Right to Privacy?
Atrios mentions Griswold as the granddaddy of the right to privacy law, predating Roe and Lawrence in the court’s willingness to recognize a right to privacy.
However, the concept actually predates Griswald by about 75 years (though Griswold may be the first to apply it to so-called sexual privacy). According to American Law Reports, the phrase was introduced in a Harvard Law Review article in 1890, by Samuel Warren and Louis Brandeis.
That the individual shall have full protection in person and in property is a principle 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. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life--the right to be let alone, the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession-- intangible, as well as tangible.
Indeed, you can trace the right of privacy back, from Griswold (1965) thorough Wolf v. People of the State of Colo. (1949):
To rely on a tidy formula for the easy determination of what is a fundamental right for purposes of legal enforcement may satisfy a longing for certainty but ignores the movements of a free society. It belittles the scale of the conception of due process. The real clue to the problem confronting the judiciary in the application of the Due Process Clause is not to ask where the line is once and for all to be drawn but to recognize that it is for the Court to draw it by the gradual and empiric process of 'inclusion and exclusion.
...and to cases which themselves predate the Warren/Brandies piece, such as Davidson v. City of New Orleans (1877):
But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom, we think, in the ascertaining of the intent and application of such an important phrase [Due Process] in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.
The right to privacy, as known by that name is certainly not written into the constitution. The underlying concepts, however, have existed since the constitution was written (and before that) in laws surrounding the protection of person, property, and (if you will) spirit. The courts have long recognized that, as society evolves, the courts will need to establish what rights are fundamental under Due Process.
Conservatives focus on the sexual / reproductive privacy rights the courts have carved out, but the right to privacy is much broader in scope, and the removal of such a right would have impact far beyond whether or not two guys are free to have sex in the privacy of their own home.
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Posted by Henry at
02:25 PM
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