This September, Jacksonville University celebrated the 235th anniversary of the signing of the United States Constitution with a panel discussion on the right to privacy. The Center for Gender and Sexuality hosted the event and invited experts from the College of Law, School of Humanities, and the Public Policy Institute to guide the conversation.
The United States Constitution ensures the freedoms of American citizens, and outlines the powers and limitations of government—so it is often thought that the right to privacy can be found in the Constitution. But where?
Associate Dean of the College of Law Courtney Barclay, J.D., Ph.D., began the discussion by analyzing the landmark Supreme Court case, Griswold v. Connecticut (1965), which ruled that a right to privacy exists implicitly within the Constitution. She explained that this case articulates “zones of privacy” through amendments such as the First, which includes the right to associate; the Third, which prohibits, in peacetime, nonconsensual quartering of the military; the Fourth, which protects against unreasonable searches and seizures; and the Fifth, which protects against self-incrimination. Dr. Barclay reminded the room of the additional protections provided by the Ninth Amendment, “Just because something is not explicitly stated in the Bill of Rights does not mean your rights do not exist.”
Griswold v. Connecticut was foundational in the expansion of the right to privacy, setting a precedent for future cases related to abortion and contraception, non-procreative sexual activity, and gay marriage. The legal principle of precedent that courts adhere to is known as stare decisis, a doctrine that was cited in 1992 when the Supreme Court upheld the right to abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey. However, in June of 2022, the Supreme Court struck down both Roe and Casey in the Dobbs v. Jackson Women’s Health Organization ruling.
Although the public was surprised by the reversal, Professor of Philosophy Scott Kimbrough Ph.D., explained that the Dobbs decision flowed from a long-standing disagreement among liberal and conservative justices about how to interpret the Constitution. “The majority opinion begins by saying that ‘the critical question is whether the Constitution, properly understood, confers the right to obtain an abortion.’”
The majority answers this question, Dr. Kimbrough articulated, from the standpoint of originalism—the view that rights stated in the Constitution should be interpreted as they would have been at the time of their ratification. The right to an abortion was not recognized in the 18th and 19th centuries when the Constitution and the 14th Amendment were adopted. Roe and related cases that extended the right to privacy to new domains relied on a different interpretive theory known as “living constitutionalism”, he explained. In this approach, general terms such as “equality” must be interpreted in a way that corrects any misconceptions from the past, including the view that women are not the political equals of men. Dr. Kimbrough concluded by noting a problem for originalism: “If usage of language determines meaning, the people of today cannot disagree with our predecessors about what equality means, because any change in usage is a change in meaning.”
Associate Professor of Public Policy Jordan Carr Peterson, J.D., Ph.D., brought the analysis to the states.
“When it comes to privacy law, we can look at the governing status of privacy in the
states and call into question whether states might be doing a better job or the federal
government.” He explained that a reasonable expectation of privacy, established by
Katz v. the United States (1967), has helped define the scope of privacy protections in cases dealing with land seizure and law enforcement searches.
“Regarding substantive privacy, there are many manifestations of this in the American policy state. It involves everything from your right to be free from unreasonable searches and seizures, your right not to incriminate yourself compulsorily if you’re questioned by law enforcement under detention and custodial interrogation, your right to make reproductive choices on your own, and your right to have intimate relations with who you want.”
Dr. Peterson opened the panel up to questions from the audience, and in closing stated, “Privacy is a plural, not a singular when it comes to the law and there are a lot of ways we can approach it. We need to not just think about what the decisions say in the Supreme Court, but how they are interpreted and implemented by the individuals responsible for enforcing on the ground.”
This panel, supported by the Jesse Ball duPont Fund, complies with Jacksonville University’s Constitution Day policy and with state legislation requiring all educational institutions that receive federal funds to implement annual educational programs relating to the U.S. Constitution on September 17. This date was chosen in remembrance of its signing. (PL 108-447, “Consolidated Appropriations Act, 2005,” Dec. 8, 2004; 118 Stat. 2809, 3344-45 (Sec.111).
