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 [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.
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.
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.
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.)
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.
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.
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.
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?
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
he not only gives libertarians a bad name, I'd question anything he says
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?
I think the old dead white guys who wrote the Constitution had no concept of the government spying on its citizens electronically ....
Here's one example: "No State shall ... make any Thing but gold and silver Coin a Tender in Payment of Debts."
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.
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.
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.
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.
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
Not true. There was quite a bit of opposition to Barron & the 'states rights' position..
-PJ
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."
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U.S. v. Rhodes, 27 Federal Cases 785, 794:
"The amendment [fourteenth] reversed and annulled the original policy of the constitution"
"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.
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."
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