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.

It puzzles me why all you fellas think that this Republic can long endure if we allow States to ignore & prohibit our RKBA's.. Can you explain?

I think that it SHOULD be applicable against the states but it's a simple fact that it's (at least yet) not. The entire history of the BoR and the entire case law (starting in 1830) shows that the BoR originally limited only the federal government. Now after the adoption of the XIV Amendment the SCOTUS chose the "selective incorporation" doctrine rather than the "complete incorporation" and gradually extended most of the BoR provisions to the states. As I already said many times it did not extend some provisions of the BoR, like f.ex. the RKBA, but it also did not extend the right to unanimous jury verdicts. I believe that in order to avoid the whole XIV Amendment chutzpah (especially post-WW II when the SCOTUS changed its mind many times on what should extend to the states and what not, again compare f.ex. Bute v. Illinois - there is no right to counsel, and Gideon v. Wainwright - there is a right to counsel, or Wolf v. Colorado - no exclusionary rule, with Mapp v. Ohio) the Congress should simply pass a new Constitutional Amendment which would declare that the entire Bill of Rights is now extended to the states (OTOH some states may not want to ratify it...).

robertpaulsen; -- You're of course right. Most people here do not realise that the 2nd Amendment only applies to the federal government. Unless of course the SCOTUS does something about it.

How amusing. You're admitting that a SCOTUS opinion can change the meaning of the 2nd, "incorporating it" to apply to the States.

Where is the 'incorporation power' delegated to SCOTUS?

Now, here is a thornier issue - where does the federal government get the Constitutional authority to prohibit someone from growing a pot plant in their home for their own consuption.

They don't. Only the states have that authority. That's why the 18th Amendment was needed to permit the feds to prohibit personal consumption of alcohol. Now getting the courts to agree with that interpretation is a different story.

"The said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms." --Samuel Adams, Massachusetts' U.S. Constitution ratification convention, 1788

The 2A is a right of the people period as the plain language of the BOR's attests. Who do you suppose "the People" are?

I don't recall, but I doubt it. Fairly construed, the Fourth has nothing to do with takings or due process.

But not much is really evaluated fairly in the Constitution. It's quite common for a clause, or even a few words within a sentence, to be grabbed as a justification for a particular court outcome.

That's still preferable, though, to making up imaginary words and rights.

Of course. But Justice Black's dissent shows the reasoning of the Court and indicates that (although the majority did not admit it) it abandoned Ferguson v. Skurpa. Griswold meant that the SCOTUS gave itself the power to nullify state laws solely because they were "contrary to the evolving standards of decency" or "shocking to conscience". Exactly the same reasoning was used in Roe. The fact that the majority did not mention "substantive due process" in Griswold simply means that they did not want to explicitly overrule their own opinion from two years before. As Justice Stewart said in Roe:

Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment. As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.

It is of course a matter of discussion whether we accept the substantive due process standard (many conservatives like Justice Sutherland, Butler or Harlan II accepted it, whereas many liberals like Justice Brandeis or Justice Black rejected it). However if we do accept it we should not criticized Justice Blackmun for Roe. IMHO the courts should only "nullify" (of course technically they don't do thar, but the end is the same) state laws only if they violate some specific provisions of the Constitution and not if they violate the emenations of the penumbras which can only be seen by Justice Douglas and his friends.

The 2A is a right of the people period as the plain language of the BOR's attests. Who do you suppose "the People" are?

It is interesting to compare the First Amendment and the Second. The First starts out with "Congress shall pass no law" - which to simple ol' me, means it was a constraint on Congress, not anyone else.

Whereas the Second ends with "shall not be infringed" and also, as you noted, contains "the right of the people".

Yet the Second hasn't been incorporated by SCOTUS, whereas the First has (but somehow that "Congress shall pass no law" ditty was disregarded when they upheld McCain-Feingold.)

Which means, at the end of the day, that words have no meaning in this day and age.

Fairly construed, the Fourth has nothing to do with takings or due process.

Really? You don't think that protections against unreasonable seizures should carry weight against government takings to ensure that the takings are reasonable? Didn't Fifth Amendment takings have to first show that there weren't other reasonable alternatives for roads or building sites before a taking happened? Withouth the Fourth, one could take the first thing they saw, which is pretty much what they're doing now after Kelo.

I could see an argument in the case where there aren't other competing or influencing mentions in the Constitution, but when there are (as I believe there are in this case), then one should be balanced against the other to ensure that the interpretations are fair and consistent.

If Kelo didn't consider Fourth Amendment protections, would that be a possible avenue for a new case to give the Court a chance to reverse their Kelo ruling?

-PJ -PJ

No. It says that "the said Constitution shall be never construed to authorize Congress to (...) prevent the people of the United States (...) from keeping their own arms.". The BoR was meant to limit the power of the federal government, period. When in 1824 the SCOTUS was asked whether the Fifth Amendment denied the states the right to take private property for public use without justly compensating the property's owner it unanimously announced without even hearing the arguments of the City of Baltimore that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. As Chief Justice Marshall said:

"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.(...)

The third clause, for example, declares, that 'no bill of attainder or ex post facto law shall be passed.' No language can be more general; yet the demonstration is complete, that it applies solely to the government of the United States. (...)

Had congress engaged in the extraordinary occupation of improving the constitutions of the several states, by affording the people additional protection from the exercise of power by their own governments, in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language." There is no reason to suspect that the Second Amendment is different.

It puzzles me why all you fellas think that this Republic can long endure if we allow States to ignore & prohibit our RKBA's.. Can you explain?

I would bother but I've already gone through this.

Not really. What do you gain by allowing a State to infringe on your RKBA's? -- It's a simple question.

See the links I have provided. It is very clear the intent of the 14th Amendment was not meant to incorporate the Bill of Rights.

I've seen all those links before.
None of them make that point, as the framers of the 14th made their intent clear in the 1868 debates before ratification. They wanted ex-slaves to have the RKBA's.

As late as 1925 the Supreme Court ruled exactly that on the First Amendment. The Fifth was not incorporated until 1897. Do a quick search on 14th and incorporation theory.

'Incorporation' is as you said, a theory. Where in our Constitution is the USSC given the power to decide if an Amendment applies to State & local governments?
Clearly, Article VI applies all of the the US Constitution to States, "- any thing in the Constitution or Laws of any State to the Contrary, notwithstanding. --"

The entire history of the BoR and the entire case law (starting in 1830) shows that the BoR originally limited only the federal government.

Simply not true. Certain of the amendments contained in the BOR's limited the power of Congress, others were simply administrative and yet others acknowledged indivdual rights. According to your interpretation the BOR's should be called the Bill of Limited Federal Government.

While certain of the first 10 amendments certainly did that, some did other things. Please explain how the text of the second amendment is simply a limiting of federal power and not an acknowledgemnt of an individual right.

If Kelo didn't consider Fourth Amendment protections, would that be a possible avenue for a new case to give the Court a chance to reverse their Kelo ruling?

I suppose, but I'd consider it a long shot. The Fourth and Fifth Amendments are talking about entirely separate things and it takes a pretty tortured reading of the Constitution to argue that either impacts the other.

Don't get me wrong, I still can't find the constitutional basis for the Kelo decision. It is just as bad law as Roe or the original commerce clause decisions. All of those cases seem clearly to me to be decisions that were made on the basis of policy with some effort made to cloak them in constitutional reasoning. Horrible law from the purists or strict constructionist reasoning.

You're right, the judge is wrong. The right to privacy is the implied right that the forth amendment protects. The right to privacy however, does not prevent the passage of any particular law unrelated to the Amendment's prohibiitons. It's really that simple.

" 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 Bill of Rights doesn't apply to the enemy. As long as the info gathered is used only to detect and thwart enemy ops, the taps are valid. Again, simple.

This is a guarantee to privacy, but in the Alice in Wonderland world of the judiciary, privacy doesn't mean what privacy actually means. The privacy addressed in the fourth amendment has specifically to do with what the police must do before searching a person, his or her possessions, or their property. The courts, most egregiously in Roe v. Wade and in the decision on homosexual sodomy, interpreted the fourth amendment to mean because certain acts take place behind closed doors, they are legal. The right to privacy addressed in the Constitution has nothing to do with whether or not specific acts are illegal, but what procedures governmental agencies must use to enter private residences or search individuals.

Ruth Bader Ginsberg is evil, but understands this, and is a very intelligent jurist. She claims the right to abortion is actually contained in the fourteenth amendment, guaranteeing equal protection. Since men cannot have babies, the law only applies to women. This is also faulty reasoning, but is more defensible intellectually than the fourth amendment argument. It's also less likely to open the door to absurdist interpretations. If the reasoning used in Roe v. Wade was applied unilaterally, drug use would be constitutionally protected, as would prostitution, bestiality, all forms of gambling, suicide, dog fighting, games of Russian roulette, and basically any other form of activity, so long as it didn't take place in public view.

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