Rethinking the Substantive Due Process Right to Privacy: Grounding Privacy in the Fourth Amendment

Authors

Mary H. Wimberly

First Page

283

Abstract

Little in the jurisprudence of the Supreme Court has spurred as much controversy as the Court's recognition of a constitutional right to privacy. While implicitly acknowledging that such a right is not listed in the text of the Constitution, in Griswold v. Connecticut the Court found that the right existed in the "penumbras" of the amendments to the Constitution.' According to the Court, the right to privacy was present in "emanations" from the guarantees of the Bill of Rights. This reasoning was notoriously extended to abortion in Roe v. Wade. In order to invalidate state regulation of abortion, the Roe Court characterized abortion as an aspect of privacy, which was a substantive, "fundamental" liberty protected under the Fourteenth Amendment. In both of these decisions, the Court announced that an unlisted, substantive right to privacy was inherent in the Fourteenth Amendment's Due Process Clause. This was an expansion of the Court's previously created doctrine, substantive due process. These decisions have since sparked a flurry of debate, among both Supreme Court Justices and legal scholars. Some scholars decry a constitutional right to privacy as wholly lacking textual support, while others find such a right consistent with the purposes underlying the text. Several Justices have also criticized these decisions.

Recommended Citation

Mary H. Wimberly, Rethinking the Substantive Due Process Right to Privacy: Grounding Privacy in the Fourth Amendment, 60 Vanderbilt Law Review 283 (2007)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol60/iss1/7