Civil Rights and Civil Liberties – Where Do New Rights Come From?
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Civil Rights and Civil Liberties – Where Do New Rights Come From?

>>Like so many other concepts in constitutional
law the Right to Privacy is linked to vying interpretations of what the constitution means.
That we now recognize and protect not only traditional privacy rights against the state
— like expectations of privacy grounded in property rights — but also privacy rights
in marriage and personal relationships; a right to privacy that protects a woman’s right
to choose whether to terminate her pregnancy; privacy rights in same-sex relationships;
and even a limited privacy right in end of life decisions, shows just how successful
a more contemporary interpretation of the Constitution has been over the last 40 years.
But the criticisms of this capacious understanding of privacy rights also shows the viability
of a more traditional and originalist approach to constitutional interpretation. Before we jump into these controversial right
to privacy cases for this section, though, we have to appreciate the fact that the concept
of a right to privacy has a long tradition in the common law and American constitutional
law. At least since the nineteenth century the Court has recognized a limited privacy
right, starting with the increased protection that the Court placed on property rights.
And especially as the Court began to develop its 4th Amendment jurisprudence during the
1920’s and prohibition, Americans were very comfortable with a general notion of a right
to privacy. Moreover, as the Court began to recognize and enforce more aspects of Civil
rights and Civil liberties after the constitutional crisis of 1937, it was only a matter of time
that other rights, like those that would eventually be protected under the umbrella of privacy,
would come before the Court. But changes in the larger social and political
climate of the United States during the 1960’s and 1970’s best explain the immediate acceptance
by the Court of the extension of privacy rights. The sexual revolution of the 1960’s and 70’s
sensitized American culture, politics, and eventually the law, and pushed the Court to
formally recognize that sexual intimacy and its attendant concerns — especially the choice
of whether or not to start a family or even have children at all, even outside of marriage. We see both the older conceptions of privacy
and the more immediate concerns that would widen the right, in our first case — Griswold
v. Connecticut in 1965. In Griswold, the majority overturned a Connecticut law that not only
prohibited the use of birth control itself, but also prohibited the dissemination of information
about contraceptives more generally. The law, the Court’s majority argued, infringed a right
to privacy concerning the most intimate decisions of married couples, thus violating the 14th
Amendment’s due process clause. The Court found this right in two places in the Constitution,
even though the right is not explicitly written down in the text itself. One place was in
the quote penumbras and emanations of the Bill of Rights. The 1st Amendment’s free speech
and association protections, plus the 3rd Amendment’s prohibition against the quartering
of troops in homes, plus the 4th Amendment’s warrant requirements suggested a larger right
to privacy that the Founder’s sought to protect in the Bill of Rights. You would have to have
a right to privacy in mind if you explicitly sought to protect speech, association, our
homes and our person and property from unreasonable searches and seizures. The Court also suggested
that the right to privacy could be found in the 9th Amendment, which provides that “The
enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.” So the Court recognized both an older basis
of privacy and a newer, more contemporary one. Of course the Court’s decision was not unanimous,
and the dissents, especially from Justice Black, have characterized larger criticisms
of the Court’s privacy jurisprudence ever since. Justice Black argued that reading into
the Constitution rights that were not explicitly enumerated, created two dangerous problems.
The first was that if the Court could simply insert a right into the text, it could just
as easily take that right away. The second problem was that in reading these rights into
the constitution the Court was substituting its understanding and interpretation of the
document with that of democratic majorities. In the case of Griswold, then, the text of
the constitution is silent regarding a privacy right concerning contraception. Who, then,
is more legitimate in deciding whether this right exists, the unelected Court, or the
democratic majority of Connecticut that enacted the law? This question still serves as the
basis for contending notions of property rights. The subsequent development of privacy rights,
though, would not only widen, but become more controversial. Soon after Griswold in 1965,
for example, the Court extended the privacy right with respect to contraceptives to unmarried
as well as married couples. But the most controversial development in privacy rights is of course
its extension to abortion rights in Roe v Wade, as the Court extended the privacy right
to a woman’s decision whether or not to terminate her pregnancy. Importantly, the Court did
not recognize an unlimited right, as it initially allowed the abortion right to be more regulated
by states as a pregnancy progressed through its three recognized trimesters. And even
when the Court became more solidly conservative throughout the 1980’s and into the early 1990’s,
the Court still upheld the right even though it jettisoned the trimester framework. In
its place, it created another standard to protect the right and the right of states
to regulate it: the test now is whether a regulation creates an undo burden on a woman’s
right to terminate her pregnancy. As controversial as privacy rights have become
in the area of abortion, the Court has also found that intimate relations between same
sex couples, as well as end of life decisions, are also protected as privacy rights. SO as you wade through these controversial
cases, think about the following questions: 1) If a right to privacy exists, where in
the Constitution is it found? In the “penumbras and emanations” of the Bill of Rights? In
the 9th Amendment? Somewhere else? 2) Does it even matter that the right is not
enumerated? Are these areas — a woman’s right to choose; intimate sexual decisions between
adults; and even end of life decisions — too fundamental to go unprotected?
3) Should these areas of privacy rights get the same protection as enumerated rights,
like those in the Bill of Rights? 4) And finally, who is more legitimate in
determining what these rights are? Unelected judges or democratic majorities? These are controversial cases that often provoke
extreme reactions, but they are also some of the most important and interesting cases
in American constitutional law. Use that emotion to help you think seriously and critically
about them.

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