Constitutions as a Source of Privacy Law
The U.S. Constitution never uses the word privacy, but the Fourth Amendment limits government searches and the Supreme Court recognized a penumbra of privacy rights. State constitutions can grant stronger rights - 11 expressly recognize privacy.
The supreme law in the United States is the U.S. Constitution, drafted in 1787. It does not contain the word "privacy." Some parts directly affect privacy, such as the Fourth Amendment limits on government searches. The Supreme Court has also recognized a right to privacy over certain personal decisions by discussing a penumbra of unenumerated rights arising from numerous provisions and due process.
In 2022, in Dobbs v. Jackson Women's Health Organization, the Supreme Court overturned Roe v. Wade. The decision stated it was limited to abortion, but scholars worry it could affect other penumbra-based privacy rights (contraception, interracial marriage, same-sex marriage). This is an area for privacy professionals to watch.
State constitutions may create stronger rights than the U.S. Constitution. California's constitution expressly lists privacy among inalienable rights, and 11 state constitutions expressly recognize a right to privacy.