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.

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. --"

If that was the case the Bill of Rights would have applied from the beginning. And that is clearly not the case. I would suggest you look to the Amendments that Madison offered and were denied. Specifically the one that stated the Bill of Rights would apply to the states. As that Amendment did not pass, the Framers understood the Bill of Rights were to apply only to the relationship between the citizens of the respective states and the national government

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.

I don't think it's that tortured, and I don't think one can easily attribute some amendments to be of any one "thing."

The First amendment was originally three separate amendments that were combined into one. What do bans on establishment of religion, freedom to worship, freedom of press, freedom to assemble, and freedom to petition the government have in common? Also, it's being first has no special additional meaning.

The Fifth Amendment is mostly about how a person is to be treated when accused of a crime. The "takings" clause at the end seems to be an afterthought if the Fifth is about criminal protections.

In that regard, the takings clause may make more sense being at the end of the Fourth Amendment, which focuses on protection of property against unreasonable search and seizure. The Kelo ruling seems to be beyond unreasonable seizures of "houses," which is a property that is specifically mentioned in the Fourth amendment, as opposed to just "private property" in the Fifth, or "papers and effects" in the Fourth.

-PJ

After canvassing the Ratification materials, Charles Fairman concluded that they confirm that the Bill of Rights was not incorporated in the Amendment. That view is powerfully buttressed by Dean James Bond's recent study of the Ratification debates in Illinois, Ohio, and Pennsylvania. It contains striking repetitions of the views expressed by the Framers

The vast bult of the Ratification sources are the newspaper articles and reports of campaign speeches. With the exception of Pennsylvania, Dean James Bond states, the State legislatures kept no records of their debates. The legislative debate in Pennsylvania, he comments, 'reads like a reprise of the six month campaign that preceded it'. There are a few of the Governor's messages, but 'most are quite general'. In the three states on which Bond concentrated, he observes that debate 'did not focus exclusively or even primarily on the first section of the 14th Amendment. The principal issue in those states was control of the national government'. Republicans feared that Democrats would wrest control of the House because with emancipation Southern representation would no longer be limited to three-fifths of the blacks as Article I(3) provided.
(snip)
Speaking in Chicago in August 1866, Senator Trumbull, who had piloted the Bill through the Senate, 'clearly and unhesitatingly declared of the Amendment to be 'a reiteration of the rights as set forth in the Civil Rightst Bill", which did not include any reference to the Bill of Rights. In Indiana, Senator Lane 'affirmed Trumbull's statement concerning the first section'; and Senator Sherman 'endorsed' those views in a speech on September 29,1866. Senator Poland spoke to the same effect in November 1866--Raoul Burger, The Fourteenth Amendment and the Bill of Rights, pp37-42

The Fourteenth Amendment and the Bill of Rights--PDF File

I would suggest the whole book. It is a PDF file but a good discussion of the Fourteenth and the Bill of Rights. BTW, Poland and Trumbull are two of the men sourced in the article you provided RKV. Seems they didn't mean exactly what your source would have us believe...

What do you gain by allowing a State to infringe on your RKBA's? -- It's a simple question.

The framers of the 14th made their intent clear in the 1868 debates before ratification. They wanted ex-slaves to have the RKBA's.

'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. --"

If that was the case the Bill of Rights would have applied from the beginning.

They did.
The 'Barron' opinion, saying states had the power to ignore the Constitution, was an attempt by Justice Marshall to cool down the Souths insurrectional fervor. It worked for awhile; -- then was 'corrected' after the war by the 14th.

And that is clearly not the case. I would suggest you look to the Amendments that Madison offered and were denied. Specifically the one that stated the Bill of Rights would apply to the states. As that Amendment did not pass, the Framers understood the Bill of Rights were to apply only to the relationship between the citizens of the respective states and the national government.

That's what some States wanted to believe. Because of the threat of civil war, the point that the BOR's applied was not pressed.

The 14th was passed to correct that 'misunderstanding', but then again reconstruction realities stopped it from being applied. Jim Crow ruled.

Now its time to demand that ALL levels of government, fed/state/local, comply with our RKBA's and our BOR's.

The 'Barron' opinion, saying states had the power to ignore the Constitution, was an attempt by Justice Marshall to cool down the Souths insurrectional fervor. It worked for awhile; -- then was 'corrected' after the war by the 14th.

Well....no it wasn't. Considering that incorporation of the Bill of Rights was denied by SCOTUS throughout the 1920s you're going to have a time on your hands proving that. For your argument to have any validity, one would have to say that the Justices from 1866 until 1897 had no understanding of the rule of law, had not read original discussions of the framers of the 14th, and were in effect simpletons. Granted some of those appointed by the 16th President were simpletons (at least political cronies of the 16th President), most of them were not.

That's what some States wanted to believe. Because of the threat of civil war, the point that the BOR's applied was not pressed.

LOL, no that's what the Supreme Court of these United States reaffirmed over and over and yes, over again. Multiple times before and after the passage of the 14th Amendment. I would suggest also you look to #186. The book provided covers the ratification debates, among other things.

You need to read the actual Congressional ratification debates from 1868, some of which are quoted here:

Intent of the Fourteenth Amendment was to Protect All Rights
Address:http://www.constitution.org/col/intent_14th.htm

"-- The first draft of the proposed Fourteenth Amendment was debated in the House for three days, beginning on February 27, 1866.
Bingham, its author, argued on its behalf that previously "this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States."[28]

Representative Robert Hale of New York saw no need for the amendment, because he interpreted the existing Bill of Rights to bind not just Congress but also the States:
"Now, what are these amendments to the Constitution, numbered from one to ten, one of which is the fifth article in question? . . . They constitute the bill of rights, a bill of rights for the protection of the citizen, and defining and limiting the power of Federal and State legislation."[29]

Bingham responded that the proposed amendment would "arm the Congress ... with the power to enforce this bill of rights as it stands in the Constitution today."[30]

Representative Frederick E. Woodbridge of Vermont characterized the sweep of the proposed Fourteenth Amendment as empowering Congress to protect "the natural rights which necessarily pertain to citizenship."[31]

In debate on February 28 on the representation of the Southern States in Congress, Senator James Nye of Nevada opined that the Bill of Rights already applied to the States, and that Congress has power to enforce it against the States.
He stated:

In the enumeration of natural and personal rights to be protected, the framers of the Constitution apparently specified everything they could think of — "life," "liberty," "property," "freedom of speech," "freedom of the press," "freedom in the exercise of religion," "security of person," &c.; and then, lest something essential in the specifications should have been overlooked, it was provided in the ninth amendment that "the enumeration in the Constitution of certain rights should not be construed to deny or disparage other rights not enumerated."
... All these rights are established by the fundamental law.

Will it be contended, sir, at this day, that any State has the power to subvert or impair the natural and personal rights of the citizen?

Referring to blacks, Senator Nye continued:

"As citizens of the United States they have equal right to protection, and to keep and bear arms for self-defense."[32]

Similarly, Senator Stewart repeated that the federal Constitution is "the vital, sovereign, and controlling part of the fundamental law of every State," and although the states may repeat parts of it in their own bills of rights, "no State can adopt anything in a State constitution in conflict."

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Read the actual words of the 14th's framers, billbears, and learn..

The 14th amendment was proposed by a special Joint Committee on Reconstruction that was created by resolutions in the House and Senate in 1865. They made several recommendations for Constitutional amendments that resulted in the adoption of amendments 13-15. In early 1866, a subcommittee was formed, made up of Congressmen Bingham, Stevens and Conkling and Senators Howard and Fessenden. Rep. Bingham presented a proposed amendment that became the 14th amendment. It was approved by the committee and sent to the House for consideration, along with an explanation of its purpose from Bingham. In that explanation, and in the ensuing debate in both chambers, it was made quite clear that the privileges and immunities clause covered, at the very least, the guarantees contained in the Bill of Rights. When he presented the amendment to the House for debate, Bingham noted its necessity by pointing out that up to that point, "these great provisions of the Constitution, this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States." He proposed to change that by giving the Federal government the power to enforce the bill of rights against state action with his amendment, and he consistently invoked the bill of rights as representing the privileges and immunities to which he referred:

"Is the Bill of Rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced...'Mr. Speaker, it appears to me that this very provision of the bill of rights brought in question this day, upon this trial before the House, more than any other provision of the Constitution, makes that unity of government which constitutes us one people, by which and through which American nationality came to be, and only by the enforcement of which can American nationality continue to be...'What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day?...Gentlemen who oppose this amendment oppose the grant of power to enforce the bill of rights."

He further noted, in later debate over whether the amendment was required to enforce the Civil Rights Bill that was making its way through Congress, "I have advocated here an amendment which would arm Congress with the power to compel obedience to the oath, and punish all violations by State officers of the bill of rights, but leaving those officers to discharge the duties enjoined upon them as citizens of the United States by that oath and by that Constitution."

http://www.stcynic.com/blog/archives/2005/05/the_historical.php

We've already played that argument don. Good to see you didn't bother to read the book (I doubt you even clicked on the link). I would suggest you do a little research into the author of that board. To say his politics are questionable is being kind.

FYI, at least three of the statements you have provided were stated by men whose speeches to the citizens of their respective states were contrary to their views in Congress. But again, don't let facts get in your way. I would suggest you look to the primary sources of the day (i.e. newspapers and speeches within the states). The framers of the 14th Amendment never intended for the Amendment to apply to the northern states, therefore they accepted the 14th would not incorporate the Bill of Rights nationwide

Come now, I expected better. You resorted to quoting blogs as arguments? Especially from a blogger that was a stand up comic for four years and would like to be emperor? Shall I ask my cats what they think of the 14th Amendment? Granted they can't really talk but I imagine their opinion is about as equal.

If you choose to ignore decades of precedence clearly stating the fact that SCOTUS did not recognize this incorporation theory and the fact some of the quotes from your other editorial provided came from men that reversed their opinion once in their home states, that's not my problem. The issue is the 14th Amendment was clearly to be applied selectively, namely Radical Republicans giving blacks certain civil rights, and nothing else. To state otherwise is being disingenuous.

Absolutely!

The commerce clause of the Constitution is what allows Congress to regulate interstate commerce "among the serveral states." It's also the bit in the Constitution that Congress and the courts have abused over the years to allow Congress to meddle in things that they don't have Constitutional powers to meddle in. They come up with the wildest excuse relating their laws to interstate commerce.

Justice Thomas believes in strict adherence to the commerce clause, i.e. it doesn't apply to anything other than commerce between the states.

Mark

you have no problem with the concept that Congress may prohibit some purely intrastate activity

Airspace is interstate, because flying in it interferes with other states traffic that departed perhaps only minutes apart. The idea that airspace is "local" is silly.

While the idea that what I do in my house is "interstate" is silly.

it does affect their interstate efforts if everyone is allowed to grow pot and distribute it locally.

Who said anything about "distributing" it. I was talking only about what goes on in one's house.

Again, lest anyone get the wrong idea, I don't have anything to do with (illegal) drugs of any kind. My point is merely the hypocrisy of SC rulings/

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