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.
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.
L
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.
Go Bears...
L
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.
I think we're in agreement. Another of our qualified rights has to do with the requirement that we quarter soldiers in our private houses. Anytime a state of war exists we can be required to do so.
As for the "founders' intent", I think it is well to remember that the Federalists did not see any requirement for a Bill of Rights. Its adoption was the price for getting several of the States to adopt the Constitution with its articles of "permanent union" over the Articles of Confederation. The Federalists thought that anything that needed protecting could be protected by the Congress (shudder! --- but then the early members of Congress tended to be a more rational lot than we see today).
Does anyone have a short history of abortion? When and where they began? Something along those lines. Just interested.
Unfortunately, we the people neglected that duty for several decades and elected the wrong people. And now we have several decades of bad Supreme Court decisions that will take another generation or two to roll back.
I like the current trend, but it's going to require a sustained effort to shift the direction of our ship of state. In the end, the American people will have the kind of government they desire whatever that might be.
The judge fails to take into account that we do have what amounts to a "national referendum" every four years in our presidential elections. We may not get what we want or need in these elections, but their history tends to suggest that national referendums regarding any issue of national law or policy would be just as mixed.
So, this A$$ contends that any right not SPECIFICALLY enumerated in the constitution is a figment of the imagination?
Under his reasoning the Ninth amendment has no meaning, and is null and void.
[B]Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.[/B]
I would say yes, on the condition that you do so only at home, and do not venture into public area's until all effects have completely worn off.
It's not one created by the US Constitution.
What kind of a judge wants to amend the Constitution via the mob. Madison makes it pretty clear in Federalist 10 that pure democracy is a tyrannical form of government and is dangerous to liberty. A short excerpt of Federalist 10 says:
From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.
Anyone else interested in hearing about why the founding fathers didn't use national referendums can read more of this federalist paper on the following link.
http://www.constitution.org/fed/federa10.htm
This is worth quoting again. I'm often disturbed by 'conservatives' who rail against a 'right to privacy' because it wasn't enumerated specifically in the Constitution. I believe that the main reason for their objection is that it has been used to support the legal status of abortion. If you take abortion out of the equation, I would imagine their objections would be lessened somewhat.
When the Constitution was being debated amongst the states, one of the larger points of contention was whether or not a bill of rights would be included in the document. The federalists, as shown in the Federalist Papers were opposed to the inclusion of the 'bill of rights' because they thought that by enumerating some rights specifically in the Constitution, that it could, and would be argued that other pre-existing rights enshrined in the Common Law would be denied to even exist because they hadn't been enumerated.
The anti-federalists, as documented in the Letters from a Federal Farmer, felt that if they weren't included the Constitution, FedGov would have no real limits to its power.
The Federalists lost the argument, and it is lucky for us IMO, as I shudder to think how far FedGov would have gone towards being a more effective police state without them. At the same time, it has been shown that the Federalists were right about what has happened in relation to those things enumerated, and those that were not.
This is especially true as it concerns the topic at hand. Given the other provisions found in the 'bill of rights', specifically the verbiage of the 4th amendment, I find it hard to believe that people can believe that Americans don't have right to privacy. I think another way of describing this 'right' is to call it a right to be left the hell alone. As long as we're living peacably, and not harming others, the government should just Keep Out. Unfortunately, there are too damned many people who think that it is government's job to play nanny to us all.
Clearly, "The right of Privacy" is just misdirection from the real intentions and agenda of the leftist that promoted "Roe v. Wade". "Privacy" is the smokescreen for those activist judges that wish to remake society along leftist lines, by fiat. Even if a right to "Privacy", how can it trump the civil rights of those who are unborn, those without redress or counsel?
Privacy is meant to be more than a semi-shadow or penumbra, it is meant to be an opaque, impenetrable screen that hides real actions and intentions. We are not only not allowed to act in interference of the right in regards to abortion, we are not even able to think about it, or even discuss it honestly. The perpetual use of the dishonest language of PC euphemism signals the weakness of "Roe v. Wade", that regardless of any perceived rights of privacy. It can never trump a human being's civil rights, or it would do so in all other situations, which it clearly does not.
The Democrat political leaders that use this dishonest language wish to impose an enforced ignorance of the law, reality, and the true nature of just what abortion is; the termination of an innocent human life without due process, redress, recourse, or representation in front of the imperial court that has condemned it.
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