Academic journal article Vanderbilt Law Review

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

Academic journal article Vanderbilt Law Review

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

Article excerpt


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.1 According to the Court, the right to privacy was present in "emanations" from the guarantees of the Bill of Rights.2 This reasoning was notoriously extended to abortion in Roe v. Wade.3 In order to invalidate state regulation of abortion, the Roe Court characterized abortion as an aspect of privacy,4 which was a substantive, "fundamental" liberty protected under the Fourteenth Amendment.5 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.6 This was an expansion of the Court's previously created doctrine, substantive due process.7

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,8 while others find such a right consistent with the purposes underlying the text.9 Several Justices have also criticized these decisions.10 Justice Scalia in particular has pointed out that the Court's substantive reading does not fit into the literal text of the Due Process Clause, which focuses on procedure.11 As he has written, the Due Process Clause guarantees only two things: (1) certain procedures, either defined in constitutional text or inherent in the notion of fundamental fairness, and (2) adherence to the substantive guarantees explicitly articulated in specifie constitutional provisions.12 In other words, according to Scalia, the Fourteenth Amendment requires that one's life, liberty, and property not be taken away without due process; it does not state that certain liberties can never be taken away.13 Any affirmative constitutional rights that are applicable to the states under this clause must be present in other substantive provisions of the Constitution.14 The Court cannot manufacture substantive rights under the aegis of "due process,"15 unless these rights can be traced to a specific constitutional provision.

Proponents of a substantive reading of the Due Process Clause argue that certain fundamental substantive rights are inherent in our system of government.16 They further argue that the Due Process Clause was intended to have a substantive component.17 Certain fundamental rights are protected by this clause, including the right to privacy.18

While scholars disagree on whether the right to privacy may be grounded in the Fourteenth Amendment, both sides of the debate seem to agree that the Due Process Clause includes substantive rights found in other provisions of the Constitution. This so-called "incorporation theory" provides that substantive provisions of most of the constitutional amendments have been incorporated into the Fourteenth Amendment's Due Process Clause, and therefore are applicable to the states.19 Thus, if the Court found that one of the amendments incorporated into the Due Process Clause provided constitutional protection of privacy, then it could bridge the gap between the two sides of the debate over the substantive due process right to privacy.

The Fourth Amendment offers one such substantive provision, which may appropriately be applied to the states through the Fourteenth Amendment. The Fourth Amendment protects "the right of the people" to be free from "unreasonable searches and seizures."20 Given that this amendment recognizes an affirmative right and acknowledges the need for people to be secure in their "persons, papers, houses, and effects,"21 the Court should recognize the underlying privacy values of this amendment. In so doing, the Court should shift its analysis from a privacy right created by substantive due process to a privacy right grounded in the Fourth Amendment. …

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