Constitutional right to privacy a figment of imagination

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

[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?

[mrsmith]

An idiot would be someone who thought the Ninth Amendment applied to the states and not the federal government.

A federal anti-abortion law would run afoul of the Ninth.

However when the people of a state pass a law they are defining their unenumerated rights. The Ninth expresses that it is in their power, and theirs alone, to do so.

Reading the Ninth to put our uneneumerated rights into the hands of a branch of the federal government is backward.

The advancement of a referendum, after a whole article criticizing acts that aren't supported by the constitution, is pretty stupid of the author.

[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.

[7MMmag]

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

You try that, and they'll invoke a commerce clause...:)

[ops33]

I agree. The IX ammendment clearly states that there are other rights, not listed in the Constitution, that the people retain. I wonder, if I do not have a right to privacy, then what other rights do I retain under the IX ammendment?

[RonnG]

I don't know about you but it seems to me that people have a lot less privacy nowadays than they did before the Supreme Court said they had a right to it.

[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?

[Iwo Jima]

I agree that the phrase "right to privacy" is an unfornate and misleading description of the right to liberty. The right to liberty -- to be let alone -- is expressly recognized in the 14th Amendment and implicitly recognized in other parts of the Constitution -- such as the 1st, 2nd, 4th, 5th, 9th, 10th Amendments and all manner of other writings elucidating what the Founders intended to create.

[kjo]

Yes. What you say makes absolute sense. Roe v Wade is the greatest self-inflicted wound the Court has made since Plessy v. Ferguson and Dred Scott v. Sanford.

[narby]

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

There are always limits to rights. The famous "fire in a theater" limit to free speech, for example.

As to privacy, I don't have a right of privacy to kill you, if I do it in my home. And as I posted above, I don't have a right of privacy to put substances such as cocaine in my body (although, I think I should have that right, it hasn't been recognized by the courts).

So what are the limits of privacy? In my opinion, I should have the right of privacy to put drugs in my body, well before someone has the right of privacy to terminate a late term baby, because in the drug case there is no question of another human beings rights (the childs rights) on the table. So I think the courts have things a bit backward.

[RKV]

Before the 14th Amendment the case law supports your argument that the 9th doesn't apply to the states. 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. What judges have made of that since then has been a hash - some rights incorporated, some not.

[poinq]

That is absolutely true. The right to privacy is always being reduced by those who defend it to the death when it comes to abortion. They don't give a damn about privacy. They only care about abortion.

The income tax is the root of all evil when it comes to the envasion of privacy.