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UNLV Retrospective Theses & Dissertations 1-1-1990 Constitutional privacy: The evolution of a doctrine Helena Ann Mandarino University of Nevada, Las Vegas Follow this and additional works at: https://digitalscholarship.unlv.edu/rtds Repository Citation Mandarino, Helena Ann, "Constitutional privacy: The evolution of a doctrine" (1990). UNLV Retrospective Theses & Dissertations. 100. http://dx.doi.org/10.25669/wiw9-40jt This Thesis is protected by copyright and/or related rights. It has been brought to you by Digital Scholarship@UNLV with permission from the rights-holder(s). You are free to use this Thesis in any way that is permitted by the copyright and related rights legislation that applies to your use. For other uses you need to obtain permission from the rights-holder(s) directly, unless additional rights are indicated by a Creative Commons license in the record and/ or on the work itself. 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Ann Arbor, Ml 48106-1346 USA 313 761-4700 800/521-0600 Order Number 1341645 Constitutional privacy: The evolution of a doctrine Mandarine, Helena Ann, M.A. University of Nevada, Las Vegas, 1990 Copyright ©1990 by Mandarino, Helena Ann. All rights reserved. UMI 300 N. Zeeb Rd. Ann Arbor, MI 48106 CONSTITUTIONAL PRIVACY: THE EVOLUTION OF A DOCTRINE by Helena Ann Mandarino A thesis submitted in partial fulfillment of the requirements for the degree of Master of Arts in Political Science Department of Political Science University of Nevada, Las Vegas July, 1990 The thesis of Helena Ann Mandarino for the degree of Master of Arts in Political Science is approved. Chairperson . S'imich, P h . d T .xamining Committee Member, Michael W. Bowers, Ph.D Examining Committee Member, Dina Titus, Ph.D. Graduate Faculty Representative, Thomas Wright, Ph.D. //O' / Graduate Dean, Ronald-Smith, Ph.D. University of Nevada, Las Vegas July, 1990 ii ABSTRACT The constitutional right to privacy has, gradually and precariously, become ingrained in the American legal land­ scape. Recognized as a fundamental individual right, the right to privacy naturally coincides with the political philosophy of Western democracy. Owing to men like Thomas Hobbes and John Locke, the basis of power in society was conceptually converted to the people; specifically, to the individual. The Founding Fathers, in laying down the foun­ dations of American society, pursued the political philoso­ phy of the predominance of the individual in society. Herein lies the legal justification of the right to privacy as a constitutional guarantee. Although the right to privacy is not actually enumer­ ated in the Constitution, over a century of common law precedent and judicial interpretation has authorized certain personal activities as being outside the scope of governmen­ tal regulation. The constitutional defense of such freedoms have been regarded as Fourteenth Amendment due process guarantees to life, liberty, and property. It was not until 1965 that the 'right to privacy' invalidated an intrusive state stutute on its own merit. In Griswold v. Connecticut, ii the Supreme Court ruled that proscribing the use of contra­ ceptives to married couples was unduly burdensome. As interpreted, contraceptive regulation violated personal privacy protected by certain express guarantees within the Bill of Rights including the First, Third, Fourth, Fifth, and Ninth Amendments. These constitutional protections create 'zones of privacy' through association and emanation. The judicial acknowledgment of the right to privacy invited further challenges which involved intensely personal situa­ tions and choices, the most controversial of which is the right to choose abortion. Roe v. Wade was the precedent setting case which granted women the right to choose abor­ tion based on Fourteenth Amendment rights to due process. A succession of subsequent cases made their way to the Supreme Court which clarified the degree of state regulation and in the process expanded the right to privacy and reproductive choice. The most recent cases, however, changed that trend allowing states greater latitude in regulating abortion. Hence, is the volatile nature of the constitutional right to privacy. iii ACKNOWLEDGMENT S The author would like to extend the utmost gratitude to her parents Dolores and Ray Mandarino and brothers and sisters Mickey, Linda, Danny, Lisa, and Pat for their faith, tolerance, and patience. Professional and personal thanks to Professors Jerry Simich and Michael Bowers for their direction and invaluable academic contributions. Special thanks goes to Todd Gilbertson for his immeasurable support. Helena Ann Mandarino TABLE OF CONTENTS ABSTRACT ................................................. ii ACKNOWLEDGMENTS .................... iv Chapter INTRODUCTION ..................................... 1 Goals of the Study 1. EXPLORING THE CONCEPT OF PRIVACY ................. 9 Defining Privacy Evaluating Privacy Ideological Origins of the Right to Privacy The Influence of Classical Liberalism on the American Social Contract 2. THE CONSTITUTIONAL BASIS OF THE RIGHT TO PRIVACY 4 6 Samuel Warren and Louis Brandeis, "The Right to Privacy" Fourth Amendment Privacy Protection Fifth Amendment Privacy Protection Privacy and the Due Process Clause of the Fourteenth Amendment Zones of Privacy The Ninth Amendment 3. PROTECTIONS AFFORDED BY THE RIGHT TO PRIVACY . .83 Privacy and Reproductive Autonomy Privacy, Autonomy and Abortion 4. LIMITATIONS ON THE RIGHT TO P R I V A C Y ............. 120 Limitations on the Right to Abortion CONCLUSION ...................................... 162 v SELECTED BIBLIOGRAPHY ............................. 169 vi THE UNKNOWN CITIZEN (To JS/07/M/378) This Marble Monument is Erected by the State He was found by the Bureau of Statistics to be One against whom there was no official complaint, And all the reports on his conduct agree That, in the modern sense of an old-fashioned word, he was a saint, For in everything he did he served the Greater Community. Except for the War till the day he retired He worked in a factory and never got fired, But satisfied his employers, Fudge Motors Inc. Yet he wasn't a scab or odd in his views, For his Union reports that he paid his dues, (Our report on his Union shows it was sound) And our Social Psychology workers found That he was popular with his mates and liked a drink. The press are convinced that he bought a paper every day And that his reactions to advertisements were normal in every way. Policies taken out in his name prove that he was fully insured, And his Health-card shows that he was once in the hospital but left it cured. Both Producers Research and High-Grade Living declare He was fully sensible to the advantages of the Installment Plan And had everything necessary to the Modern Man, A phonograph, a radio, a car and a frigidaire. Our researchers into Public Opinion are content That he held the proper opinions for the time of year; When there was peace, he was for peace; when there was war, he went. He was married and added five children to the population, Which our Eugenist says was the right number for a parent of his generation, And our teachers report that he never interfered with their education. Was he free? Was he happy? The question is absurd; Had anything been wrong, we should certainly have heard. W.H. Auden March 1939 INTRODUCTION We live in a continual competition with society over the ownership of ourselves. Arnold Simmel, "Privacy Is Not an Isolated Freedom" Society is a guardian and is responsible for fostering the general moral, intellectual and emotional framework of its citizens.1 In order to endure, the government must be able to indoctrinate a political covenant among its members. Thus, licensed obstetricians welcome us into state regulated hospitals; we are fed FDA approved baby food so that we may grow up and mandatorily attend an educational institution which is run by local authorities in accordance with state programs following provisions suggested by the federal Department of Education. In effect, the government sys­ tematizes nearly every aspect of our lives. This is the ^ee, for example, Plato's Republic, trans. G.M.A. Grube (Indianapolis: Hackett Publishing Company, 1974), in which Socrates promoted strict discipline and education of youth through compre­ hensive state-run instructional programs to make the young good citizens. Jean-Jacques Rousseau also advanced the notion of societally-sponsored education, because all citizens "have equally a need for guidance. [They] must be taught what it is they will.

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