NCJ Number
50655
Journal
Yale Law Journal Volume: 87 Issue: 8 Dated: (JULY 1978) Pages: 1579-1600
Date Published
1978
Length
22 pages
Annotation
THE TRANSLATION OF THE PERSONAL PHILOSOPHY OF SUPREME COURT JUSTICE DOUGLAS ABOUT THE RIGHT TO PRIVACY INTO ACCEPTABLE LEGAL DOCTRINE, PARTICULARLY IN THE GRISWOLD CASE, IS DISCUSSED.
Abstract
THE PRINCIPLE OF PRIVACY WAS FIRST APPLIED IN THE LAW AS A SUBCATEGORY OF PROPERTY OR AS A BREACH OF TRUST. IT HAS DEVELOPED DURING THE 20TH CENTURY INTO A WIDELY RECOGNIZED AND INDEPENDENT RIGHT IN BOTH TORT AND CONSTITUTIONAL LAW. THE RIGHT TO PRIVACY IS DEFINED AS AN INDIVIDUAL'S RIGHT TO CHOOSE HOW HE OR SHE WILL CONDUCT PERSONAL ASPECTS OF LIFE AND WHEN TO SHARE PERSONAL AFFAIRS WITH OTHERS. THROUGHOUT HIS CAREER, JUSTICE DOUGLAS HAS PERSONALLY BELIEVED IN THE VALUE OF PRIVACY, ALTHOUGH SOME OF HIS EARLY OPINIONS DID NOT REFLECT THIS BELIEF. THE EVOLUTION OF HIS PHILOSOPHY CULMINATED WITH THE RECOGNITION OF PRIVACY AS A BASIC NATURAL RIGHT IN 1961. THE GRISWOLD VERSUS CONNECTICUT CASE IN 1965 REFLECTS THE OPINION OF DOUGLAS IN A PENUMBRAL REALM RATHER THAN A NATURAL RIGHTS APPROACH. THE CASE IS AN ATTEMPT AT CONSTITUTIONAL FORMALISM, AND DOUGLAS USED THE CASE AS FORMAL JUSTIFICATION FOR THE RIGHT TO PRIVACY. THE WRITINGS OF DOUGLAS ILLUSTRATE THE DEVELOPMENT OF A PERSONAL PHILOSOPHY ABOUT PRIVACY INTO A BROADER CONSTITUTIONAL PRINCIPLE OF INDIVIDUALITY. ACCORDING TO DOUGLAS, THE CONSTITUTION GUARANTEES THE INDIVIDUAL THREE BASIC AND INTERRELATED INDIVIDUAL RIGHTS: SELF-FULFILLMENT, NONCONFORMITY, AND DIGNIFIED TREATMENT BY THE GOVERNMENT. THE SUPPORT OF DOUGLAS FOR THE TRIPARTITE PRINCIPLE OF INDIVIDUALITY HAS PERMEATED HIS OPINIONS ON A WIDE RANGE OF CONSTITUTIONAL AND EXTRACONSTITUTIONAL RIGHTS. ALTHOUGH DOUGLAS SUCCEEDED IN TRANSLATING HIS PERSONAL PHILOSOPHY INTO ACCEPTABLE LEGAL DOCTRINE IN THE GRISWOLD CASE, THE CASE DID NOT ADEQUATELY DISTINGUISH HIS PRIVACY THEORY FROM DISCREDITED THEORIES OF ECONOMIC SUBSTANTIVE DUE PROCESS. (DEP)