Constitutional right to privacy a figment of imagination

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 [1891], 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.

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.

(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.

The 2nd Amendment is not incorporated by the courts as we speak. Of course, what is going on here, is that plenty of people are interested in not incorporating the BOR, because it would get in the way of legislation they want passed. That said, it was clear from the Senatorial debates that full incorporation was what was intended. To say the a particular court case did not reflect this approach shortly after the passage of the 14th Amendment, is merely to say that the Supreme Court wanted to limit the BOR's applicability to the states. It did so contrary to the intent of the amemndments authors and the intent of the Congress in authorizing the amendment. It should be no surprise to anyone that the Courts screw things up this way. Separate but equal is another screwy doctrine that was the law of the land until the court reversed itself in Brown (IIRC and IANAL). Reversal of prescedents like in Brown is just another reminder why courts should and indeed must remain subject to the people rather than the other way around. There is a good discussion of the development of the 14th Amendment at http://www.constitution.org/col/intent_14th.htm

Okay, we are DOOMED!

It seems to me that we already lost this battle, states rights and home rule have already been diminished to irrelevance.
This is particularly true in my state of Nevada.
The fed. now dictates virtually every miniscule facet of our lives, unless we ignore their dictates.

Overall, this discussion is a replay of the original argument between the federalist and the the anti-federalist, it will rise and ebb as long as our republic endures.

If I had my way the Fed. Gov. Org. would be reduced to doing only what it is specifically directed to do under our constitution, and I would still have a right to privacy.
To too many that would be anarchy.

In my view individual rights are paramount, with each level of Gov. Org. only reluctantly accepted, and only to the least extent possible.
Call me a "small government" republican.

My privacy is of no legitimate concern to local, state, or Fed. government.

The state government has no more say over my natural rights than the Fed.

If we have no right to something so basic as personal privacy, it would follow that we have NO rights to anything else either.

Weather we ever agree on this issue is largely moot, our out of control big brother, nanny state, totalitarian leaning Gov. Org.'s will do as they please in any case, "For your own good".

I have lost all faith in "our" government, no matter which "party" is in power.

Hard to put too fine a point on it in a single paragraph. The enumerated powers provisions clearly place limitations on the government. The Preamble identifies the people as the power that "ordains" the constitution. The choice of words here is key because it establishes the people as a higher authority and implies a holy or Godly origin to their primacy. Article VI establishes the constitution as the supreme law of the land. The Bill of Rights was added through the amendment process to further place specific limits on the Federal government. Areas into which the government may not intrude are private, hence the use of the phrase "right to privacy".

Amendment IX

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.

Griswold v. Connecticut 381 U.S. 479, 529

(Stewart, J. dissenting)

"The Court also quotes the Ninth Amendment, and my Brother GOLDBERG'S concurring opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered," United States v. Darby, 312 U.S. 100, 124 , was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annual a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder."

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This seems fairly clear to me. If this isn't a guarantee of privacy, what is?

GRISWOLD v. CONNECTICUT, 381 U.S. 479, (1965)

(Black, J. dissenting)

(...)The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth [381 U.S. 479, 509] Amendment's guarantee against "unreasonable searches and seizures." (...)

The due process argument which my Brothers HARLAN and WHITE adopt here is based, as their opinions indicate, on the premise that this Court is vested with power to invalidate all state laws that it considers to be arbitrary, capricious, unreasonable, or oppressive, or on this Court's belief that a particular state law under scrutiny has no "rational or justifying" purpose, or is offensive to a "sense of fairness and justice." If these formulas based on "natural justice," or others which mean the same thing, are to prevail, they require judges to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. The power to make such decisions is of course that of a legislative body. Surely it has to be admitted that no provision of the Constitution specifically gives such blanket power to courts to exercise such a supervisory veto over the wisdom and value of legislative policies and to hold unconstitutional those laws which they believe unwise or dangerous.(...)

My Brother GOLDBERG has adopted the recent discovery that the Ninth Amendment as well as the Due Process Clause can be used by this Court as authority to strike down all state legislation which this Court thinks violates "fundamental principles of liberty and justice," or is contrary to the "traditions and [collective] conscience of our people." He also states, without proof satisfactory to me, that in making decisions on this basis judges will not consider "their personal and private notions." One may ask how they can avoid considering them. Our Court certainly has no machinery with which to take a Gallup Poll. And the scientific miracles of this age have not yet produced a gadget which the Court can use to determine what traditions are rooted in the "[collective] conscience of our people."

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I yet again advise to learn a bit about the history of the IX Amendment and its true meaning, not the one invented by Arthur J. Goldberg.

Griswold v. Connecticut 381 U.S. 479, 529

(Stewart, J. dissenting)

"The Ninth Amendment, like its companion the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered," United States v. Darby, 312 U.S. 100, 124 , was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annual a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder."

"So when the Second gives the citizens the right to keep and bear arms, it is an absolute right of all citizens of the various states, and has been since it was ratified."

Oh really?

Then how is it possible that some states allow concealed carry and some don't? How is it possible that some cities actually ban the ownership of handguns?

What happened to Equal Protection and Due Process?

(Answer: The second amendment doesn't apply to the states, only the federal government. Gasp!)

"Perhaps you can quote something from the Federalist Papers, or the debate in Congress offering the BOR for ratification."

"This point is best illustrated by one of the amendments that Madison proposed in his initial speech:"

Fifthly, That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:

No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases."

This clause, seemingly innocuous to us today, was rejected by the Senate in its final draft of the Bill, and the concept that any part of the Bill of Rights would apply to the states was still 100 years away."

All that's provided are a few views from some Senators. Consider as well that Rhode Island (and Oregon IIRC) rescinded their yes vote on the 14th for obvious reasons. I would suggest you read Fairman's view on the concern, one person who influenced Chief Justice Rehnquist apparently

In the fall of 1946, Fairman was developing views on the 14th Amendment that would prove influential among conservatives of the day, though Fairman himself did not identify with the political right. The amendment, adopted in 1868, provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Fairman argued that the framers of the amendment had not intended to apply the Bill of Rights to the states. The “privileges and immunities” of citizens the amendment protected were limited to such matters as the making of contracts and service on juries, he said. The federal government’s powers to fight discrimination or other abuses by the states would, accordingly, be limited. “This is not merely an academic question,” Fairman wrote in a seminal 1949 Stanford Law Review article. “It presents itself insistently today because Justices of the Supreme Court are prepared to make decisions turn upon their reading of the historical record.” Indeed, he wrote in direct rebuttal of Justice Hugo Black, who was taking the opposite view of history in his opinions at the court.
Fairman’s narrow interpretation of the 14th Amendment likely came through in lectures to undergraduates such as Rehnquist. “He clearly taught that the 14th Amendment did not apply the Bill of Rights to the states,” Davies recalls.

Stanfordalumni.org

And personally I wouldn't give a spit for the Radical Republicans of 1866. However the 14th Amendment's intent as well as a discussion of some of the cases it has affected are found more in depth here.

Constitutional Freedom Foundation

Then how is it possible that some states allow concealed carry and some don't? How is it possible that some cities actually ban the ownership of handguns?

Because the SC has ignored the obvious interpretation of the constitution for several decades now. Many government entities have passed obviously unconstitutional law and gotten away with it.

As my example of Griswold and Roe discovering extensive privacy rights, while the "right of privacy" to use drugs doesn't exist, we are living in a time when the constitution means whatever the SC rules at the moment.

(Answer: The second amendment doesn't apply to the states, only the federal government. Gasp!)

The second was not limited in scope as the first was to laws that Congress passes. The second was a right given to the people, and the 14th explicity extended all rights given by the BOR to the citizens of states.

"Flying an airplane locally around the pattern does affect interstate commerce."

So you have no problem with the concept that Congress may prohibit some purely intrastate activity if that activity has a substantial effect on their interstate commerce regulatory efforts -- you just disagree that pot possession has a substantial effect.

Well, until Congress can be proven otherwise, the law stands. But I think they make a pretty good case that it does affect their interstate efforts if everyone is allowed to grow pot and distribute it locally.

I do not argue that the right to privacy grants you a right to kill someone just because it is done in private. You have no right to infringe on another’s rights regardless of what right you claim to be exercising.

I do not have the right to carry a weapon into your home even if I claim I am just exercising my right to keep and bear arms.

But this is moot. The argument is whether a right must be listed on some document in order to exist. It need not be listed anywhere.

The state can restrict your right to keep and bear arms, speech, assembly, privacy, and a host of others. Get arrested sometime and see which rights are infringed upon. True the state must act in accordance with due process, but because a right can be infringed does not mean the rights doesn't exist.

Uh, no. The 14th Amendment has been used to selectively incorporate the BOR during the 20th century, and the 20th century only

Concerning a dissenting opinion in the 1892 case of O’Neil v. Vermont[15], Morrison observed:
“Here then, in 1892, we get the first intimation from any Justice of the Supreme Court that the Fourteenth Amendment might be considered to incorporate the Bill of Rights. In view of the long line of cases beginning in 1875 in which the question [of incorporation] could have been raised, and in view of the fact that the judges who were sitting on the Court during this seventeen-year period were all mature men when the Fourteenth Amendment was adopted, the conclusion is irresistible that it was not generally supposed that the Amendment incorporated the Bill of Rights.”

The 2nd Amendment, and the original intent of the rest of the Bill of Rights, was the relation of the citizens of the respective states to the federal government alone. And until the 20th century, it was understood this relation did not change after the passage of the 14th Amendment

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