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Privacy: The Rehnquist Court's Unmentionable Right
Tulsa Law Journal (2000)
  • Martin H. Belsky, University of Akron School of Law

"Privacy rights" were once the terms used broadly by the Justices of the Supreme Court to indicate constitutional protection of certain personal decisions, especially those involving family, sexual, and reproductive choices made by an individual as against government intrusion. The premise was the "right to be left alone," articulated by Justice Brandeis in his dissent in Olmstead v. United States.

This "right of privacy" was the constitutional basis to bar restrictions on the sale and use of contraceptives devices, on abortion, on the right to marry, and on the nature of a family. Later it had to be distinguished when the Court upheld restrictions on sexual orientation and the "right to die."

"Privacy" was also the term used to indicate the right to exclude government from interfering with private rights of association. This includes the right to choose one's spouse, and the right to belong to an association and keep that association secret. This freedom to associate or not associate is broad enough to also cover other intimate and expressive activity.

These privacy rights were "fundamental", and any attempt or agreement to restrict them was to be reviewed with the strictest scrutiny. Only a compelling interest could justify restriction, and even then, only if the restriction was narrowly tailored.

But this once helpful categorization of rights has been rejected by the Rehnquist Court. Specifically, in four major decisions of the 1999 Term, a privacy right could have been the basis for the decision or at least have required distinction. Yet the Court barely mentions the term at all. Rather, the Court relies on general "substantive due process," or specific rights "to choose" an abortion," to be left alone," or of "expressive association."

This article will look at this set of cases, and examine if and how rejection of a specific and articulated fundamental right of privacy has affected Supreme Court decision-making.

  • Right of privacy,
  • privacy rights
Publication Date
Citation Information
Martin H. Belsky, Privacy: The Rehnquist Court's Unmentionable Right, 36 Tulsa Law Journal 43 (2000).