The word "privacy" does not appear in the Constitution. The Fourth Amendment protects people's "persons, houses, papers, and effects" from unreasonable searches, and the Ninth says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." So a hard question follows from the rights you have studied: may courts protect rights the text does not name, and if so, how do they find them?
| Year | Case | Holding |
|---|---|---|
| 1965 | Griswold v. Connecticut (7–2) | A state ban on married couples' use of contraceptives violated a right of marital privacy, drawn from several amendments and from liberty. |
| 1973 | Roe v. Wade (7–2) | The Due Process Clause's protection of liberty includes a right to choose abortion, under a trimester framework. |
| 1992 | Planned Parenthood v. Casey (5–4) | Kept Roe's central holding but replaced the trimester framework with an "undue burden" test. The Court overruled Roe and Casey in 2022. |
| 1997 | Washington v. Glucksberg (9–0) | No constitutional right to assisted suicide; an unlisted right must be "deeply rooted in this Nation's history and tradition." |
Why it works
The disagreement is about method, and each side has serious arguments. One view says the Due Process Clause protects "liberty," the Ninth Amendment warns against reading the list as complete, and courts must use reasoned judgment to protect basic personal choices, as they have for marriage and raising children. The other view says judges should recognize only unlisted rights that are "deeply rooted in this Nation's history and tradition," because otherwise unelected judges decide questions the Constitution leaves to voters. Glucksberg stated the history-and-tradition test; Justice Harlan's dissent in Poe v. Ullman (1961), which called tradition "a living thing," is the classic statement of reasoned judgment. These cases are taught here only as law: the clause, the test and the holding.
Key idea
The Ninth Amendment says listing rights does not deny others. The Court has recognized some unlisted rights through the Due Process Clause, and justices disagree about how to identify them. Roe (1973) recognized a right to abortion and Casey (1992) kept its central holding; the Court overruled both in 2022.
Worked example: Which text?
A student says, "The right to privacy is in the Fourth Amendment, word for word." Is that right?
- The Fourth Amendment protects against unreasonable searches of persons, houses, papers and effects.
- The word "privacy" appears nowhere in the Constitution.
Answer: No; privacy protections are drawn from the text, not stated in it.
Worked example: Which view?
A judge asks whether a claimed right is "deeply rooted in this Nation's history and tradition." Which view of unlisted rights is that, and which case stated it?
- The phrase limits unlisted rights to those with deep historical roots.
- Washington v. Glucksberg (1997) stated the test when it held there is no constitutional right to assisted suicide.
Answer: The history-and-tradition view; Washington v. Glucksberg.
Common mistake
Thinking the word "privacy" appears in the Constitution, or treating the debate as settled by a slogan. The question is whether and how courts should recognize unlisted rights. State each side's reasoning: liberty and the Ninth Amendment on one side; history, tradition and democratic choice on the other.