The Right to Privacy (Litigator Series)

This casebook contains a selection of historic Supreme Court decisions that interpret the constitutional right to privacy. This second edition includes concurring and dissenting opinions. A copy of the U.S. Constitution with the Bill of Rights and all amendments is also included.

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. Lawrence v. Texas 539 U.S. 558 (2003)

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. Ibid.

At the very core" of the Fourth Amendment "stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U. S. 505, 511 (1961). With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no. [Citations omitted.] Kyllo v. United States 533 U.S. 27 (2001)

The use of thermovision imaging by law enforcement without a warrant is an unlawful search. Where, [ ] the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant. Ibid.