[DoughtyOne]

http://caselaw.lp.findlaw.com/data/constitution/amendment04/

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This seems fairly clear to me.  If this isn't a guarantee of privacy, what is?

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 stakes are too high not to.

[IronJack]

The Ninth Amendment principle, that enumerated rights in the Constitution do not disparage other rights retainged by the people, is one of the arguments used in Griswold to ESTABLISH the right to privacy. However, this is an interesting twist on that argument, subverting it instead to place the right in the hands of the people rather than the Court.

I don't think it can get much traction though, because the counter is that the appellants in Griswold were in fact demanding that just that right, i.e., the unenumerated right to privacy, be placed in THEIR hands, not the hands of the Court, the Congress, or any state legislature. In effect, this argument defeats itself.

[dpa5923]

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.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The author of this piece is an idiot.

[Iwo Jima]

From the article, As defined in Article V, the power to amend lies with the American people, acting through the Congress and the state legislatures.

How then is it Constitutional to amend the Constitution by national referendum, as Judge DeMoss proposes? Indeed, it is not. But I have never mistaken DeMoss for a constitutional scholar or anyone particularly enamored of the Constitution or the rule of law.

This article demonstrates why DeMoss has not been on anyone's list for Supreme Court justice. His comments range from trite to erroneous, with a few correct observations thrown in here and there.

[don-o]

Long, but well worth a read

[Natural Law]

The right to privacy is a mischaracterized condition. The basic concept of the Constitution is it clearly places limitations on the government and that the default condition is for personal rights, not governmental control. The right of privacy is actually an acknowledgment that there are areas in which the government may not intrude and has no authority to make laws. It in no way implies that all personal behavior in these exclusion areas is sanctioned or that state or local governments may not act.

[narby]

a state law criminalizing the use of contraception was unconstitutional when applied to married couples because it violated a constitutional right of privacy.

So do I have a privacy right that makes it OK to use cocaine?

[poinq]

There is clearly a right to privacy or at least a concern for the value privacy. The restrictions on searches by the government points to it. But thats not the issue. Nobody is against abortion because it is an example of imposed privacy. If you are against abortion its because its murder. The civil rights of the unborn are being violated.

Privacy has its limits. If a rapist drags a 13 year old girl into his house and shuts the door Nobody argues the right to privacy they act for the defense of the girl. If somebody goes to get an abortion the issue is simply, does the baby have the right to exist or not. Privacy has nothing to do with it.

[RKV]

Interesting post. I find that I want to agree with the judge in most respects, but there appears to be a few things missing in his argument. If I can encapsulate what is a thoughtful discussion and reduce it to its based terms - the judge says that there is no right to privacy in the US Constitution. Clearly this is correct based on reading the plain text of the document. I for one am glad to see the judge actually reminding us of the 9th and 10th amendments so few jurists of any stripe do so today. He does however use them as a club to beat down the protections of another amendment which he does not quote at any point in the essay - namely the 4th Amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I suspect my definition of privacy may be different than the judge's. From RKV's computer monitor, the 4th sounds quite a bit like "right to privacy" to me (IANAL). It would be interesting to hear what if any unenumerated rights exist according to the juege and how they would be enforced. I suspect that irrespective of the judge's invocation of them in this essay, that they are legally non-existant in his jurisprudence. That's the point where arguments of this type fail for me. I just happen to think that (at least as designed) the powers of the Federal government were few and enummerated - unlike most modern (post-New Deal) judges irrespective of their stripe. Call me one of those who believes that the original constitution of the founders is now in exile. Judge Douglas Ginsburg came up with the phrase in a book review.

So for 60 years the nondelegation doctrine has existed only as part of the Constitution-in-exile, along with the doctrines of enumerated powers, unconstitutional conditions, and substantive due process, and their textual cousins, the Necessary and Proper, Contracts, Takings, and Commerce Clauses. The memory of these ancient exiles, banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty-even if perhaps not in their own lifetimes.

[FreedomFarmer]

After having practiced law in Houston for 34 years before being appointed in 1991 by George H.W. Bush to the 5th U.S. Circuit Court of Appeals, where he now serves, this twit seems to have never stumbled across any mention of the 4th Amendment?

[R.W.Ratikal]

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

One more reason why the far-left should not be permitted to name sitting federal judges.

BTW why don't we stop calling them "liberals," "socialists," "progressives," and "collectivists" and start calling them what they really are, communists?

[Psycho_Bunny]

This guy's a judge?

[Jim Robinson]

Interesting read. But I'm wondering about this "national referendum." Is he calling for a constitutional convention?

[PzLdr]

The argument to be made, IMO, is this: The Founders acknowledged rights to privacy in the First Amendment [freedom of association], the Third [quartering] and the Fourth [Search and Seizure}. That is the EXTENT to which they guaranteed rights to privacy under the FEDERAL Constitution. The States were, of course, free to grant greater rights to privacy. The "penumbras and emanations" [sounds like a Roger Corman sci-fi flick] of GRISWALD v. CONN. created by the charlatans and pinheads of the Warren Court, and which constitutes the entire rationale for ROE v. WADE, is smoke and mirrors, and has been acknowledged as such by intellectually honest Law Profs. since I went to Law School shortly after ROE came down.

And for all those Liberals out there: If the Constitution is a "living document", then STARE DECISIS don't mean squat, since it can "talk" to 5 Conservative Judges just as easily as 5 bed wetting lefties - with a different result. And if it isn't, all Thirteen States made abortion a criminal offense when the Constitution was ratified, so the Founders never intended to make it legal.

[wolfcreek]

Does anyone have a short history of abortion? When and where they began? Something along those lines. Just interested.

[Richard-SIA]

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]

[Altamira]

"The advocates of a constitutional right of privacy speak as though that right were expressly stated and enumerated in the Constitution."

These people who assert that we only have the rights that are enumerated in the Constitution have it all wrong. The Constitution was written to restrain government, not to limit the rights of the people.

I do have a right to privacy, arguably through the 4th Amendment,and also because God gives me one. Privacy, the right to be left alone as long as you are not hurting anyone else, is a natural right. I do not need government permission to be left alone.

Besides, the Constitution and the Bill of Rights states very clearly that the enumeration of certain rights is not intended to disparage other, unenumerated rights that we also have. An unenumerated right is just as much of a right as an enumerated one.

[Porterville]

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.

[kittymyrib]

Too bad the Supreme Court is not as zealous in protecting the right of common citizens to their private property as they are the ficticious "right to privacy". Republicans on the Judiciary Com. should have rubbed the libs faces in Kelo every time they whined about protecting "the little people".

[loveliberty2]

Jefferson: "The God who gave us life, gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them."

There is a peculiar irony to the Left's claim that a woman (a mother, by the clear implication of their objective) possesses a so-called constitutional "right to privacy" which trumps the clearly constitutional protection of life and liberty of the child in her womb.