Why the Right To Privacy is Not in the Constitution (A History Lesson)

From the Book: The Trouble With Democracy ^ | 2001 | William D. Bairdner

[MalcolmS]

Please note that the following excerpts have been typed in manually. I apologize in advance for any typos and spelling errors. This material is not available online. The link goes to the book's page on Amazon

From Chapter 1, Unpacking the Myth of Democracy

In sharp contrast with the Athenian system, which (at least for the controlling class, called citizens) operated on the basis of the equal rights and public merit of all voters, the American founding was shot through with the influence of Christianity, for which the determining feature of humanity has never been innate goodness, but rather a tendency to imperfection and sin.

From Chapter 2, Freedom, Democracy, Slavery

The modern Christian population--that is, just about everyone at the time Canada and American were cobbled together--held that true freedom could come only to submission to divine law, the moral strictures of one’s civil and religious community, and proper fulfillment of one’s duties and obligations. ... This meant that they believed in corporate freedom: they expected their moral community to lay down the laws of acceptable behavior for all. The modern idea of declaring oneself “free” by virtue of escaping these Christian ideals they would have held to be extreme selfishness, sin, and madness. They thought of uncontrolled liberty as a bad thing, and were quick to characterize it as mere license.

Like the stoics before them, what they understood as true freedom for the individual was instead an ordered liberty, a life lived in keeping with the natural law of God, right reason, and the restraint of one’s unruly passions in the service of community.

The most stirring understanding of this personal and public standard was Edmund Burke’s eloquent and memorable warning that “men are qualified for civil liberty, in exact proportion to their disposition to put moral chains on their own appetites. ... Society cannot exist unless a controlling power upon will and appetite be placed somewhere, and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters.” This was the widely accepted wisdom of the Western world, and it was deeply rooted in the image of the chains of slavery.

Bondage to sin and the passions, then, was a most horrible slavery to one’s own animal self, and to be released from this bondage—the pathology, we might say today—was as real as to be released from a human tyrant or slave-owner. In start contrast to our present understanding, a freedom of uncontrolled self-expression meant immediate moral slavery. The ideal was for men to be free not for but from their own desires, so they could subordinate and devote themselves to others in their moral community, and above all to God. ...

That is why our founders expected, indeed sought fervently to live in, the proper sort of “intrusive community”, meaning one that supplied common beliefs and standards that allowed its members to rest in what they called true freedom.

[MalcolmS]

Given the discussions of the last few days, I have been wondering if the founders would view the right to privacy as a natural of God-given right, covered under the Ninth Ammendment.

I was recently given the book noted above, and after finishing the section on Roman and Greek history, came upon the passages above.

According to the author's perspective, I conclude that the founders would not have recognized privacy as a natural right. It seems rather that they would have found it in opposition to what they regarded as the source of true freedom.

I thought that this was an interesting historical perspective.

[MalcolmS]

Typo report no. 1. The author's name is Gairdner, not Bairdner. Sorry. Oh mighty moderator, could you fix this please.

[MalcolmS]

We were discussing this on another day, another thread. I thought this was an interesting historical perspective.

I believe it was Rush Limbaugh who recently said that we must understand the constitution, and the words in it, as the framers understood those principles and words. Otherwise, the constition can be changed to mean anything by redefining the words in it, and no protection is afforded anyone.

(This is not to mean that society must remain static, as both laws can change and the constition can be ammended).

[RLK]

There are areas not specificall mentioned or guaranteed in the constitution because at the time the document was written, nobody thought society would be crazy enough to hold them in doubt. The statements of not quartering troups in private homes may be construed as a guarantee of privacy.

[aardvark1]

Good post. Although we don't have right to privacy (at least as is now proclaimed), but we do have an explicit right to private property which is being trampled anew each day.

[MalcolmS]

>>>The statements of not quartering troups in private homes may be construed as a guarantee of privacy. <<<

I think this was one thing the British did that just really irritated people. It was theft for one thing, as I don't believe they paid "room and board".

There are many laws extant at the time which clearly infringed one privacy (e.g. against adultery). If this term was construed as a guarantee of privacy, why were they allowed to exist?

You have a stronger argument with the language of the Fourth "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated", but even this right is tempered by the fact that a warrant may be issued.

[ido_now]

The Constitution is the establishment document for the government of the United States Of America. It specifies what its defined powers are to be.

The Bill Of Rights was an after thought and a protection against expanding the powers of government granted by The People to the government. While enumerating 8 specific limitations, the 9th and 10th Amendment was a reiteration that powers not granted to the government in the Constitution were reserved to the States or to The People.

The Constitution applies to the government, it is its law, outside of the powers granted, it does not apply to the States or to The People.

[steve50]

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.

Some fairly strict limits placed on the grant of a warrant tho. We clearly have a right to privacy that requires a Constitutional Amendment to remove,imho.

[CGVet58]

ping keeper - add to articles of faith

[jlogajan]

allowed its members to rest in what they called true freedom.

To the religious wackos, "true freedom" means the freedom to believe and act just like they do -- or else!

[LiteKeeper]

SITREP

[tdadams]

Can you please explain what this newspeak "SITREP" is you keep posting everywhere?

[tdadams]

The modern Christian population--that is, just about everyone at the time Canada and American were cobbled together--held that true freedom could come only to submission to divine law

In a nation of nearly 300 million, let me suggest that this may be a bit anachronistic. Not only that, it smacks of creepy fundamentalist dogma, which believe it or not, is fairly unappealing to many in America today.

The problem with basing laws solely on moral objections is that there's no shortage of people who will demand that anything and everything be outlawed based on their moral objection. And they all sincerely believe that what they object to is universal and obvious.

In Malaysia right now, people are being fined for holding hands in public because it offends the morality of the Muslim leaders. Early this century in America, it was considered immoral to teach your children German!

Unless there is the presence of manifest harm, morality laws only seek to impose by government force those moral strictures which could not be obtained by persuasion.

[Double Tap]

Anybody ever heard of the Nineth, IX, Amendment?

[Question_Assumptions]

Bump for later.

[Chancellor Palpatine]

Dumb, and falls into the trap that all Borkish people are stupid enough to wander into - the absurd notion of channeling the minds of the founders. The Shirley Maclainization of Constimatooshinal Jurisprudence, if you will.

[Snuffington]

Anybody ever heard of the Nineth, IX, Amendment?

The 9th amendment was put in there to defer decisions on an exhaustive list of rights. It didn't affirm or deny any right in particular. It simply meant the Constitution's silence on a non-enumerated right should not be interpreted as a denial that the right existed (a risk suggested by the anti-federalists, even though the notion that anyone might interpret the Constitution this was was mocked by the federalists).

However, many people turn this on its head today and interpret the 9th amendment as a positive affirmation of all non-enumerated rights. It isn't that either. It keeps the Constitution out of the question, leaving the states and the people free to sort it out among themselves.

[nonsporting]

"True Freedom" means not be be a "slave to sin." This is hardly a "wacko" concept.

As to "or else!" Of course, if we "religious wackos" don't believe and act just like the libertines, we get "or else'd." Unfortunately only time will tell which view of freedom results in a happier (more blessed) culture. The culture of death does not foster true freedom, but rather encourages bondage in sin.

[MalcolmS]

>>>In a nation of nearly 300 million, let me suggest that this may be a bit anachronistic. <<<

It is more than a bit anachronistic, that's why the post is titled "A History Lesson". Please see my post #3. I believe it is instructive to understand the history of how the framers understood the constitution. There is a reason why they did not explicitly put privacy in the constitution nor why they would consider it a "natural right" falling under the ninth ammendment.

We might consider it a natural right today (to differing degrees), but they would have argued with you. However, as I said in #3, "This is not to mean that society must remain static, as both laws can change and the constition can be ammended."

The problem with natural rights however is that anyone can claim virtually anything is a natural right--including your property, or your life. See the history of communism. It was all cloaked in the language of the natural rights of the working class.

>>>Not only that, it smacks of creepy fundamentalist dogma, which believe it or not, is fairly unappealing to many in America today.<<<

This post is intended to be descriptive of history, not prescriptive for the present. There are very few if any, even among the fundamentalists, who would like to see the return to the days of the scarlet letter (branding as punishment for adultery). Actually, there's probably good reason for that. One or two of them would have gotten "burned" under that rule.

>>>The problem with basing laws solely on moral objections is that there's no shortage of people who will demand that anything and everything be outlawed based on their moral objection. And they all sincerely believe that what they object to is universal and obvious. ... Unless there is the presence of manifest harm, morality laws only seek to impose by government force those moral strictures which could not be obtained by persuasion. <<<

Manifest harm and morality laws frequently go hand in hand. Take the example of prohibition, or anti-tobacco laws.

All functional societies are based on a morality. Libertarians and Objectivists minimize those, but still preserve property rights and make it illegal to assault or kill someone except in self defense. Even Anarchists respect covenants made between individuals. But really that's just morality when you think about it. Why not out and out survival of the fittest? Because a civilization cannot survive in those circumstances.

A society has to agree to some type of shared morality and values. They then have to accept the results of those shared values. (Sometimes they are imposed by a dictator or conquerer.)

It is a delicate balancing act to find the right mix.

Excessive legislation of morals (e.g. prohibition) leads to disrespect for laws and rise of organized crime.

Complete lack of morality leads to chaos and the break down of societal cohesion. Historically, in the extreme this leads to depotism as the people sign their lives over to an absolute leader who will restore order. (By the way, do you think that it is a coincidence that those who promote moral relativism tend to show up the most in places like Anne Coulter's books?) Europeans sniff at American morality and patriotism in the same breath.

Lack of law and order (e.g. pre-Guliani NY City) leads to citizens locked in their homes, afraid to go out onto the streets.

Excessive law and order leads to jack-booted thugs dragging citizens to prison for minor or imagined offenses.

Excessive Socialism leads to lack of motivation and economic stagnation.

Unfettered (unregulated) capitalism leads to fraud, stock scams and bubbles.

As Winston Churchill said, (representative) democracy is the worst of all possible systems of governance, except for all the rest. Or something like that.

And speaking of history, didn't someone else say that those who do not study history are doomed to repeat it. As we approach the July 4th, I thought this post would be an interesting look at those times.

[inquest]

Umm, hello - there's this thing called reading. The Founders wrote their sentiments quite prolifically, and it's available for all to read. The courts do it all the time, and not just the Borkish types either. If you're too lazy to engage in any kind of scholarship of your own, that's your problem. But don't try and bring us down to your level just because we're making you look ignorant.