This was all spurred on by an appearance by Senator Rick Santorum on NewsNight with Aaron Brown, specifically the following exchange:
BROWN: Do you think there's a right to privacy in the Constitution? . . . For example, if you'd been a Supreme Court judge in Griswold versus Connecticut, the famous birth control case came up, which centered around whether there was a right to privacy. Do you believe that was correctly decided?
SANTORUM: No, I don't. I write about it in the book. I don't.
. . . BROWN: Why would a conservative argue that government should interfere with that most personal decision?
SANTORUM: I didn't. I said it was a bad law. And... They had the right to make it. Look, legislatures have the right to make mistakes and do really stupid things...but we don't have to create constitutional rights because we have a stupid legislature. And that's the problem here, is the court feels like they have a responsibility to right every wrong. When they do that, unlike a Congress, that if we make a really stupid mistake and we do something wrong, we go back next year or next month and change it, and we've done that. Courts don't do that. They only get cases that come before them and they have to make broad, sweeping decisions that have huge impact down the road.
That's what happened in Griswold. It was a bad law. The court felt, we can't let this bad law stand in place. It's wrong. It was. But they made a -- they created out of whole cloth a right that now has gone far, far from Griswold versus Connecticut.
To begin with, I do have to point out that Santorum makes one mistake (well, plenty, to be sure, but this one jumps out at me): one job of the Supreme Court is to correct things when the legislature is stupid, specifically, when the legislature passes stupidly unconstitutional legislation. In such a case, the SC has to say, "Hey, stupid that law vioaltes a constitutional right." Does the court get to create constitutional rights, pull them out of thin air? Of course not. But if there's a right in there, and it's being violated, the court has to overturn the law. That's what it's there for. And sure, it's really the responsibility of the legislature to go back and correct its mistakes when it makes them. But how long do we give the lege to realize it's made a mistake, and then correct it? How long would Jim Crow have been on the books before the legislature went back to get rid of it, without the federal judiciary pushing at it?
That having been said, does the Constitution really outline a right to privacy? Well, to begin with, we know that it doesn't not allow it. The Ninth Amendment states that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." So it's certainly left open that we could have one. And if you want to argue original intent, you can look back as far as the Federalist Papers, where Andrew Hamilton argues against a Bill of Rights on the grounds that listing the rights that the people do have almost makes it easier for the government to start listing the rights that they don't have. But some politicans won't take "step off my Ninth Amendment rights" for an answer, so we look to caselaw.
The case in question, Griswold v. Connecticut, actually centered around a Connecticut law banning contraceptives for married people. The Supreme Court ruled that the law was unconstitutional, citing a right to privacy found in the "penumbra" of the Bill of Rights and supported by the Ninth Amendment (two judges filed a concurrent opinion that overturned the law via the Due Process clause in the 14th Amendment). Basically, the ruling boils down to the fact that while the Bill of Rights doesn't explicitly outline a right to privacy, that right is implicit in the Amendment I freedom of belief, expression, and association; Amendment IV right to security in your person, home, and property; Amendment V freedom from deprivation of life, liberty, or property without due process; and Amendment IX, which says only that such a right can exist because the Constitution doesn't say it can't. The first ten amendments outline the various ways that people have control over their own lives. The "right to privacy" doesn't need to be expressed in so many words because it's implied in everything the Bill of Rights stands for.
Griswold isn't the only case where privacy becomes an issue. Later, in the 1967 case Katz v. United States, the Supreme Court further upheld a right to privacy by saying that the Fourth Amendment protection from unreasonable search and seizure applies to the person, not the personal property, and that what a person "seeks to preserve as private, even in an area accessible to the public may be Constitutionally protected."
But hey, don't take my word for it; ask Justice Louis Brandeis. In his Harvard Law Review article, The Right to Privacy," published in 1890 - 75 years prior to Griswold, Brandeis says that basic human rights naturally extend beyond life, property, and person safety to issues of human emotions and relationships and even intellectual property. Said Brandeis, "Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature." While his article starts by looking at the effect of unwanted media attention on privacy, it extends that right to all areas of private life, saying that
the protection of society must come mainly through a recognition of the rights of the individual. Each man is responsible for his own acts and omissions only. If he condones what he reprobates, with a weapon at hand equal to his defence, he is responsible for the results. If he resists, public opinion will rally to his support. Has he then such a weapon? It is believed that the common law provides him with one, forged in the slow fire of the centuries, and to-day fitly tempered to his hand.
In my eyes, though, the biggest defense of the right to privacy is the entire damn Constitution. In case you're unfamiliar with it, it's the document in which the people of America outline the rights that they'll allow the government to have. I'll repeat: it's where the people tell the government how far it can go and how much authority it has over our lives. Somehow, we've started to move away from the real original intent of the framers of the Constitution, that the government should serve at the will of the people, that the government's rights arise from the willingness of the people to give them authority. In cases like this, cases where our personal and private activities and decisions become fodder for a controlling legislature, we have a responsibility to tell the government so far, but no further.