Constitutional right to privacy a figment of imagination

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

[Tarkin]

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 that it SHOULD be applicable against the states but it's a simple fact that it's (at least yet) not. The entire history of the BoR and the entire case law (starting in 1830) shows that the BoR originally limited only the federal government. Now after the adoption of the XIV Amendment the SCOTUS chose the "selective incorporation" doctrine rather than the "complete incorporation" and gradually extended most of the BoR provisions to the states. As I already said many times it did not extend some provisions of the BoR, like f.ex. the RKBA, but it also did not extend the right to unanimous jury verdicts. I believe that in order to avoid the whole XIV Amendment chutzpah (especially post-WW II when the SCOTUS changed its mind many times on what should extend to the states and what not, again compare f.ex. Bute v. Illinois - there is no right to counsel, and Gideon v. Wainwright - there is a right to counsel, or Wolf v. Colorado - no exclusionary rule, with Mapp v. Ohio) the Congress should simply pass a new Constitutional Amendment which would declare that the entire Bill of Rights is now extended to the states (OTOH some states may not want to ratify it...).

[don asmussen]

robertpaulsen; -- You're of course right. Most people here do not realise that the 2nd Amendment only applies to the federal government. Unless of course the SCOTUS does something about it.

How amusing. You're admitting that a SCOTUS opinion can change the meaning of the 2nd, "incorporating it" to apply to the States.

Where is the 'incorporation power' delegated to SCOTUS?

[FreedomCalls]

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.

They don't. Only the states have that authority. That's why the 18th Amendment was needed to permit the feds to prohibit personal consumption of alcohol. Now getting the courts to agree with that interpretation is a different story.

[lastchance]

Thanks for posting those dissents. They state exactly what I was trying to say.

[jwalsh07]

"The said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms." --Samuel Adams, Massachusetts' U.S. Constitution ratification convention, 1788

The 2A is a right of the people period as the plain language of the BOR's attests. Who do you suppose "the People" are?

[Dog Gone]

I don't recall, but I doubt it. Fairly construed, the Fourth has nothing to do with takings or due process.

But not much is really evaluated fairly in the Constitution. It's quite common for a clause, or even a few words within a sentence, to be grabbed as a justification for a particular court outcome.

That's still preferable, though, to making up imaginary words and rights.

[Tarkin]

Of course. But Justice Black's dissent shows the reasoning of the Court and indicates that (although the majority did not admit it) it abandoned Ferguson v. Skurpa. Griswold meant that the SCOTUS gave itself the power to nullify state laws solely because they were "contrary to the evolving standards of decency" or "shocking to conscience". Exactly the same reasoning was used in Roe. The fact that the majority did not mention "substantive due process" in Griswold simply means that they did not want to explicitly overrule their own opinion from two years before. As Justice Stewart said in Roe:

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.

It is of course a matter of discussion whether we accept the substantive due process standard (many conservatives like Justice Sutherland, Butler or Harlan II accepted it, whereas many liberals like Justice Brandeis or Justice Black rejected it). However if we do accept it we should not criticized Justice Blackmun for Roe. IMHO the courts should only "nullify" (of course technically they don't do thar, but the end is the same) state laws only if they violate some specific provisions of the Constitution and not if they violate the emenations of the penumbras which can only be seen by Justice Douglas and his friends.

[RKV]

"Now getting the courts to agree with that interpretation is a different story." You said a mouthful. What courts rule these days is pretty far off base.

[dirtboy]

The 2A is a right of the people period as the plain language of the BOR's attests. Who do you suppose "the People" are?

It is interesting to compare the First Amendment and the Second. The First starts out with "Congress shall pass no law" - which to simple ol' me, means it was a constraint on Congress, not anyone else.

Whereas the Second ends with "shall not be infringed" and also, as you noted, contains "the right of the people".

Yet the Second hasn't been incorporated by SCOTUS, whereas the First has (but somehow that "Congress shall pass no law" ditty was disregarded when they upheld McCain-Feingold.)

Which means, at the end of the day, that words have no meaning in this day and age.

[Political Junkie Too]

Fairly construed, the Fourth has nothing to do with takings or due process.

Really? You don't think that protections against unreasonable seizures should carry weight against government takings to ensure that the takings are reasonable? Didn't Fifth Amendment takings have to first show that there weren't other reasonable alternatives for roads or building sites before a taking happened? Withouth the Fourth, one could take the first thing they saw, which is pretty much what they're doing now after Kelo.

I could see an argument in the case where there aren't other competing or influencing mentions in the Constitution, but when there are (as I believe there are in this case), then one should be balanced against the other to ensure that the interpretations are fair and consistent.

If Kelo didn't consider Fourth Amendment protections, would that be a possible avenue for a new case to give the Court a chance to reverse their Kelo ruling?

-PJ -PJ

[carenot]

"Penundra" is the world that defines the supposed rights found in the Constitution by Socialist jusges on the Supreme Court.

I thought the Constitution just applied to what the Feds could do to you.

[Tarkin]

No. It says that "the said Constitution shall be never construed to authorize Congress to (...) prevent the people of the United States (...) from keeping their own arms.". The BoR was meant to limit the power of the federal government, period. When in 1824 the SCOTUS was asked whether the Fifth Amendment denied the states the right to take private property for public use without justly compensating the property's owner it unanimously announced without even hearing the arguments of the City of Baltimore that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. As Chief Justice Marshall said:

"The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.(...)

The third clause, for example, declares, that 'no bill of attainder or ex post facto law shall be passed.' No language can be more general; yet the demonstration is complete, that it applies solely to the government of the United States. (...)

Had congress engaged in the extraordinary occupation of improving the constitutions of the several states, by affording the people additional protection from the exercise of power by their own governments, in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language." There is no reason to suspect that the Second Amendment is different.

[Tarkin]

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

Maybe, but nevertheless the Barron decision was unanimous, never overruled and I've never heard of any Supreme Court justice who would oppose it.

[don asmussen]

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 would bother but I've already gone through this.

Not really. What do you gain by allowing a State to infringe on your RKBA's? -- It's a simple question.

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.

I've seen all those links before.
None of them make that point, as the framers of the 14th made their intent clear in the 1868 debates before ratification. They wanted ex-slaves to have the RKBA's.

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.

'Incorporation' is as you said, a theory. Where in our Constitution is the USSC given the power to decide if an Amendment applies to State & local governments?
Clearly, Article VI applies all of the the US Constitution to States, "- any thing in the Constitution or Laws of any State to the Contrary, notwithstanding. --"

[RKV]

Article VI - Yep. It does. "...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby...'

[jwalsh07]

The entire history of the BoR and the entire case law (starting in 1830) shows that the BoR originally limited only the federal government.

Simply not true. Certain of the amendments contained in the BOR's limited the power of Congress, others were simply administrative and yet others acknowledged indivdual rights. According to your interpretation the BOR's should be called the Bill of Limited Federal Government.

While certain of the first 10 amendments certainly did that, some did other things. Please explain how the text of the second amendment is simply a limiting of federal power and not an acknowledgemnt of an individual right.

[Dog Gone]

If Kelo didn't consider Fourth Amendment protections, would that be a possible avenue for a new case to give the Court a chance to reverse their Kelo ruling?

I suppose, but I'd consider it a long shot. The Fourth and Fifth Amendments are talking about entirely separate things and it takes a pretty tortured reading of the Constitution to argue that either impacts the other.

Don't get me wrong, I still can't find the constitutional basis for the Kelo decision. It is just as bad law as Roe or the original commerce clause decisions. All of those cases seem clearly to me to be decisions that were made on the basis of policy with some effort made to cloak them in constitutional reasoning. Horrible law from the purists or strict constructionist reasoning.

[spunkets]

You're right, the judge is wrong. The right to privacy is the implied right that the forth amendment protects. The right to privacy however, does not prevent the passage of any particular law unrelated to the Amendment's prohibiitons. It's really that simple.

" In times of war and the terrorist threat, we do have to be rational. I support the President when it comes to monitering the phone calls to and from potential terrorists."

The Bill of Rights doesn't apply to the enemy. As long as the info gathered is used only to detect and thwart enemy ops, the taps are valid. Again, simple.

[Richard Kimball]

This is a guarantee to privacy, but in the Alice in Wonderland world of the judiciary, privacy doesn't mean what privacy actually means. The privacy addressed in the fourth amendment has specifically to do with what the police must do before searching a person, his or her possessions, or their property. The courts, most egregiously in Roe v. Wade and in the decision on homosexual sodomy, interpreted the fourth amendment to mean because certain acts take place behind closed doors, they are legal. The right to privacy addressed in the Constitution has nothing to do with whether or not specific acts are illegal, but what procedures governmental agencies must use to enter private residences or search individuals.

Ruth Bader Ginsberg is evil, but understands this, and is a very intelligent jurist. She claims the right to abortion is actually contained in the fourteenth amendment, guaranteeing equal protection. Since men cannot have babies, the law only applies to women. This is also faulty reasoning, but is more defensible intellectually than the fourth amendment argument. It's also less likely to open the door to absurdist interpretations. If the reasoning used in Roe v. Wade was applied unilaterally, drug use would be constitutionally protected, as would prostitution, bestiality, all forms of gambling, suicide, dog fighting, games of Russian roulette, and basically any other form of activity, so long as it didn't take place in public view.

[RightWhale]

The question is what is reasonable, rather than whether privacy is a right. The right to own private property is also one of those implied things as is defining a corporation as a person.