Skip to comments.Constitutional right to privacy a figment of imagination
Posted on 01/15/2006 8:59:46 AM PST by Dog Gone
In this season of politicized and contentious confirmation hearings to fill vacancies on the U.S. Supreme Court, some of the sharpest debate and disagreement concerns a so-called "right of privacy" in the U.S. Constitution.
The advocates of a constitutional right of privacy speak as though that right were expressly stated and enumerated in the Constitution. But the text of the Constitution does not contain the word "privacy" or the phrase "right of privacy."
Consequently, in my view, a constitutional "right of privacy" could only be unenumerated and is therefore a figment of the imagination of a majority of the justices on the modern Supreme Court. Let me explain why.
Webster's Dictionary defines "enumerate" as "to name or count or specify one by one." Roget's Thesaurus states that the synonyms for "enumerate" are "to itemize, list, or tick off." Adding the negative prefix "un" reverses the definitions or synonyms so that "unenumerated" means not named, not counted, not specified, not itemized, or not listed.
The right of privacy is unenumerated because neither the word privacy nor the phrase right of privacy appears anywhere in the Constitution or its amendments. Nor does the text contain any words related to other rights the Supreme Court has found to derive from that right, including the right to an abortion and rights related to sexual preference. Neither "abortion" nor "sexual preference" appear anywhere in the text of the Constitution.
The idea of a constitutional "right of privacy" was not even recognized by the Supreme Court until 1965, when Justice William O. Douglas used the idea in writing for the majority in Griswold v. Connecticut, where the court concluded that a state law criminalizing the use of contraception was unconstitutional when applied to married couples because it violated a constitutional right of privacy. That was 176 years after ratification of the Constitution, 174 years after ratification of the Bill of Rights and 97 years after the ratification of the Fourteenth Amendment.
In his opinion, Justice Douglas cited cases that he maintained, "bear witness that the right of privacy which presses for recognition [in Griswold] is a legitimate one."
Note the phrase "which presses for recognition." That phrase reveals that the right of privacy, that is still hotly debated by the American people today, was first recognized by the Supreme Court in this opinion. Note, also, that if the right of privacy had been "named" or "listed" or "specified" or "itemized" in the Constitution, there would have been no need for it to "press for recognition" in this opinion.
What the Supreme Court was really doing with such language was interpreting some of the specific prohibitions enumerated in the Bill of Rights as indicating the existence of a general right of privacy that is not expressly written, and then finding a new specific right, i.e., the right to use contraceptives, as an unstated part of the unstated general right of privacy.
This same technique was used by the Supreme Court in 1973 in Roe v. Wade, in which the majority stated:
"The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as , the court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the court or individual justices have, indeed, found at least the roots of that right in the First Amendment, in the Fourth and Fifth Amendments, [and] in the penumbras of the Bill of Rights.
"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or as the district court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
Just substitute "a woman's right to terminate her pregnancy" (Roe) for "a married couple's right to use contraceptives" (Griswold) and the Supreme Court again found an unstated specific right within the unstated general right of privacy. Note also that the Supreme Court admitted in the first sentence of the above quotation that "the Constitution does not explicitly mention any right of privacy." I think my use of the adjective "unenumerated" in this context is both accurate and appropriate.
The court's choice of the word "penumbra" and the phrase "penumbras of the
Bill of Rights" in these opinions is revealing.
According to Webster's, penumbra comes from two Latin roots: paene, meaning almost, and umbra, meaning shadow. The meaning of penumbra, as stated in the dictionary, that is relevant to our understanding of the Supreme Court's opinions regarding the Bill of Rights is "an outlying, surrounding region."
So the use of the word penumbra by the Supreme Court should be understood to mean that in the court's view the right of privacy exists somewhere in the region that surrounds and lies outside of the Bill of Rights.
But there is absolutely nothing in the text of the Bill of Rights about any such surrounding or outlying area, nor is there any catch-all phrase (like "other similar rights") indicating that the rights specifically enumerated exemplify a larger class of rights that were not enumerated. Consequently, whatever rights might be found in the phrase exist only in the mind, contemplation and imagination of each individual reader and are not part of the constitutional text.
Some proponents of a constitutional right of privacy insist that it can be found in the liberty clause of the Fourteenth Amendment. But the liberty clause of the Fourteenth Amendment is identical to the liberty clause in the Fifth Amendment; and just as in the case of the Bill of Rights, neither the word "privacy" nor the phrase "right of privacy" appear anywhere in the Fourteenth Amendment, much less in the liberty clause.
The fact that the Supreme Court has said that the right of privacy could come from the First, Fourth, Fifth or Fourteenth amendments is solid evidence that the court is just guessing about where it does come from.
The Supreme Court's actions I have just described amount to an attempt to amend the Constitution rather than an interpretation of its text. Let me explain why.
There are two ways to amend a document like the Constitution:
(1) you can delete words that already exist therein; or (2) you can add new words not previously included.
The latter is what the Supreme Court has done, and this action differs fundamentally from the court's legitimate task of interpreting and applying existing words and phrases like "cruel and unusual punishment," "due process," "public use" and "establishment of religion" that appear verbatim either in the text of the Constitution or its amendments.
But the Constitution does not give the Supreme Court the power to amend the Constitution. Neither the Supreme Court (the judicial branch) nor the president (the executive branch) is mentioned in Article V of the Constitution, which defines the process for amending the Constitution.
As defined in Article V, the power to amend lies with the American people, acting through the Congress and the state legislatures. It is "We, the people, of the United States" who are expressly denominated as the acting parties in our original Constitution who "do ordain and establish this Constitution for the United States of America."
Likewise, in our Declaration of Independence, one of the truths we declared to be self-evident is that "Governments are instituted among men, deriving their just powers from the consent of the governed."
Our first president, George Washington, put it this way in his farewell address to the nation in 1796:
"The basis of our political system is the right of the people to make and to alter their constitutions of government.
"If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by amendment in the way which the Constitution designates but let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed."
Similarly Chief Justice John Marshall wrote as follows in his historic opinion in Marbury v. Madison:
"That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.
"From these, and many other selections which might be made, it is apparent, that the framers of the Constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature."
The Constitution does speak to the circumstance of unenumerated rights in the Ninth and Tenth amendments. The Ninth Amendment in simple plain English says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The right of privacy is not one of the rights enumerated in the Constitution, and consequently, the Ninth Amendment gives us two instructions: first, we are not "to deny or disparage" the existence of a right of privacy simply because it is not enumerated in the Constitution; and second, we are required to recognize that any such right of privacy is "retained by the people."
Clearly, a right of privacy exists at some level, but it has not been made subject to the Constitution unless and until the people act to make it so.
Likewise, the Tenth Amendment simply states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
The Constitution does not delegate to the Supreme Court (or any other branch of the U.S. government) any power to define, apply, or enforce whatever may be the right of privacy retained by the people. Similarly, the U.S. Constitution does not prohibit any state in particular, nor all states in general, from defining, applying or enforcing whatever the people of that state may choose as the right of privacy. Therefore, as the Tenth Amendment clearly provides, the power to define, apply or enforce a right of privacy is "reserved to the states respectively, or to the people."
By finding a constitutional right of privacy that is not expressly enumerated in the Constitution, the Supreme Court has "usurped" the roles and powers of the people, the Congress, and the state legislatures.
Shed of all semantical posturing, the critical issue becomes: Does the U.S. Constitution permit amendments by judicial fiat?
Some argue that the Constitution must be a "living, breathing instrument" and that it is right and proper for a majority of the Supreme Court to decide when, where and how the Constitution needs to be changed so as to be "relevant to modern times."
These folks operate on the premise that the Supreme Court is infallible and omnipotent, and that once the Supreme Court has spoken, there is no way to change its ruling.
I disagree with that view. But we as a society must decide which view should prevail.
On several occasions the Supreme Court has held that Congress does not have the power to change by legislation a prior Supreme Court decision. Similarly, nothing in the Constitution instills the president with the power to do so. Therefore, to remedy the "usurpation" by the Supreme Court as to a "right of privacy," we must go to the highest authority the people.
Thus, the ultimate remedy to this controversy lies not with the individual members of the Supreme Court, but with the people whose will could be expressed in the form of a national referendum either affirming or rejecting the Supreme Court's actions.
Such a national referendum would be a win-win situation. For those who support the power of five justices to amend the Constitution as they see fit, it would afford the opportunity to demonstrate that a majority of the people in each of a majority of the states agree with the Supreme Court and that therefore, the right of privacy should be treated as a part of the Constitution, just as if it had been adopted by the amendment process in Article V.
On the other hand, for those of us who believe the Supreme Court has usurped the power of the people to consent or not to consent to a constitutional change, a national referendum would afford the opportunity to demonstrate that a majority of the people in each of a majority of the states reject the power of the Supreme Court to make constitutional changes.
The will of the people would then override any judicially fabricated constitutional amendment, and the right of privacy would not be treated as part of the Constitution.
This referendum could be called by Congress and placed on the November 2006 ballot for Congressional elections.
This controversy has been brewing for more than 30 years with little sign of resolution. The best thing would be to settle this controversy one way or another as quickly as possible by a vote of all of the people.
As a U.S. citizen, I respectfully petition the Congress to call a national referendum to permit the people to just say no or yes to the Supreme Court's usurpation of the power to amend the Constitution. I invite others who share my views to do likewise.
DeMoss practiced law in Houston for 34 years before being appointed in 1991 by former President George H.W. Bush to the 5th U.S. Circuit Court of Appeals, where he now serves.
I don't think it can get much traction though, because the counter is that the appellants in Griswold were in fact demanding that just that right, i.e., the unenumerated right to privacy, be placed in THEIR hands, not the hands of the Court, the Congress, or any state legislature. In effect, this argument defeats itself.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The author of this piece is an idiot.
Long, but well worth a read
So do I have a privacy right that makes it OK to use cocaine?
A federal anti-abortion law would run afoul of the Ninth.
However when the people of a state pass a law they are defining their unenumerated rights. The Ninth expresses that it is in their power, and theirs alone, to do so.
Reading the Ninth to put our uneneumerated rights into the hands of a branch of the federal government is backward.
The advancement of a referendum, after a whole article criticizing acts that aren't supported by the constitution, is pretty stupid of the author.
You try that, and they'll invoke a commerce clause...:)
I agree. The IX ammendment clearly states that there are other rights, not listed in the Constitution, that the people retain. I wonder, if I do not have a right to privacy, then what other rights do I retain under the IX ammendment?
I don't know about you but it seems to me that people have a lot less privacy nowadays than they did before the Supreme Court said they had a right to it.
After having practiced law in Houston for 34 years before being appointed in 1991 by George H.W. Bush to the 5th U.S. Circuit Court of Appeals, where he now serves, this twit seems to have never stumbled across any mention of the 4th Amendment?
Yes. What you say makes absolute sense. Roe v Wade is the greatest self-inflicted wound the Court has made since Plessy v. Ferguson and Dred Scott v. Sanford.
There are always limits to rights. The famous "fire in a theater" limit to free speech, for example.
As to privacy, I don't have a right of privacy to kill you, if I do it in my home. And as I posted above, I don't have a right of privacy to put substances such as cocaine in my body (although, I think I should have that right, it hasn't been recognized by the courts).
So what are the limits of privacy? In my opinion, I should have the right of privacy to put drugs in my body, well before someone has the right of privacy to terminate a late term baby, because in the drug case there is no question of another human beings rights (the childs rights) on the table. So I think the courts have things a bit backward.
Before the 14th Amendment the case law supports your argument that the 9th doesn't apply to the states. If you read the Senate debate on the 14th, then it is pretty clear that is what was intended - application of the BOR to the states, that is. What judges have made of that since then has been a hash - some rights incorporated, some not.
That is absolutely true. The right to privacy is always being reduced by those who defend it to the death when it comes to abortion. They don't give a damn about privacy. They only care about abortion.
The income tax is the root of all evil when it comes to the envasion of privacy.
"So do I have a privacy right that makes it OK to use cocaine?"
Actually, you probably do. Trouble is that you have no cocaine, naturally. To obtain some, you must get it from a third party. That's where your privacy ends, you see.
However, if you can create cocaine in your home, with no outside sources, you could probably win your case. Since you cannot, you cannot.
Due cause and the commission of a felony are justifiable reasons. IMO you are correct in your take that there are limits. The courts seem to agree.
I do believe we do have a justifiable right to privacy as a rule.
So if the BOR didn't apply in the states until the 14th, then were did it apply until that time? Washington DC?
My understanding is that some southern states were arguing that the BOR didn't apply to them, because they wanted to retain slavery (this was immediately after the civil war). It was clearly a bogus claim in the first place, and the 14th is basically saying "the BOR applies within the United States", Duh.
This language from the Bill of Rights would be the very language I would cite to show that our "right of privacy" is in fact quite limited both in its breadth (i.e., it is limited to our "persons", papers, etc." and evidently doesn't include such things as private, sexual acts) and in the ease with which it may be broached (i.e., any "reasonable" search and seizure is permissable). It is very different from, say, the second amendment which appears to protect an absolute personal right (i.e., "shall not be infringed").
It is time to amend the constitution to provide for privacy as a specific right before this stuff gets any more out of hand.
Thank you for agreeing with my assertion.
"Penundra" is the world that defines the supposed rights found in the Constitution by Socialist jusges on the Supreme Court.
One more reason why the far-left should not be permitted to name sitting federal judges.
BTW why don't we stop calling them "liberals," "socialists," "progressives," and "collectivists" and start calling them what they really are, communists?
The only prohibition that should be possible with federal law on acquiring substances should be interstate commerce. If I acquired it locally, then only state laws should apply. This flies in the face of the problems California residents have been getting from the feds in their medical marijuana issue.
I should have made my example marijuana, because it is easily kept entirely private. People grow it right in their homes, so not even state commerce laws should apply.
I'm just amazed that there haven't been legal cases attempting to use privacy as a defense. I'm also amazed that the anti-abortion crowd doesn't point this contradiction out in order to attack Roe. That's the reason I brought this subject up.
I'm not a druggie, although I resent the government telling me what I can do with my body. It's mine, dammit. I should be able abuse it if I want, whether it's eating too much chicken fried steak or smoking dope.
This guy's a judge?
He is hardly an idiot. The question is whether there is a constitutional right to privacy. Not whether States or other bodies of government could legitimally grant such a right on their own. In Roe vs. Wade and in Griswold vs. Connecticut the SCOTUS managed to find a constitutional right that had remained hidden for centuries.
The proper course was and is to allow the States and the people of the states to decide through the proper legislative actions what the laws should be regarding rights not enumerated in the constitution. That is how a Republic works. Not by Supreme Court Fiat.
I believe so. You also have a right to use cocaine or bear arms or advocate home schooling or do anything which hysterical control freaks say poses a "potential" or "theoretical" danger to others. It is irrelevant whether or NOT it is considered a privacy right or even a right to do as you damn well please out in public, again without REALLY posing a danger to others (while respecting LOCAL laws against public nuisances, using drugs in public, public indecency, inciting to riot, etc., of course).
"A right is a claim to freedom of action (including that of securing privacy) which is the basis for the 'basic golden rule,' which is: 'Do nothing unto others you wouldn't want them to do unto you,' or, as Alfred the Great put it, "What ye will that other men should not do to you, that do ye not to other men." (King Alfred's Book of Laws, circa 878 AD, according to Winston Churchill's History of the English Speaking Peoples)
"As Justice Oliver Wendell Holmes said, 'The right to swing my fist ends where the other man's nose begins.' Rights must apply to everyone in the same sense at the same time. So rights must therefore be limited to claims of freedom to do anything which does not violate the freedoms of others. This requires recognizing, respecting and abiding by anyone else's wishes to be left alone whenever he wants, and his wishes to be free to do anything which doesn't violate others. This is why no one can claim a 'right' to interfere with your life in any way without your explicit, personally-given consent for a specified purpose. There can be no such thing as a 'right' for anyone (or any group) to mess with you whenever he wants (or whenever they want) since it obviously isn't applying to YOU in the same sense at the same time.
-- from this page on rights
That is exactly what the Ninth says: "retained by the people".
When introducing the Ninth Madison said it was to prevent those rights from falling into the hands of the federal government.
Now everyone, but the judge and I apparently, wants to read the Ninth to mean the opposite.
I believe you make an interesting point, one that I cannot entirely refute.
The language does show the intent of the founding fathers IMO. It is clear that they wanted the individual citizen to be free from UNJUST search and seazure. I do not think they wanted the individual citizen's rights to supercede the safety of others, or to give that individual cover for the commission of a crime.
I guess I'd be inclined to read in original intent in this language. What was going on circa the time these rights were enacted. What were they trying to achieve?
It is hard for me to fathom the founding fathers trying to set up a situation where the government could monitor your every move, your private matters and your business dealings unless... unless your actions were deemed to be indicative of a crime.
I doubt you think the founding fathers desired to give the government access to our privacy moment by moment unless there was due cause.
Some of the modern inventions we take for granted today, weren't specificly covered under the Bill of Rights. I'd have to say that by extrapolation, they were. Once again, I look to intent. It would be very hard for me to think the founding fathers wanted our government to be able to mine our emails or capture our voice communications, without due justifiable cause.
Perhaps you see our founding fathers in a different light. I see the provision of the Bill of Rights and or the Amendments to the Constitution as the very proof of what their intent was. And I bleieve we should error on the side of that original intent as much as possible.
Fine, arguably the federal courts were given power to ensure that the enumeration of certain rights in the state constitutions could not be construed to deny or disparage other rights held by the people, but that is not what people are advancing here.
Most stupidly, they are arguing the Ninth gives the federal courts power to construct the enumeration of rights in the 14th Amendment to deny or disparge other unenumerated rights. It's fantastic!
When faced with deciding whether a state law conflicts with the Ninth a federal judge looks for evidence- not theories.
First in consideration is the state constitution, second is state law, third is tradition and practise.
If that evidence does not support the contention that something is a "right", then it isn't.
It is that way because rights don't exist in a vacuum. Most notably they conflict with each other and it is in the power only of the people who retain those rights to decide what those "unenumerated" rights are.
Giving the power to judges to determine what rights we retain is tyranny as sure as giving them the right to decide what property we retain- without following rules of construction and evidence- would be.
A state law is prima facie evidence of the nature of the rights retained by the people. Elected legislatures aren't perfect, but they're a far sight better than appointed tribunals at reflecting the will of the people.
NO federal judge has ever used the Ninth Amendment to justify overturning a state law. Hopefully none will be convinced to do so while I'm watching the playoffs- or I'll sue!
The ostensible purpose of the Ninth was to place the presumptive burden on the Constitution to prove that it was the repository of rights, rather than on The People to prove that they were.
It was never expected that the Constitution would provide an exhaustive list of the rights of a free people. But the absence of a certain right did not mean that it didn't exist. The PRESENCE of a right (an "enumerated right") put that right under the domain of the Constitution. But rights could still exist whether they were explicitly mentioned in the Bill of Rights. And those rights were reserved to The People.
The right to privacy is not listed in the constitution.
The right to privacy exists nonetheless.
The right to privacy was not hidden for centuries. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated... Indeed the fourth admendment declares your right to privacy as it concerns to your papers, person, effects, and home. Perhaps you are ready to grant unfeathered access to your private papers and home, but I am not quite ready to give up my right to privacy.
Interesting read. But I'm wondering about this "national referendum." Is he calling for a constitutional convention?
The author is discussing the US Constitution and claims the right to privacy does not exist because it is not specifically listed in this document. He is wrong.
And you are wrong if you believe the states can pass laws that contradict the US Constitution.
Our rights exist whether listed in a document or not, regardless of what document you are discussing. States or papers do not grant me rights. Only God (or natural law if you prefer) can grant rights. States on the other hand, infringe on rights. Sometimes justly, sometimes not.
Now with all this said, the right to privacy is not absolute. It does not provide me or anyone else a shield to kill an unborn child or plot terrorist attacks.
I don't know what "reserved to" means but "retained by" means the people have them and can see and say what they have. The people are the ones who say what "unenumerated" rights they have.
Some people think the Ninth is an expansion or the federal powers in the 14th Amendment. Just the opposite of what was intended.
The Ninth says the federal courts must heed the people.
James Madison: ''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [Ninth Amendment].''
No, I don't think so. His analysis of the Constitution was pretty good, but his suggestion of a national referendum is somewhat off the wall.
It would have no legal effect and the only thing it might do is generate some interest in the Constitution and the Court's role in construing it.
But it wouldn't change a thing regardless of the outcome.
You could have all the 'national referendums' in the world and it wouldn't matter a whit, becuase that's not one of the mechanisms for amending the Constitution. (Thank God.)
I don't know about you, but to have a Federal Judge call for a 'national referendum' to change the Founding Document comes pretty close to an impeachable offense to me. It's certainly not 'good behavior' in my book.
Well reasoned, well said.
He clearly does know the process since he mentioned it in the piece.
His complaint is that the Supreme Court has been amending the Constitution, which it is not entitled to do, and he would like the public to remind them of that fact. I don't think it is any deeper than that.
No state law can contradict the Ninth Amendment- they can only contradict the 14th (and some other parts) of the constitution.
What immunities and privileges are in the 14th is not expanded by the Ninth.
Just the opposite is true.
The Ninth actually says that the "immunities and privileges" enumerated in the 14th Amendment "shall not be construed to deny or disparage others retained by the people". It's a restriction on the federal courts- not a license.
"Privacy" is protected by several parts of the federal and state constitutions. How depends on the specifics of a case.
The concept of a general "right to privacy" isn't at all useful IMHO.
I agree. Their malevolent intentions have been lost in those benevolent labels. Many of these labels were self assumed to aid in accomplishing their perfidious agenda.