CJ 4450 Final: LS notes section 3.1

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Criminal Justice
CJ 4450
Marian Williams

Right to Privacy No specific reference to privacy in the Constitution Legalistic views: Some who support strict construction and original intent state that there is no right to privacy Others who support the same claim that privacy only extends to those protections found in the Constitution Others look at the wording of the NinthAmendment to claim a full right to privacy Moralistic views: Libertarians argue that there is an absolute right from government interference in our private lives and that morality should be kept out of the law Conservatives argue that government interference is necessary to protect us from ourselves and that moralitys place is in the law Liberals are somewhat inbetween Amajority of legal scholars and the public feel there is a right to privacy; the question is: what is the extent of it? Constitutional foundations 1stAmendment: freedom of thought and association 3rdAmendment: prohibits quartering of soldiers during peacetime 4thAmendment: freedom from unreasonable search and seizures 5thAmendment: due process and protection from ourselves (selfincrimination) 9thAmendment: the people have other rights not listed in the Constitution 14thAmendment: state due process USSC delved into privacy issues in the early 1920s when it started reading the liberty part of the 14thAmendment to include privacy In Olmstead v. US (1928), Justice Brandeis state that the right to be left alone is the bedrock of autonomy (from dissent) Despite this, there are times when the state has a compelling interest to restrict privacy Examples: Promotion of public morality (alcoholprohibition, etc) Protection of individual psychological and mental health Improving the quality of life Buck v. Bell (1927) Issue: does a compulsory sterilization policy violate the privacy right to procreate? USSC said no; the state had a compelling interest to prevent certain individuals from having children: those who are manifestly unfit from continuing their kind Since then, the USSC has recognized the right to have children On the other side of this is the right to birth control Griswold v. Connecticut (1965) Issue: is a state law that makes the use of birth control and counseling about birth control a violation of the right to privacy? USSC said yes; the law is unnecessarily broad, as it infringed not only on the sale and manufacture, but also the use of birth control Extended to nonmarried couples 7 years later The Griswold case is considered the landmark case because it create a constitutional right to privacy However, there were differences in the decision as to where the right existed 2 Justices claimed it was found in the 1st, 3rd, 4th, 5th, and 9thAmendments 2 Justices said it was found in the 9thAmendment only 2 Justices said it was found in the 14thAmendment only 2 Justices said the right didnt exist altogether 1 Justice said it was found in both the 9th and 14thAmendments Many also questioned the extent of the right to privacy, e.g. abortion? Up until Roe v. Wade (1973), states were all over the place regarding abortion laws Most states allowed it for the life of the mother and for rape, incest, and for the likelihood of having a deformed baby
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