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 BOR only applied to the federal government.

The First Amendment applied only to the federal government, because it was a specific limitation on what Congress could do. The other amendments had no limitations in scope, and I believe would have applied to every citizen in the various states.

The clause "The Congress Shall Make No Law" in the First reads like it is a preface to every succeeding amendment in the BOR. But the "First" I believe was actually the third amendment offered to the states for ratification. It become the "First" amendment merely because it was ratified before the rest.

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.

If there was any specific limitation on the BOR, other than the limitations in the First, please enlighten me how the framers documented it. Perhaps you can quote something from the Federalist Papers, or the debate in Congress offering the BOR for ratification.

RKV wrote:

"If you read the Senate debate on the 14th, then it is pretty clear that is what was intended - application of the BOR to the states, that is."

pausen replies:

Well then it was one of the better kept secrets, in that neither the U.S. Supreme Court nor the Senate itself thought the 14th applied the BOR to the states.

Yes robby, -- the reconstruction eras politicians & judges did not want to admit that ex-slaves were entitled to life, liberty, or property; -- they even deprived them of due process.
Very few still hold to your belief that this was a correct interpretation of the 14th.

A mere nine months after the 14th was ratified, the USSC ruled in Twitchell v. Pennsylvania that the Bill of Rights restricted only the federal government, not the states. Nobody mentioned the 14th Amendment.

Of course not. The court did not want to enforce the 14th against the southern States that were ignoring it.

Eight years after the 14th was ratified, Congress was considering the "Blaine Amendment", a proposed constitutional amendment to impose the First Amendment's religious freedom mandates on the states as well as the federal government. Why would they do that if the 14th amendment already applied the First Amendment to the states?

Because they did not want Utah admitted as a secular State, and were preparing to pass an Amendment to that effect if necessary.
-- It wasn't. -- Rationality prevailed.

I am disgusted enough with what has been done to our rights since the founding of this country to recognize that in all reality we now have virtually no rights at all, enumerated or not!

We now have only those limited rights we can afford to defend in court, our own wallet against the Gov. Org.'s unlimited funds.

The continuing dismissal of our rights, enumerated or not, as being merely "policy", subject to denial or reinterpretation at Gov. whim, is beyond contempt!

"Judges" engaging in judicial activism and spouting personal ideology to support their treasonous attacks on our liberties may succeed in reducing our rights to nothing, but that does not make them right.

People idly talk about the fall of our republic, overbearing Gov. breaking faith with it's own basic tenets is the most likely source of that fall.
Denying that U.S. Citizens have a right to privacy is certainly a concrete step toward the totalitarianism that will eventually destroy this country.

This also explains why so many in Gov. are working so hard to reinterpret our RKBA in a manner to diminish and destroy it.

Well, Congress has determined, in a Congressional finding, that your personal use of marijuana also substantially affects their interstate regulatory efforts.

LOL. I'm sure they did. Congress does all kinds of unconstitutional things.

Flying an airplane locally around the pattern does affect interstate commerce. A transit aircraft from another state could easily midair with me while I'm violating the FARs flying in the clouds without a clearance. THAT affects interstate commerce.

What I do in the privacy of my house does not. Violating some other person's right in my house should put me under threat of legal sanction, but what I do to my body, in the privacy of my home should be nobody's business.

At least if the SC is to maintain consistency with Griswold and Roe, then that's the case.

Lest anyone get the wrong idea, I DO NOT use (illegal) drugs of any kind. I'm merely opining on the hypocrisy between the SC's rulings on contraception and abortion vs. their rulings on what I do can with my own body unrelated to sex (maybe if I mixed Viagra and ... nevermind).

"Judges" engaging in judicial activism and spouting personal ideology to support their treasonous attacks on our liberties may succeed in reducing our rights to nothing, but that does not make them right.

But oddly enough, you've been taking the position on this thread consistent with judicial activism. In finding that right to privacy listed nowhere in the Constitution, the judges were able to use it to say that states can't prohibit abortion.

There's nothing preventing them from a new constitutional right for you. Let's call it the constitutional right to safety.

They can then use that right to impose a duty on the state to do something in order to protect you. Pick your poison, mandatory identification requirements, travel restrictions, whatever they want.

THAT's what's dangerous about finding new constitutional rights for you. They're used in efforts to take away your other rights.

Now that's interesting. The Congress at the time noticed that the First was a specific limitation on what Congress could do, not a "Right" given to the people. And they recognized this 8 years after the 14th.

I mentioned in an earlier post that the "First" was actually passed out of the Congress as the third amendment. It was ratified first, and thus is listed at the top. This means that the words "Congress shall make no law", which appears to be a preface to the entire BOR, actually only applies to the First amendment alone.

Why did they use that language, unless the Congress was the only governmental body prevented from abridging religion, etc? Quite a bit of debate went into these amendments, so that language was deliberate.

My contention is that the First does not specifically enumerate rights of the people, but does exactly what it says it does, limit the laws Congress can pass. Interpreting it any other way, without explicitly amending that wording in a subsequent amendment, is not warranted.

Not that I want "freedom of the press" abridged, since the Congress is already trying to do that via campaign laws. It's just means they sould get busy and pass an amendment actually giving us freedom of the press, religion, speech etc. because I don't think we actually have those rights spelled out in the constitution.

The BOR only applied to the federal government. The federal government, for example, could not restrict the freedom of the press -- but the states could, and did.

Article VI clearly applies our supreme "Law of the Land" [as amended] to all States, "notwithstanding" any state laws "to the Contrary".

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

The 14th amendment was part of a trilogy (13th, 14th, & 15th) to deal with the newly freed slaves. The slaves were not citizens of any state and consequently had no state-protected rights or privileges.

So their ex-masters claimed. It's odd to see that this same theory is still used.

The 14th amendment made them "citizens of the United States", and extended some fundamental privileges and immunities to them.

Yep, just "some fundamentals" like life, liberty or property.. -- The rest of our rights did not apply to ex-slaves until the Court 'incorporated' them, -- is that what you're claiming paulsen?
-- Incredible stance..

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.

Good grief robby, read the 2nd.

I find the abortion arguments irrelevant distractions, the emotionalism they engender gets in the way of rational thought.

No "Judicial Activism" is needed to recognize our right to privacy merely because it is "unenumerated".

Under the Ninth Amendment all unenumerated rights are intended to be equal to the few enumerated rights.

Let me put it this way, We have the right to do any thing we please that is not specifically illegal!
This is a major difference between the American philosophy and most of the rest of the world.
In the regimes of Europe and the East people can only do what is expressly allowed.
It may even be THE major factor underlying the European, Eastern, and Islamo-facist hatred of us.
Their jealousy of our freedom is not a reason for us to surrender any of that freedom.

I will stand by our right to privacy, no matter what elegant or brutal argument is made against it, it is conceivable that I may die to defend it.

If your fear is that other unenumerated rights may become common, it would appear that you fear "too much liberty".

Clearly we are not going to settle this, I will continue to know that we DO have a right to privacy, without undo worry that our liberties are going to be further restricted in the name of "new rights".

It has been my observation that Gov. Org. already has plenty of pretext to diminish our existing rights without resorting to such arcane ruses.

Actually it is a right in the California Constitution (it's the real deal Jack):

CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS

SECTION 1. All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.

The abortion aspect of it is hardly irrelevant, but it certainly is not the main point.

The main point is that for every new right the Supreme Court finds you have in the Constitution, it is wresting power away from the states and away from you and bestowing it on themselves and the federal government.

That is the danger and I can't understand why you are unable to see it.

Agreed! My problem with the whole belief that there's no "right of privacy" enumerated in the Constitution is that between the 4th, 9th, and 10th Amendments, I'm very strongly of the opinion that there IS a right to privacy. To put it bluntly, unless there's an enumerated, specific power granted in the Constitution to the federal government, then the federal government has no damn business doing it.

That's part of the problem of the abuse of the "commerce clause" that so many conservatives decry.

Mark

The basic concept of the Constitution is it clearly places limitations on the government and that the default condition is for personal rights,

While I have no disagreement with your statement, may I suggest a slight change in the way you present it?

I disagree only with the way you make your argument: While the Constitution does place limits on the federal government, it does so by strictly enumerating powers given to the government BY the people. The Constitution is a set of rules that states what the federal government is allowed to do, and how to do it. On the other hand, the Bill of Rights IS a list of specific limitations as to what the government is allowed to do.

I realize that this is a subtle difference, and I don't mean to be a nit-picker, but by saying that the Constitution places limits on what the government can do, you're giving the mistaken allusion that the Constitution grants rights.

Mark

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