Junior Tatis

04/04/14
AP Government and Politics
Mrs. Derstine-Desai
Supreme Court Legal Brief
Life, Liberty and Privacy?
The United States Constitution protects us from many things and guarantees
us many rights and privileges, although how far do these rights extend. For an
example, do we have the right our privacy, of our homes, bodies and choices, and are
we at liberty to makes certain decisions that effect the people around us, or the
children that we raise. Although the Constitution does not express the right to
privacy in its article nor does the Bill of Rights, so where do we inherent these
rights, and how are they protected.
Over the years the United States Supreme Court has ruled on many cases
guaranteeing and expanding the right to privacy that protects decisions of life, birth,
abortion, and contraception. There are a number of provisions in the Constitution
and Bill of Rights that justify a fundamental right to personal liberty and privacy.

The First Amendment The First Amendment is one of the most important
amendments in the Bill of Rights. It is best known for protecting free speech,
although along with protecting free speech, the First Amendment guarantees
the privacy of beliefs. As it states in the Bill of Rights, Congress shall make
no law respecting an establishment of religion, or prohibiting the free
exercise thereof (U.S. Const. amend. I, sec. 1). What this states is that the
there may be no federal laws that interfere with the practice of religion, and

therefore as interpreted by the Supreme Court, justifies a right of privacy of

beliefs.

The Third Amendment The Third Amendment is a rather silent

amendment, created to protect the colonist who had their homes taken over
by soldiers. While not mentioned much in court, what is known of the Third
Amendment is that it creates a right to privacy of home. No Soldier shallbe
quartered in any house, without the consent of the Owner (U.S. Const.
amend III, sec. 1). It is important to take away from this piece of the
amendment that, the Owner of such house has the right to deny a Soldier of
housing on their property, this creates a sense of privacy in ownership and
therefore justifies the right to privacy of home.

The Fourth Amendment The Fourth Amendment protects people from

random search and seizures. This creates a sense of privacy of person
(yourself) and possessions (what you own). The amendment states, The
right of the people to be secure in theirs persons, houses, papers, and effects,
against unreasonable searches and seizures (U.S. Const. amend. IV, sec. 1).
While the Fourth Amendment is usually associated with criminals, many fail
to realize that it creates ownership, and that your property or yourself
cannot be searched for any reason without probable cause and/or a warrant.

The Ninth Amendment The Ninth Amendment simply gives the rights not
listed in the Constitution, or its amendments to the people. This means that
because the Constitution does not explicitly create a right to privacy, the
people hold that right that is not enumerated in the Constitution.

The Fourteenth Amendment The Fourteenth Amendment is very

important because of one simple clause. nor shall any State deprive any
person of life, liberty, or property, without the due process of law (U.S.
Const. amend. XIV sec. 1). The due process clause states that no person shall
be deprived of liberty. Liberty is defined as The state of being free within
society from oppressive restrictions imposed by authority on ones way of
life, behavior, or political views (Liberty def. 1). With this definition and
the due process clause, we are able to understand that a person in the United
States has the rights of making choices of life, behavior, or political views,
without interference from a government.

One of the first times that our rights to privacy and liberty were questioned in
the Supreme Court came during 1922 with Meyer v. Nebraska. After World War One,
many towns and cities began to ban the use and teaching of foreign languages; some
towns went as far to banning specifically German. The state of Nebraska enacted
the Siman Act, imposing many restrictions on foreign language. Robert Meyer taught
German in a private school and because he taught German, which was restricted, he
was convicted and fined a total of $25 ($294 today). The question is can the state
prohibit what students learn, or what parents choose for their children to learn?
Does it violate the Fourteenth Amendments due process clause? The Supreme Court
found the law to be unconstitutional and in violation of the personal liberty of Meyer
and other teachers. The Supreme Court reasoned that liberty does not only extend
to our bodies, it includes our right to make our own choices in the pursuit of
happiness. Meyer chooses to be a teacher, and the parents of the children whom

Meyer taught choose for Meyer to teach their children; it is in violation for the state
to interfere with that liberty. While this Court has not attempted to define with
exactness the liberty thus guaranteed, the term has received much consideration
and some of the included things have been definitely stated. Without doubt, it
denotes not merely freedom from bodily restraint, but also the right of the
individual to contract, to engage in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to enjoy those
privileges long recognized at common law as essential to the orderly pursuit of
happiness by free men (Meyer v. State of Nebraska). While as stated in the quote,
the court did not apply a direct meaning to liberty and our right to privacy, the court
was able to fairly rule and create a precedent, that there is liberty of decisions and
that a sense of privacy does exist for the people.
Three years after the Supreme Court set its first precedent on the right to
privacy and personal liberty, another major case came upon them. Pierce v. Society
of Sisters (1925) argued whether a Oregon Law violated the liberty of parents to
lead the education of their children. In 1922, Oregon created a law that basically
aimed to eliminate parochial schools. The case was decided along with Pierce v. Hill
Military Academy. The Oregon act required parents to send children between a
certain ages to public school; because of this many parents were concerned of losing
their right to send their children to private and parochial schools. In a unanimous
decision the court decided that there was a fundamental liberty that all the
governments of the country must follow. Creating a set standard for children by

forcing them to accept only one certain type of education is not a fundamental
liberty of the state. The Supreme Court reasoned that the state did not own the
children and were not a property of the state, the parents nurture and raises the
child and therefore are charged with directing their destiny. Justice McReynolds put
this in terms when he wrote on the majority opinion, The fundamental theory of
Liberty upon which all governments in this Union repose excludes any general
power of the State to standardize its children by forcing them to accept instruction
from public teachers only. The child is not the mere creature of the State; those who
nurture him and direct his destiny have the right, coupled with the high duty, to
recognize and prepare him for additional obligations (Pierce v. Society of Sisters).
Years after Pierce v. Society of Sisters the court ruled on another case based
on the right to privacy although this case, had to do not with the education of
children but on much more controversial topics. In Griswold v. Connecticut; the
state enacted a law that prohibited the use of any drug, medicinal article or
instrument for the purpose of preventing conception. Estelle Griswold and Dr. C
Lee Buxton opened a birth control clinic in New Haven Connecticut. After opening
the clinic, the two were arrested, tried, and found guilty. Griswolds legal team
argued that the statue violated the 14th Amendment. The Supreme Court questioned
whether the Constitution protected the right of marital privacy against state
restrictions on contraceptives. It was decided that the Constitution did not protect
the right to privacy, although the Bill of Rights created loopholes to establish that
right. The 1st, 3rd, 4th and 9th Amendments create a path to establishing the
precedent for a new constitutional right. Justice Douglas wrote the majority stating,

"Specific guarantees in the Bill of Rights have penumbras, formed by emanations

from those guarantees that help give them life and substance. Various guarantees
create zones of privacy . . . . The Third Amendment, in its prohibition against the
quartering of soldiers 'in any house' in time of peace without the consent of the
owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the
'right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.' The Fifth Amendment, in its Self-Incrimination
Clause, enables the citizen to create a zone of privacy which government may not
force him to surrender to his detriment. The Ninth Amendment provides: 'The
enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people'" (Griswold v. Connecticut). This again
continues to elaborate on the various privacies created by the amendments.
Griswold v. Connecticut opened the door for the discussion on abortion, 6
years after the landmark case, another landmark case came to the hands of the
Supreme Court. Roe v. Wade is one of the most controversial rulings made by the
Court. It continues to be argued today because of the morals behind abortion. Jane
Roe sued Wade, on Texas abortion laws prohibiting all abortions. The court argued
whether the Constitution protected the right of women to terminate her pregnancy.
Although while many believe that this is only what the Court questioned, it took a lot
of consideration into when abortion became murder for an example, in what stage
in a womans pregnancy was abortion the actual killing of a human rather than a
embryo. In Griswold v. Connecticut the Supreme Court guaranteed the right to
privacy protected by the 14th Amendment to woman attempting to avoid pregnancy.

For this reason it was reasoned that the 14th Amendment continues to protect
woman against unwanted pregnancy, although the ruling created a fine line
between when an abortion became murder and it should be illegal. The
Constitution does not explicitly mention any right of privacy. In a line of decisions,
however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 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. In varying contexts, the Court or
individual Justices have, indeed, found at least the roots of that right in the First
Amendment; in the Fourth and Fifth Amendments; in the penumbras of the Bill of
Rights; in the Ninth Amendment; or in the concept of liberty guaranteed by the first
section of the Fourteenth Amendment. These decisions make it clear that only
personal rights that can be deemed "fundamental" or "implicit in the concept of
ordered liberty," are included in this guarantee of personal privacy. They also make
it clear that the right has some extension to activities relating to marriage,
procreation, contraception, family relationships, and child rearing and education.
(Roe v. Wade). This quote begins to mention the origins of privacy although explains
how the loopholes created by the Bill of Rights constitutes a certain privacy to
people especially actions that do not involve the state.
Another very controversial landmark decision was in Lawrence v. Texas
(2003). The State of Texas had several laws banning sodomy. When the Harris
County Sherriffs department responded to a firearm call to Lawrences house, they
reported seeing sexual activity between Lawrence and his male partner. They were
both arrested and convicted under anti-sodomy laws. The Court went on to rule

again that the Due Process Caluse of the 14th Amendment gave the men the full right
to engage in their conduct without intervention of the government. The reason
behind this was that the men were having consensual sex in the privacy of their
PRIVATE home. The law was unequal towards homosexuals because heterosexuals
werent named under the law. The law also violated the Due Process clause because
it was a liberty that was not of interest to the state and therefore had no effect on
the state, what the men choose to do in the privacy of their home was between
them. It was said that Liberty presumes an autonomy of self that includes freedom
of thought, belief, expression, and certain intimate conduct. (Lawrence v. Texas)
and what this means is that there are certain areas in which the state nor federal
government can interfere in. This ruling goes on to only set a further precedent for
Griswold v. Connecticut and Roe v. Wade.
Onto a different set of privacy that involved life and death is Washington v.
Glucksberg (1997), where the issue of assisted suicide was argued. Dr. Harold
Glucksberg argued that the Washington state ban on assisted suicide was
unconstitutional. He believed that the Due Process clause of the 14th Amendment
protected this right. In its decision the court believed it was not a fundamental
liberty because the practice has been frowned upon for centuries, the states have a
rationale to prohibit assisted suicide to protect medical ethics, and shield disabled
or ill people for being convinced to end their lives. More specifically, for over 700
years, the Anglo American common law tradition has punished or otherwise
disapproved of both suicide and assisting suicide. (Washington v. Glucksberg).
Assisted suicide is a common thing that has been frowned upon for years and the

ruing in this case is a very huge impact to laws such as Lawrence v. Texas, Griswold
v. Connecticut, and Roe v. Wade because, even though the topics of the case are
different, abortion has been frowned upon by a mass majority of the people and
because of this such a precedent could be used to defend abortion laws.
The final case to speak about is fairly old, although it has to do with the
natural privacies and rights of a citizen. In 1958 Kent v. Dulles was decided, where
Rockwell applied for a passport and was denied because of his previous relations
with the Communist Party. The court belied that the right to travel is an inherent
element of liberty and it cannot be denied to American citizens. The right to travel is
apart of personal liberty, regardless of what it is a necessity for a passport to travel,
and to establish citizenship upon re-entry, to deny a citizen a passport to deny this
status is unconstitutional. The right to travel is a part of the "liberty" of which the
citizen cannot be deprived without due process of law under the Fifth Amendment.
So much is conceded by the Solicitor General. In Anglo-Saxon law, that right was
emerging at least as early as the Magna Carta (Kent v. Dulles). This law is important
because it was one of the cases that began to create entitled rights to privacy where
the government could not infringe upon except in cases of extreme circumstances.
In conclusion, privacy has been a controversial toic that has been argued
aggressively by the Supreme Court of the United States. It is important to take away
that the privacy is actually not listed in the Constitution and instead created by
penumbras in the Bill of Rights. With these it creates a certain checklist to guarantee
the rights of a person of the United States.

Bibliography:
MEYER v. NEBRASKA. The Oyez Project at IIT Chicago-Kent College of Law. 16 March
2014. http://www.oyez.org/cases/1901-1939/1922/1922_325
PIERCE v. SOCIETY OF SISTERS. The Oyez Project at IIT Chicago-Kent College of
Law. 17 March 2014. http://www.oyez.org/cases/1901-1939/1924/1924_583
GRISWOLD v. CONNECTICUT. The Oyez Project at IIT Chicago-Kent College of Law.
16 March 2014. <http://www.oyez.org/cases/1960-1969/1964/1964_496>.
ROE v. WADE. The Oyez Project at IIT Chicago-Kent College of Law. 19 March 2014.
http://www.oyez.org/cases/1970-1979/1971/1971_70_18
LAWRENCE AND GARNER v. TEXAS. The Oyez Project at IIT Chicago-Kent College of
Law. 19 March 2014. <http://www.oyez.org/cases/2000-2009/2002/2002_02_102>.
WASHINGTON v. GLUCKSBERG. The Oyez Project at IIT Chicago-Kent College of
Law. 17 March 2014. <http://www.oyez.org/cases/1990-1999/1996/1996_96_110>
KENT v. DULLES. The Oyez Project at IIT Chicago-Kent College of Law. 15 March
2014. <http://www.oyez.org/cases/1950-1959/1957/1957_481>