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.

I got as far as the 2nd sentence:

"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."

Any idiot that doesn't understand that our rights do not have to be enumerated to exist is not worthy to sit in judgment of anything other than perhaps 'the best of breed' at the county fair.

I'm in full agreement. One of the more insidious things activist courts have led to is the willingness of cowardly legislators to abdicate their political responsibilities on hot button issues like abortion to those courts and then use the courts' decisions for cover. It also has led to the emasculation of the political process by the electorate. The idea of the Constitution as a mechanism for HOW to govern[the three branches] has been largely lost. Elitists prefer activisdt courts. So do craven politicians.

That being said, I'm not sure that emotionally politicized as it has become [in no small measure due to the way it was achieved, via the courts], abortion can ever be "non-fedreralized" again. Note the problems with parental notification and consent for abortions of minors where non-parental adults transport minor girls to abortion friendly states to circumvent either criminal charges or parental responsibilty for the impregnator.

I would urge you to reread the 4th Amendment to understand what the Founders meant by a 'reasonable' search.

The fact that some cop or DA thinks it is reasonable does not make it so. Complying with the requirements of the 4th -- to obtain a warrant based on a sworn affidavit and probable cause and detailing the search and what is to be seized, is what makes it reasonable. Any search not complying to that is unreasonable

I'm sorry to say this but your understanding of the Constitution is as bad as that of the judge who wrote that article.

The Constitution and the BoR guarantee nothing.

The Constitution tells the government their duties and the limits of their authority. The Bill of Rights isn't so much a listing or declaration of rights as much as it is a reminder to those in government what they must not do and it is a partial list at best.

So, if I understand you correctly, if someone commits an evil act in private I must surrender my right to be left alone by the government?

Look, I want abortion ended too. Roe v Wade was a horrible twisting of the language and our rights to justify an incredible evil. No one has the right to rape, rob, defraud, murder, or abort another just because it is done in private. But that doesn't mean that we do not have a legitimate right to privacy.

In reversing Roe v Wade, let's attack it honestly and not disparage our natural right to be left alone by government.

You are partially right: one of us does need to do some more reading. Clearly the amendment contemplates searches with and without warrants; and, in fact, that is what we see in operation in our legal system today. For example, the police search without a warrant when there are exigent circumstances. An example was the police immediately entering OJ Simpson's property when they found blood outside. No warrant was required as, under the circumstances, it was reasonable to enter private property to stop any crime which the blood indicated might just then be in progress. Another example: If you are traveling in the peoples republic of California, are stopped by a law enforcement officer and he/she asks you if you have a gun in the car and you tell him/her yes, you and your car get searched --- no warrant required as such a search is deemed "reasonable" for the safety of the officer.

In one respect you are correct. Reasonable cause is not for the DA or law enforcement officer to decide. They prepare affidavits which are submitted to judges for scrutiny and, upon agreement, the issuance of the warrant. Unhappily, there are far too many instances where the legal scrutiny was cursory and the LEOs burst into the wrong location or entered with a totally inappropriate degree of force. But, that's another issue...

We have the right to do any thing we please that is not specifically illegal!

That is the only line in any of your posts that I have to quibble about and I think that this just may have been typed in haste and that we actually do agree.

Congress can make just about anything illegal but that doesn't make it right and I don't think that is what you meant. Campaign Finance Reform comes to mind.

Just a quick summation to eliminate confusion, DG.

Our rights are inherent by virtue of our creation. They impose no duty or cost upon another to provide them for us and they cannot be used to impinge upon or deny the rights of others.

That's why there can be no such thing as a right to a car or health care or safety. Each of those 'rights' would impose a cost or a duty upon others. Abortion cannot be a 'right' either because it denies the most basic of all rights of another -- the right to life.

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.

So which according to you which amendments were meant to apply universally, that is to protect the individual citizens against both state and federal government? Because I've yet to hear about a case in which a court directly extended any of the first VIII amendments to the states.

Are there any individual rights enumerated in the Bill of Rights?

Yes, actually all of the first VIII Amendments contain "individual rights" but without the XIV Amendment (and the incorporation doctrine) they only protect you against the federal government.As to the IX Amendment:

Griswold v. Connecticut, 381 U.S. 479, 529-530, Stewart, J., dissenting

"The IX Amendment like its companion the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered," United States v. Darby, 312 U.S. 100, 124 , was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annual a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder."

To construe current day rulings to have anything to do with the Framer's intent is folly.

While 'exigent circumstances' -- a woman screaming or massive amounts of blood, etc. -- can allow the police to enter a home to see if a crime is being, or has been committed, they do not allow a search of your desk or safe. That still requires a warrant.

A warrant separates reasonable and unreasonable searches, current rulings to the contrary notwithstanding.

As a side issue, since the SCOTUS has ruled more than once that the police have no duty to protect us as individuals (such as the screaming woman inside the house) can they really have to power to enter without a warrant? I'm not saying that a good cop wouldn't want to help or wouldn't risk censure for kicking down the door if he thought someone needed help. But just as rights have concommitant responsibilities, shouldn't certain powers flow from a specified duty? If the duty is denied, can the power exist?

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

This type of thinking is what is wrong with our country. The American people have been brainwashed to the point that they think the Constitution is a useless piece of paper and the only rights 300 million people have are those that 12 elitist agenda driven politicians in black robes say we have.

They have convinced the majority of us that we are too dumb to read and comprehend a document and the history around it, that has been around over two hundred years.

The Bill of Rights was made part of the Constitution and the Constitution became the law of the land .

Every state that ratified it agreed to and accepted the provisions contained within it.

Just because some guy in robe hasn't pronounced his blessing on all of them doesn't mean that they don't exist.

The rights are there even though we have let them be,ignored,abused, twisted, and perverted for political gain and personal agendas.

As far as the right to bear arms is concerned most of the sates also have it in some form in their state constitutions.

Also BTW from looking at this page it seems we have been brainwashed to think that abortion is only a privacy issue.

For some of us it is not. For some of us it is about the right to life of an innocent human being.

If someone's right to swing their fist ends a another's nose then why do we allow a baby in the moment of birth to have it's brain punctured so people can make money off their body parts and their mother won't be inconvenienced.

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