Constitutional right to privacy a figment of imagination

Houston Chronicle ^ | January 15, 2005 | JUDGE HAROLD R. DEMOSS JR.

[dirtboy]

Griswold did nothing to create any additional federal powers.

Yes, it did. It empowered the federal government to overturn a state law.

It ruled that since the right to privacy was not an enumerated right under the Constitution, it was reserved to The People,

With all due respect, the 10th reserves non-federal powers to either the states or the people. It is up to the respective states to decide how those remaining powers are divvied up. With Griswold, the Feds decided that they would make that decision. And IMO, under the 10th, they had no such authority.

[Tarkin]

Yes robby [gasp], we here at FR are no longer shocked at your refusal to support the Constitutions 2nd Amendment as the Law of the Land.

But that's unfortunately true. Some provisions of the BoR were not made applicable against the states. Among them, the Second Amendment and the right to unanimous 12-member jury verdicts. AFAIK the complete incorportation doctrine was never accepted by the SCOTUS, only by some of its members (like William O. Douglas, Frank Murphy, Hugo Black etc.)

[FreedomCalls]

I wonder, if I do not have a right to privacy, then what other rights do I retain under the IX ammendment?

The Right to Travel is one. In feudal societies, serfs were "bound to the land" and could only move around on the land to which they were bound and which was owned by their landlord. They were not free to go anywhere they pleased.

The Right to Own Title to Property is another. In some societies land is not owned by anyone and is all in common to everyone. Your right to live in one area goes only so far as your ability to physically defend yourself from someone wishing to take it from you. Same for personal possessions.

There are others.

[dirtboy]

However, manufacturing it, importing it, possessing it, appearing in public while under its influence, or engaging in commerce in it remain constitutionally prohibited.

I would agree that the feds have the authority to prohibit the importation of cocaine, as that is an issue regarding our borders.

Now, here is a thornier issue - where does the federal government get the Constitutional authority to prohibit someone from growing a pot plant in their home for their own consuption. Hint: No commerce is involved and the pot does not cross state borders. And if you resort to Wickard to justify the feds prohibiting such, may you be sewn into a sack with Helen Thomas and thrown on a waterbed.

[FreedomCalls]

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.

As long as you are not able to sue the government to provide you with healthcare subsequently for whatever damage you do to yourself, I tend to agree with you.

[IronJack]

It empowered the federal government to overturn a state law.

Actually, Marbury vs. Madison established that in 1803.

With all due respect, the 10th reserves non-federal powers to either the states or the people. It is up to the respective states to decide how those remaining powers are divvied up. With Griswold, the Feds decided that they would make that decision. And IMO, under the 10th, they had no such authority.

That may be your opinion, and certainly you're free to argue it. But nothing of the sort was raised in the Griswold case. The Tenth Amendment isn't even mentioned.

Considering the numerous well-reasoned (and moderate) responses to this thread, it occurs to me that a separate thread could be opened that would dissect Roe and its antecedents. I know there are some keen legal and pseudo-legal minds here, and it might be a good starting point for building a case to overturn.

What do people think?

[billbears]

I prefer to follow an interpretation which is consistent with orignial intent - namely that the BOR applies to the states. Whatever interpretation Fairman came up with, it doesn't square with the what the authors and approvers of the 14th Amendment said in the course of their debates. The article I referenced is only summary of the comments and the issues raised.

Ah, original intent. However no judge on SCOTUS was able to determine this 'original intent' for over 30 years. Even to the point of ruling the exact opposite of what you say was the original intent. I see views from only a few Senators listed, so you can't very well say it was the original intent.

As for not taking Fairman's interpretation, I'm going to tend to side with a man that taught and influenced a future Chief Justice, not to mention a good portion of the then conservative movement. And considering the bio of that author

Found here

he not only gives libertarians a bad name, I'd question anything he says

[don asmussen]

paulsen misinforms:

States (actually the citizens of the states) decide which of these natural rights they will protect and to what extent.

Simply not true. Both Article VI & the 14th specifically address this issue, making clear that States are bound to support the US Constitution and the individuals rights protected therein.

In Chicago, you have a right to defend yourself, but not with a gun.
-- 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?

By ignoring the clear words of the Constitution, combined with the failure of our President, Congress, and Courts to insist that they cease such prohibitions. --- The 'majority will' is operating to infringe on our RKBA's, urged on by 'democratic' folks like you.

What happened to Equal Protection and Due Process?
(Answer: The second amendment doesn't apply to the states, only the federal government. Gasp!)

Yes robby [gasp], we here at FR are no longer shocked at your refusal to support the Constitutions 2nd Amendment as the Law of the Land.

Make you proud?

What does the second amendment to the U.S. Constitution have to do with the City of Chicago's gun laws? Tell me specifically how it applies.

All the officials in Chicago are sworn to support the US Constitution [as amended]; "notwithstanding" any State [or local] laws "to the Contrary'.

Then tell me why Chicago's gun laws, and New York's, and LA's have NEVER even been challenged as a violation of the second amendment. NEVER.

Because the USSC, and the Fed Circuit Courts, refuse to hear cases that are challenged on 2nd Amendment grounds.
You've been told this before, and NEVER manage to refute that clear fact.

It puzzles me why all you fellas think that this Republic can long endure if we allow States to ignore & prohibit our RKBA's.. Can you explain?

[NotJustAnotherPrettyFace]

I think the old dead white guys who wrote the Constitution had no concept of the government spying on its citizens electronically ....

[FreedomCalls]

States still do ignore the Constitution, as you well know.

Here's one example: "No State shall ... make any Thing but gold and silver Coin a Tender in Payment of Debts."

[billbears]

I would bother but I've already gone through this. See the links I have provided. It is very clear the intent of the 14th Amendment was not meant to incorporate the Bill of Rights. As late as 1925 the Supreme Court ruled exactly that on the First Amendment. The Fifth was not incorporated until 1897. Do a quick search on 14th and incorporation theory.

[Tarkin]

Griswold did nothing to create any additional federal powers.

Actually it's the reason why we have Roe v. Wade, Lawrence v. Texas and other great decisions. The Griswold decision meant that the SCOTUS decided that it had the power to nullify state laws, which are shocking to the consience, against "the concept of liberty" or simply invading "privacy", as understood by the members of the court.

Compare:

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

(Black, J. dissenting)

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."

with

ROE v. WADE, 410 U.S. 113, 153 (1973)

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation

ROE v. WADE, 410 U.S. 113, 167 (1973)

(Stewart, J., concurring)

In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726 , purported to sound the death knell for the doctrine of substantive due process, a doctrine under which many state laws had in the past been held to violate the Fourteenth Amendment. As Mr. Justice Black's opinion for the Court in Skrupa put it: "We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws." Id., at 730.

Barely two years later, in Griswold v. Connecticut, 381 U.S. 479 , the Court held a Connecticut birth control law unconstitutional. In view of what had been so recently said in Skrupa, the Court's opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet, the Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution. 2 So it was clear to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment. As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.

[RKV]

If you want to ignore the multiple direct quotes of the men who wrote and voted on the 14th Amendment to the effect that the BOR applies to the states then you are going to so.

[dirtboy]

But nothing of the sort was raised in the Griswold case. The Tenth Amendment isn't even mentioned.

And that is EXACTLY my point. Let's revist the text of the 10th again:

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 primary way that the federal government has grown to its current size is to disregard the 10th. And Griswold is a prime example of such. Like you said, SCOTUS did not mention the 10th. However, the 10th should have been the primary consideration as to whether SCOTUS could even hear the case.

If a power is not enumerated to the feds, the 9th says that the feds cannot disparage other rights not enumerated. However, the 10th in turn takes those powers and rights and tosses them to the respective states - for the citizens of the respective states and their governments to decide which powers and rights reside with state governments, and which ones are retained by the citizens of the respective states. The 9th was never meant as a constraint on the states - only the fedgove.

It should be that simple. But SCOTUS decided to disregard the 10th back during FDR's reign, and it has been seldom-invoked since. But the 10th, IMO, is the ONLY way to get the fedgov back into a corral - and that starts with the realization that we must eschew federal intervention in what are properly state matters, even if we disagree how a given state has used the powers reserved to it by the 10th.

[Political Junkie Too]

Roe v Wade is the greatest self-inflicted wound the Court has made since Plessy v. Ferguson and Dred Scott v. Sanford.

Kelo can't be far behind.

In Kelo, they argued that Fifth Amendment "public use" also applies to public "good" that increased taxes brings. I don't recall, but did the Supreme Court discuss the Fourth Amendment protection to be secure in one's home as a counter to governemnt takings?

-PJ

[don asmussen]

--- it was universally understood prior in the early days of the Republic that the BoR applied only to the fedgov.

Not true. There was quite a bit of opposition to Barron & the 'states rights' position..

[Political Junkie Too]

In Kelo, they argued that Fifth Amendment "public use" takings also applies to public "good" that increased taxes brings. I don't recall, but did the Supreme Court discuss the Fourth Amendment protection to be secure in one's home as a counter to governemnt takings?

-PJ

[MamaTexan]

So if the BOR didn't apply in the states until the 14th, then were did it apply until that time? Washington DC?

Yes. As well as forts, ports and any land given to the federal government by a State.

and the 14th is basically saying "the BOR applies within the United States

No, the 14th is saying you are a FEDERAL citizen, or artificial 'person', instead of a NATIONAL citizen, or human being.

------------

"A citizen of the United States is a citizen of the federal government ..."
(Kitchens v. Steele 112 F.Supp 383).

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"... a construction is to be avoided, if possible, that would render the law unconstitutional, or raise grave doubts thereabout. In view of these rules it is held that `citizen' means `citizen of the United States,' and not a person generally, nor citizen of a State ..."
U.S. Supreme Court in US v. Cruikshank, 92 US 542:

______________________________________________________________________

State v. Manuel 20 NC 122:
"... the term `citizen' in the United States, is analogous to the term `subject' in the common law; the change of phrase has resulted from the change in government."

______________________________________________________________________

U.S. v. Anthony 24 Fed. 829 (1873) "The term resident and citizen of the United States is distinguished from a Citizen of one of the several states, in that the former is a special class of citizen created by Congress."

______________________________________________________________________

U.S. v. Rhodes, 27 Federal Cases 785, 794:
"The amendment [fourteenth] reversed and annulled the original policy of the constitution"

[KamperKen]

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

There's an inexorable shift to the left, simply faster under Democrats than Republicans. The ultimate destination is Stalinism. The impulse of the state is to reduce everyone to a state of serfdom whom the state can murder on a whim. Of course, the advocates of this system always assume that they're smarter than the ruthless topdog that always emerges on top. They also assume that they will end up as members of the nomenklatura, rather than in prison awaiting their show trials and executions.

[IronJack]

Your citation from Griswold is a DISSENTING opinion. The majority decision said nothing about "substantive due process." That doctrine existed long before the Griswold case, and, as you've pointed out, became the basis for at least one dissenting opinion.

The power to nullify state laws arose from Marbury.

Justice Stewart's dissent in Griswold virtually scoffs at the notion of substantive due process:

"... we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do."