Privacy in Constitutional Law

Main points

We reviewed the major decisions in three Supreme Court cases: Olmstead v. United States, Griswold v. Connecticut, and Roe v. Wade.

The aim was not to evaluate the claims about Constitutional law or to understand why the different Courts ruled the way they did, with privacy losing in Olmstead and winning in the two later cases.

Rather, I just wanted to understand how the authors of these opinions were thinking of privacy.

My comparison

Brandeis thought of privacy as involving control over information. Douglas and Blackman thought of it as involving control over major decisions. I tried to explain why the latter two justices nonetheless might have thought it was appropriate to call what they were talking about privacy.

Some of us thought it was appropriate to call the decisions about using contraception or abortion “private.” Others thought that the opinions relied on the value of liberty to make those decisions rather than privacy.

While we did not resolve this, we did meet our goal of identifying the different understandings of privacy in these cases.

Key concepts

1. How privacy is understood in Brandeis’s dissent in Olmstead
2. How privacy is understood the majority opinions in Griswold and Roe.
3. The advantages and disadvantages of the broader way of understanding privacy.