No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Court has also briefly considered yet another aspect of privacy — the idea that certain personal activities that were otherwise unprotected could obtain some level of constitutional protection by being performed in particular private locations, such as the home. In Stanley v. Georgia,1 the Court held that the government may not make private possession of obscene materials for private use a crime. Normally, investigation and apprehension of an individual for possessing pornography in the privacy of the home would raise obvious First Amendment free speech and the Fourth Amendment search and seizure issues. In this case, however, the material was obscenity, unprotected by the First Amendment, and the police had a valid search warrant, obviating Fourth Amendment concerns.2 Nonetheless, the Court based its decision upon a person’s protected right to receive what information and ideas he wishes, which derives from the
right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy,3 and from the failure of the state to either justify protecting an individual from himself or to show empirical proof of such activity harming society.4
The potential significance of Stanley was enormous, as any number of illegal personal activities, such as drug use or illegal sex acts, could arguably be practiced in the privacy of one’s home with little apparent effect on others. Stanley, however, was quickly restricted to the particular facts of the case, namely possession of obscenity in the home.5 In Paris Adult Theatre I v. Slaton,6 which upheld the government’s power to prevent the showing of obscene material in an adult theater, the Court recognized that governmental interests in regulating private conduct could include the promotion of individual character and public morality, and improvement of the quality of life and
tone of society.
It is argued that individual ‘free will’ must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual’s desire to see or acquire obscene plays, movies, and books. We do indeed base our society on certain assumptions that people have the capacity for free choice. Most exercises of individual free choice—those in politics, religion, and expression of ideas—are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. . . . [Many laws are enacted] to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition.7
Furthermore, continued the Court in Paris Adult Theatre I,
[o]ur Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults is always beyond state regulation is a step we are unable to take. . . . The issue in this context goes beyond whether someone, or even the majority, considers the conduct depicted as ‘wrong’ or ‘sinful.’ The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize . . . the States’ ‘right . . . to maintain a decent society.’8
Ultimately, the idea that acts should be protected not because of what they are, but because of where they are performed, may have begun and ended with Stanley. The limited impact of Stanley was reemphasized in Bowers v. Hardwick.9 The Court in Bowers, finding that there is no protected right to engage in homosexual sodomy in the privacy of the home, held that Stanley did not implicitly create protection for
voluntary sexual conduct [in the home] between consenting adults.10 Instead, the Court found Stanley
firmly grounded in the First Amendment,11 and noted that extending the reasoning of that case to homosexual conduct would result in protecting all voluntary sexual conduct between consenting adults, including adultery, incest, and other sexual crimes. Although Bowers has since been overruled by Lawrence v. Texas12 based on precepts of personal autonomy, the latter case did not appear to signal the resurrection of the doctrine of protecting activities occurring in private places.
So, what of the expansion of the right to privacy under the rubric of personal autonomy? The Court speaking in Roe in 1973 made it clear that, despite the importance of its decision, the protection of personal autonomy was limited to a relatively narrow range of behavior.
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. . . . These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 13
Despite the limiting language of Roe, the concept of privacy still retained sufficient strength to occasion major constitutional decisions. For instance, in the 1977 case of Carey v. Population Services Int'l,14 recognition of the
constitutional protection of individual autonomy in matters of childbearing led the Court to invalidate a state statute that banned the distribution of contraceptives to adults except by licensed pharmacists and that forbade any person to sell or distribute contraceptives to a minor under 16.15 The Court significantly extended the Griswold-Baird line of cases so as to make the
decision whether or not to beget or bear a child a
constitutionally protected right of privacy interest that government may not burden without justifying the limitation by a compelling state interest and by a regulation narrowly drawn to express only that interest or interests.
For a time, the limits of the privacy doctrine were contained by the 1986 case of Bowers v. Hardwick,16 where the Court by a 5-4 vote roundly rejected the suggestion that the privacy cases protecting
family, marriage, or procreation extend protection to private consensual homosexual sodomy,17 and also rejected the more comprehensive claim that the privacy cases
stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.18 Heavy reliance was placed on the fact that prohibitions on sodomy have
ancient roots, and on the fact that half of the states still prohibited the practice.19 The privacy of the home does not protect all behavior from state regulation, and the Court was
unwilling to start down [the] road of immunizing
voluntary sexual conduct between consenting adults.20 Interestingly, Justice Blackmun, in dissent, was most critical of the Court’s framing of the issue as one of homosexual sodomy, as the sodomy statute at issue was not so limited.21
Yet, Lawrence v. Texas,22 by overruling Bowers, brought the outer limits of noneconomic substantive due process into question by once again using the language of
privacy rights. Citing the line of personal autonomy cases starting with Griswold, the Court found that sodomy laws directed at homosexuals
seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. . . . When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.23
Although it quarreled with the Court's finding in Bowers v. Hardwick that the proscription against homosexual behavior had
ancient roots, Lawrence did not attempt to establish that such behavior was in fact historically condoned. This raises the question as to what limiting principles are available in evaluating future arguments based on personal autonomy. Although the Court seems to recognize that a state may have an interest in regulating personal relationships where there is a threat of
injury to a person or abuse of an institution the law protects,24 it also seems to reject reliance on historical notions of morality as guides to what personal relationships are to be protected.25 Thus, the parameters for regulation of sexual conduct remain unclear.
For instance, the extent to which the government may regulate the sexual activities of minors has not been established.26 Analysis of this questions is hampered, however, because the Court has still not explained what about the particular facets of human relationships—marriage, family, procreation—gives rise to a protected liberty, and how indeed these factors vary significantly enough from other human relationships. The Court’s observation in Roe v. Wade
that only personal rights that can be deemed 'fundamental' are included in this guarantee of personal privacy, occasioning justification by a
compelling interest,27 provides little elucidation.28
Despite the Court's decision in Lawrence, there is a question as to whether the development of noneconomic substantive due process will proceed under an expansive right of
privacy or under the more limited
liberty set out in Roe. There still appears to be a tendency to designate a right or interest as a right of privacy when the Court has already concluded that it is valid to extend an existing precedent of the privacy line of cases. Because much of this protection is also now settled to be a
liberty protected under the due process clauses, however, the analytical significance of denominating the particular right or interest as an element of privacy seems open to question.