The word privacy does not appear in the U.S. Constitution, even though it is explicitly listed as a right in the constitutions of several states. The first known legal recognition of a right to privacy appeared in an article in 1890 in the Harvard Law Review, written by Samuel D. Warren and Louis D. Brandeis. Both were attorneys in Boston when they wrote the article; Brandeis was later appointed to the U.S. Supreme Court in 1916 by President Woodrow Wilson.

Among philosophers, recognition of a private sphere of life in home and family in contrast with public political life can be found as far back as the writings of Aristotle. But this recognized merely the existence of a private sphere without recognizing privacy as a right. Several contemporary philosophers, including Judith Jarvis Thomson and Ronald Dworkin, have pursued a more developed sense of privacy as a right.

The right of privacy has been recognized by numerous justices of the U.S. Supreme Court in the twentieth century as included in the penumbra of the Constitution. What is this penumbra? Several provisions of the Constitution are typically cited as supporting this right to privacy. In the 1965 decision Griswold v. Connecticut, Justice William O. Douglas explained this concept of a penumbra of rights: specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers in any house in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The Fourth and Fifth Amendments were described as protection against all governmental invasions of the sanctity of a mans home and the privacies of life. Even if there is a legal and moral right of privacy, the question still remains as to what you get for this right. A right to use contraception? To have an abortion? To choose assisted suicide? To sell ones bodily organs for profit? One can consistently recognize the right and yet argue persuasively that not all of those rights follow from a right of privacy. It is important in considering the issues in this chapter that even if people have a right to privacy (whether ethically or legally), that right does not necessarily guarantee any particular result in these ethical debates.

The right of the people against unreasonable searches and seizures: how important is this right? If you are a law-abiding citizen, is this right liable to be an important one to have or do you believe that only those who break the law are grateful for such a Fourth Amendment right?

Timeline 3.1: Privacy and Liberty in the Courts

A series of important court cases has addressed issues of privacy and liberty under the U.S. Constitution over a period of more than a century. Although the word privacy does not appear in the Constitution, the right has been recognized by numerous courts.

The U.S. Supreme Court held in 1990 that consenting adults have a right to refuse medical treatment in Cruzan v. Director, Missouri Dept. of Health, but that states can insist on clear and convincing evidence of this consent. This can be considered a passive euthanasia, allowing a patient to die, but the Court, to date, has never approved of an active euthanasia.

The question of assisted suicide came before the U.S. Supreme Court in two cases in 1997, Washington v. Glucksberg and Vacco v. Quill. The patientss attorneys argued that they should have a liberty or privacy right to assisted suicide, a claim rejected by the court. But the court also said that experiments in the states on permitting assisted suicide, such as Oregons, were acceptable. In other words, although patients do not have a right under the Constitution to assisted suicide, neither does the Constitution prohibit assisted suicide if a state government elects to provide for it.

The U.S. Supreme Court has not to date addressed the issues of stem cell research or genetic engineering. Congress has passed legislation permitting this research, and federal agencies have issued regulations to implement these laws. A major concern for all is to ensure careful ethical guidelines for this type of research.

A minimum of 500 words of meaningful content

Use concepts from the text as well as outside sources to support your answers.

Is there a legal right to privacy in the United States? Why or why not?

Do we have a moral obligation to respect privacy? Why or why not?

Does the legal right and/or moral obligation to privacy extend to a right to sell ones own organs to the highest bidder?