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Constitutional FAQ Answer #113

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Q113. "What is the right to privacy and where can I find it in the Constitution?"

A. The right to privacy is not a part of the Constitution, at least not in so many words. The right to privacy would best be seen in the 9th Amendment, which basically says that just because a right is not in the Constitution, does not necessarily mean that it does not exist. The justices of the Supreme Court, in several cases over the past half century, have found that a right to privacy does exist in the Constitution, to a degree. The cases that started the process of the "finding" of this new right began with cases like Loving v Virginia, where it was ruled that the state cannot prevent mixed-race marriages; and like Griswold v Connecticut, where it was ruled that a state cannot prevent a married couple from buying and using condoms. The first mention of a right to privacy was in a dissenting opinion in Olmstead v US in 1928, in which Justice Brandeis argued that the Framers had created a framework for the greatest right of all: "the right to be left alone."

The Supreme Court has found that this right to privacy appears in the Constitution in several pre-existing forms. For example, the police are not allowed to search your home or papers without a warrant, which is a direct protection of privacy. The majority of the justices found a right to privacy in some form, a right which could be expanded. Some justices argued that since there is no right to privacy directly enumerated in the Constitution, such a right does not exist. With all due respect, however, this is exactly the sort of argument that the 9th was designed to counter. The right is far from absolute, and many invasions of privacy, such as drug tests and the census, have been upheld by the Supreme Court.


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