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.

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.

No, this is just plain wrong. Prior to the adoption of the XIV Amendment the entire Bill of Rights applied only to the federal government. After the adoption of the XIV Amendment the SCOTUS gradually started the Nationalization of the Bill of Rights and gradually applied more and more of its provisions against the states. Compare Bute v. Illinois, 333 U.S. 640 (1948) (Due process and the BoR does not require states to provide counsel or to determine whether the defendant wants counsel. State courts are not bound by the procedures that federal courts are bound to follow.) with Gideon v. Wainwright, 372 U.S. 335 (1963) (The "right to counsel" is fully applicable against the states). Wolf v. Colorado, 338 U.S. 25 (1949) (the states don't have to follow the exclusionary rule) with Mapp v. Ohio, 367 U.S. 643 (1961). However the SCOTUS NEVER incorporated some provisions of the Bill of Rights, among them the Sixth Amendment's implicit guarantee that convictions be obtained only from unanimous twelve-member juries (Burch v. Louisiana) and the Second Amendment.

I'm not exactly sure what generates the fear of courts entering into the 'privacy rights' issue as it applies to legislative actions. The courts do this all the time when it comes to first and second amendment rights. Why should the other rights clauses be sacrisanct to lefislative bodies?

There have been a number of comments on this thread that relate to there being reasonable exceptions to rights to privacy, the general welfare and crime being two.

I do believe the Fourth Ammendment establishes privacy rights. If it does not, then all manner of abuses are free to flow in where rights recede.

1. Situation one finds a local Police Chief under pressure from a local power player, to uncover information what would help his business. If the Fourth Ammendment does not guarantee privacy, then there's nothing to stop the Police Chief from directing his officers to enter a business at will, search for and document private information. This is clearly wrong. It is clearly forbidden by the Fourth Ammendment. The owner of the business in question, must be assured his papers are private and not the subject of abuse.

2. A couple likes to take risque photos in their bedroom. They develop a small collection of private materials. They also have private banking and other papers. When they leave on vacation, they have every right to expect their private documents not to be riffled by neighbors or authorities. If any of this information were to be discovered as having been pilfered or having shown up on the internet, the couple would have every right under the constitution to demand criminal prosecution.

3. The leftist Mayor in a small sized town makes it his goal to remove all weapons from the citizens in his jurisdiction. Leaving aside the Second Ammendment rights for a moment, the Mayor cannot demand his police chief have his men go door to door in order to go inside and do a physical inspection. If a citizen is deemed to have a weapon, the police may obtain a warrant and enter for reasonable cause. If challenged, they will have to explain what reasonable cause justified the warrant. And if their case is weak, those associated with this action are open to prosecution.

In certian circumstances, it is agreed that these rights may be infringed at times due to special circumstances. It is not expected that under the normal course of daily activity, citizens should have to be subject to abuse of these rights to privace. I do consider them privacy rights. They clearly are.

Citizens of the United States do have a right to privacy. We are not subject to our government, except as laws are violated, or a clear and present danger to the community exists.

Let's remember something. In our nation we grant power to the government. The government does not grant power to us. Government answers to the people. We must not lose sight of that fact, or we are no better than any other nation.

paulsen misinforms:

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.
-- how is it possible that some states allow concealed carry and some don't?
How is it possible that some cities actually ban the ownership of handguns?

By igoring the clear words of the Constitution, combined with the failure of our President, Congress, and Courts to insist that they cease such prohibitions. --- The 'majority will' is operating to infringe on our RKBA's, urged on by 'democratic' folks like you.

What happened to Equal Protection and Due Process?
(Answer: The second amendment doesn't apply to the states, only the federal government. Gasp!)

Yes robby [gasp], we here at FR are no longer shocked at your refusal to support the Constitutions 2nd Amendment as the Law of the Land.

Make you proud?

The second was not limited in scope as the first was to laws that Congress passes. The second was a right given to the people, and the 14th explicity extended all rights given by the BOR to the citizens of states.

This is just wrong!

BARRON v. CITY OF BALTIMORE, 32 U.S. 243 (1833)

The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

As you can see it was universally understood prior in the early days of the Republic that the BoR applied only to the fedgov.

As to the "incorporation". Well, even during the heyday of the Warren court it never went as far as to claim that the entire BoR was incorporated and applies to the states. Surely you don't want to be in the same league with "Wild Bill" Douglas ;-).

This is just wrong!

BARRON v. CITY OF BALTIMORE, 32 U.S. 243 (1833)

As you can see it was universally understood in the early days of the Republic that the BoR applied only to the fedgov.

"Because the SC has ignored the obvious interpretation of the constitution for several decades now. Many government entities have passed obviously unconstitutional law and gotten away with it."

Unchallenged? Or challenged and ruled constitutional, though you disagree with the court's conclusion?

You're pretty flippant with simply calling things "unconstitutional" when you can't explain them any other way. My Occam's Razor explanation that the second amendment simply doesn't apply to the states aparently triggers your cognitive dissonance.

Most people are under the mistaken impression that all of the Bill of Rights have been extended to the states. It's not true.

True, in fact only some parts of the BoR have been extended to the states.

F.ex.

Freedom of speech - Giltow v. New York (1925)

Right to counsel in capital cases - Powell v. Alabama (1932)

Establisment of religon - Everson v. Board of Education (1947)

The exclusionary rule - Mapp v. Ohio (1961)

Right to counsel in all cases - Gideon v. Wainwright (1963)

Trial by jury - Duncan v. Lousiana (1968)

Some parts of the BoR (like the 2nd Amendment) were never extended to the states and some parts of the BoR (like the Sixth Amendment's implicit guarantee that convictions be obtained only from unanimous twelve-member juries - the Supreme Court held that juries had to be composed of twelve persons and that verdicts had to be unanimous,because it was customary in England) were explicitly limited to the federal government (Burch v. Louisiana in 1979).

Griswold did nothing to create any additional federal powers. It ruled that since the right to privacy was not an enumerated right under the Constitution, it was reserved to The People, and that, as such, no state had the right to restrict it. It NEGATED a state "right," but did not create any new federal power.

The right to privacy became, in effect, a federally protected constitutional right by virtue of the Ninth Amendment and emanations proceeding from several others. The Court does not address any Tenth Amendment concerns in Griswold, and I don't know that any were ever raised.

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