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Justice Douglas, in Griswold v. Connecticut, 381 U.S. 479 (1965), began firmly framing a constitutional right to privacy where one had previously existed only in shadow. His recipe was a various mix of Amendments within the Bill of Rights although how, exactly, the right to freedom of speech and assembly (First Amendment) interacts with the right to not be forced to quarter soldiers during peacetime (Third Amendment) never really coalesced into a solid doctrine for some. What did make sense, however, was the use of the idea found in the Ninth Amendment that just because a right was enumerated in the Bill of Rights didn’t necessarily mean there weren’t other rights held by the people; stated positively, there may be “constitutional” rights not specifically noted in the constitution itself. Hence, the doctrine of privacy rights was born.
There are two fundamental aspects of Justice Douglas’ statements which should be addressed here. The first is Incrementalism; the idea that privacy is not taken away in a day by one major act, but rather eroded over time. For Justice Douglas, the government may “intrude into the secret regions” of an individual’s life through its actions which, almost imperceptibly, use the massive power of the federal system to weaken the standing of an individual.
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