amendment.“

Justice Black wrote that his dissent from the seven member majority in the Griswold case was “the most difficult I have ever tried to write. I found that law abhorrent, just viciously evil, but not unconstitutional.“

Described as the “most remarkable Supreme Court justice of the 20th century” Hugo Black was to some, a curious justice insofar as he neither was nor took an “interpretist” or “literalist” approach to the Constitution, and unashamedly reviewed legislation that some argued violated Constitutional principles, and therefore was labeled by some as “activist.” Yet he wrote in his 1971 concurring decision in McGautha v California that, “Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power.” (Concurring opinion of Justice Hugo Black, McGautha v. California, 402 U.S. 183 (1971))

His views on the First Amendment are especially renown, and of the principle espoused by the Constitution’s framers he wrote,”Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind.” Writing also that “The Founding Fathers gave the free press the protection it must have [to] bare the secrets of government and inform the people,” he also acknowledged the role of a free press in the process of keeping government honest.”