Opening the book…
The federal Constitution does not explicitly protect privacy. However, several of the amendments in the Bill of Rights ensure and protect individual decision making and autonomy from governmental intrusion. Thus modern interpretations of the Constitution by the US Supreme Court have created a right to privacy (Griswold v. Connecticut, 2010). This right is considered fundamental and subject to strict scrutiny; only a compelling government interest can justify a statute encroaching on its protections. Many states including California have an explicit right to privacy in their state constitutions.
The Constitutional Amendments Protecting Privacy
US Supreme Court precedent has held that the right to privacy comes from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. The First Amendment protects the right to speak freely, assemble peacefully, and worship according to individual choice. The Third Amendment prohibits the government from forcing individuals to quarter, house, or feed soldiers. The Fourth Amendment prevents the government from unreasonably searching or seizing an individual or an individual’s property. The Fifth and Fourteenth Amendments provide due process of law before the government can deprive an individual of life, liberty, or property. The Ninth Amendment states that rights not explicitly set forth in the Constitution may still exist. Taken together, these amendments indicate that the Constitution was written to erect a barrier between individuals and an overly intrusive and regulatory government. In modern society, this right to privacy guarantees the right to use birth control, the right to an abortion, and the right to participate in consensual sexual relations.
Example of a Right to Privacy Analysis
Most states have statutes criminalizing consensual incest, which is sexual intercourse between family members who cannot legally marry. If an individual attacks a consensual incest statute as unconstitutional under the right to privacy, the court will balance the state’s interest in preventing harm to an infant, such as birth defects, with an individual’s interest in having consensual sexual intercourse with a family member, using strict scrutiny. If the court finds that the government interest is compelling, it can uphold the statute as long as it is not vague or overbroad.
This page titled 3.5: The Right to Privacy was last modified on Mon, 31 Aug 2026 13:14:27 GMT and is shared under a CC BY-NC-SA 4.0 license and was authored, remixed, and/or curated by Mark C Fields and Carmyn A. Radetic-Fields.
The book could not be loaded just now.