法律英语：11 The Constitutional Right to Privacy

by Michael W. Flynn
First, a disclaimer: Although Legal Lad is an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction².  Legal Lad does not intend to create an attorney-client relationship with any listener.  

Today’s topic is the constitutional right to privacy.  Dewayne wrote:

Is there a Constitutional right to privacy?  Some sources say that it is implicit³ in the Constitution, while others say that the right to privacy is a myth.

Well Dewayne, you have just stumbled across one of the most hotly contested constitutional questions today. The short answer is that current Supreme⁴ Court jurisprudence recognizes a right to privacy embedded⁵ in the Constitution, but at least two sitting justices and many legal scholars have called this “right” a myth propagated by “activist” judges.

At this point in the episode, Legal Lad normally cites to the text of the constitution to begin his analysis. However, the words “right to privacy” simply do not appear in the document. The first case that expressly recognized a right to privacy was Griswold v. Connecticut, a 7-2 opinion. The State of Connecticut had passed a law criminalizing the distribution of any drug or medicinal instrument for the purpose of preventing conception in any situation. Estelle Griswold, the director of a New Haven⁶ Planned Parenthood clinic, was arrested after a married couple was given contraceptives by a doctor at the clinic. The director challenged the constitutionality of the law, arguing that it violated due process rights under the Fourteenth Amendment⁷.

The court first recognized that there was no text in the Constitution that expressly guaranteed a right to “privacy.”  Rather, the court reviewed past decisions in which it had applied⁸ rights not found in the text of the Constitution to certain situations.

For example, the First Amendment does not expressly create a right to associate with other people who share your beliefs. But, the First Amendment does guarantee the right to free speech. If you associate with an organization that promulgates⁹ a specific message, you are effectively speaking. The court held that the government could not intrude¹⁰ upon speech, and similarly could not intrude upon associating with others who share those ideas and disseminate¹¹ them. In this way, the right to associate exists within the First Amendment, even though that right is not expressly granted. The court also cited the Fourth, Fifth, and Ninth Amendments¹², noting that they all created zones of privacy into which the government could not intrude.

The court characterized those cases, noting they “suggest that specific guarantees in the Bill of Rights have penumbras¹³, formed by emanations from those guarantees that help give them life and substance.” By citing to these various “penumbras” of privacy, the court concluded that the Constitution implicitly¹⁴ prohibited the government from intruding¹⁵ into an area of life so private as the marital¹⁶ bed.

The dissenting¹⁸ opinions by Justices Stewart and Black argued that this “penumbra” analysis was simply absurd. They argued, and some scholars have agreed, that such a holding would allow the court to invent various rights under the Constitution simply by calling them privacy rights.

Indeed, this privacy holding was soon extended in subsequent cases. The court held that the government could not deny contraceptives to unmarried couples, and later applied this right to privacy in Roe¹⁹ v. Wade²⁰ to conclude that the constitution protects a woman’s right to obtain an abortion²¹. That right has been tested over time, but in each case where the right to an abortion has been challenged, the court has not accepted the invitation by abortion opponents to overrule Griswold, and overrule the implied right to privacy contained in the Constitution. This challenge to the implied privacy right has also been at issue in cases involving consensual noncommercial sex, such as Lawrence v. Texas. In that case, the court struck down a Texas statute²² that prohibited sodomy between men, holding that the right to privacy extends to acts of consensual sex between two individuals, and the government cannot intrude into those acts. Again, the right to privacy was invoked²³, and reaffirmed in that case.

So, to answer Dewayne’s question, it depends on whom you ask about this right to privacy. Under current Supreme Court jurisprudence, the right exists, and has been applied to exclude the government from interfering²⁴ in several aspects of people’s private lives. The right to privacy is no more a “myth” than any other right under the Constitution.

Some justices on the court, including Justices Scalia and Thomas, have expressly stated in dissent¹⁷ that the right to privacy does not exist in the Constitution, and that Griswold was incorrectly decided²⁵. These justices would argue that the right is a myth, and was created by liberal members of the court.

Of course, the Supreme Court could one day overrule Griswold and the underlying²⁶ right to privacy. The court might limit that right. The court might expand that right. We have no choice but to wait and see. For now, the right to privacy exists; it is not a myth.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful²⁷ Life.  Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.

You can send questions and comments to。。。or call them in to the voicemail line at 206-202-4LAW.  Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

Legal Lad's theme music is "No Good Layabout" by Kevin MacLeod.

 

1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 implicit   

a.暗示的，含蓄的，不明晰的，绝对的

参考例句：

• A soldier must give implicit obedience to his officers. 士兵必须绝对服从他的长官。
• Her silence gave implicit consent. 她的沉默表示默许。

4 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

5 embedded   

a.扎牢的

参考例句：

• an operation to remove glass that was embedded in his leg 取出扎入他腿部玻璃的手术
• He has embedded his name in the minds of millions of people. 他的名字铭刻在数百万人民心中。

6 haven   

n.安全的地方，避难所，庇护所

参考例句：

• It's a real haven at the end of a busy working day.忙碌了一整天后，这真是一个安乐窝。
• The school library is a little haven of peace and quiet.学校的图书馆是一个和平且安静的小避风港。

7 amendment   

n.改正，修正，改善，修正案

参考例句：

• The amendment was rejected by 207 voters to 143.这项修正案以207票对143票被否决。
• The Opposition has tabled an amendment to the bill.反对党已经就该议案提交了一项修正条款。

8 applied   

adj.应用的；v.应用，适用

参考例句：

• She plans to take a course in applied linguistics.她打算学习应用语言学课程。
• This cream is best applied to the face at night.这种乳霜最好晚上擦脸用。

9 promulgates   

v.宣扬（某事物）( promulgate的第三人称单数 )；传播；公布；颁布（法令、新法律等）

参考例句：

• The present ordinary housing standard is the municipal government promulgates in 2005. 现行普通住房标准是市政府于2005年颁布的。 来自互联网
• The government promulgates a decree. 政府颁布法令。 来自互联网

10 intrude   

vi.闯入；侵入；打扰，侵扰

参考例句：

• I do not want to intrude if you are busy.如果你忙我就不打扰你了。
• I don't want to intrude on your meeting.我不想打扰你们的会议。

11 disseminate   

v.散布；传播

参考例句：

• We should disseminate science and promote the scientific spirit.普及科学知识，弘扬科学精神。
• We sincerely welcome all countries to disseminate their languages in China.我们真诚地欢迎世界各国来华推广本国语言。

12 amendments   

（法律、文件的）改动( amendment的名词复数 )； 修正案； 修改； （美国宪法的）修正案

参考例句：

• The committee does not adequately consult others when drafting amendments. 委员会在起草修正案时没有充分征求他人的意见。
• Please propose amendments and addenda to the first draft of the document. 请对这个文件的初稿提出修改和补充意见。

13 penumbras   

n.黑影周围的半阴影( penumbra的名词复数 )；半影；边缘；外围

参考例句：

• What peaches and what penumbras! Whole families shopping at night! 多美的鲜桃，明暗交加多么诱人！整家整户在晚上逛市场！ 来自互联网

14 implicitly   

adv. 含蓄地, 暗中地, 毫不保留地

参考例句：

• Many verbs and many words of other kinds are implicitly causal. 许多动词和许多其他类词都蕴涵着因果关系。
• I can trust Mr. Somerville implicitly, I suppose? 我想，我可以毫无保留地信任萨莫维尔先生吧？

15 intruding   

v.侵入，侵扰，打扰( intrude的现在分词)；把…强加于

参考例句：

• Does he find his new celebrity intruding on his private life? 他是否感觉到他最近的成名侵扰了他的私生活？
• After a few hours of fierce fighting,we saw the intruding bandits off. 经过几小时的激烈战斗，我们赶走了入侵的匪徒。 来自《简明英汉词典》

16 marital   

adj.婚姻的，夫妻的

参考例句：

• Her son had no marital problems.她的儿子没有婚姻问题。
• I regret getting involved with my daughter's marital problems;all its done is to bring trouble about my ears.我后悔干涉我女儿的婚姻问题, 现在我所做的一切将给我带来无穷的烦恼。

17 dissent   

n./v.不同意，持异议

参考例句：

• It is too late now to make any dissent.现在提出异议太晚了。
• He felt her shoulders gave a wriggle of dissent.他感到她的肩膀因为不同意而动了一下。

18 dissenting   

adj.不同意的

参考例句：

• He can't tolerate dissenting views. 他不能容纳不同意见。
• A dissenting opinion came from the aunt . 姑妈却提出不赞同的意见。

19 roe   

n.鱼卵；獐鹿

参考例句：

• We will serve smoked cod's roe at the dinner.宴会上我们将上一道熏鳕鱼子。
• I'll scramble some eggs with roe?我用鱼籽炒几个鸡蛋好吗？

20 wade   

v.跋涉，涉水；n.跋涉

参考例句：

• We had to wade through the river to the opposite bank.我们只好涉水过河到对岸。
• We cannot but wade across the river.我们只好趟水过去。

21 abortion   

n.流产，堕胎

参考例句：

• She had an abortion at the women's health clinic.她在妇女保健医院做了流产手术。
• A number of considerations have led her to have a wilful abortion.多种考虑使她执意堕胎。

22 statute   

n.成文法，法令，法规；章程，规则，条例

参考例句：

• Protection for the consumer is laid down by statute.保障消费者利益已在法令里作了规定。
• The next section will consider this environmental statute in detail.下一部分将详细论述环境法令的问题。

23 invoked   

v.援引( invoke的过去式和过去分词 )；行使（权利等）；祈求救助；恳求

参考例句：

• It is unlikely that libel laws will be invoked. 不大可能诉诸诽谤法。
• She had invoked the law in her own defence. 她援引法律为自己辩护。 来自《简明英汉词典》

24 interfering   

adj. 妨碍的 动词interfere的现在分词

参考例句：

• He's an interfering old busybody! 他老爱管闲事！
• I wish my mother would stop interfering and let me make my own decisions. 我希望我母亲不再干预，让我自己拿主意。

25 decided   

adj.决定了的，坚决的；明显的，明确的

参考例句：

• This gave them a decided advantage over their opponents.这使他们比对手具有明显的优势。
• There is a decided difference between British and Chinese way of greeting.英国人和中国人打招呼的方式有很明显的区别。

26 underlying   

adj.在下面的，含蓄的，潜在的

参考例句：

• The underlying theme of the novel is very serious.小说隐含的主题是十分严肃的。
• This word has its underlying meaning.这个单词有它潜在的含义。

27 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。