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.

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.

Weird theory, throughly disputed by this article from Yale Law Review:

ON MISREADING JOHN BINGHAM
Address:http://www.constitution.org/lrev/aynes_14th.htm

Don't let facts get in your way, bill.

Still posting from Constitution.org are you? Surely you can find multiple sites supporting your view can't you?

Why should I bother when Tolands site gives access to multiple documents?

Again I would suggest you look at the bio of the webmaster. Anything coming from his site is about as tainted as Ed Sebesta and the Temple of Democracy.

Weird tar brush tactic you're using bill. There is nothing in Tolands background that invalidates Yale Law articles..

Hey, you're not Whiskey Papa are you?

Same sad tactic.. When you can't win your debate with logic, try to discredit your opponent. Is Whiskey Papa somehow discreditable?

robertpaulsen opines:

A mere nine months after the 14th was ratified, the USSC ruled in Twitchell v. Pennsylvania that the Bill of Rights restricted only the federal government, not the states. Nobody mentioned the 14th Amendment.

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Careful. You'll upset the emanation of a penumbra fans.
219 Mojave

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Nah. Cognitive dissonance. They'll just say the court was wrong.
224 paulsen

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You two are so 'cute' when you can't argue the points directly..

See #83 for my rebuttal to the Twitchell opinion.

The Federalists strongly opposed the specific enumeration of ANY rights, as they argued (correctly in my view) that the specific enumeration of any rights would provide men disposed to usurp a plausible pretense to argue that unenumerated rights were held not by the people, but by the feds. The Federalists went so far as to suggest that a specific enumeration of rights would even be DANGEROUS, given that an enumeration of rights was "entirely foreign to the nature of the thing." Meaning, a document that simply specifies the parameters within which the government can act, should not be charged with the absurdity of guarding against that which was never granted. How right they were.

Federalist No. 84 is directly on point: http://patriotpost.us/fedpapers/fed_84.html

The Anti-Federalists refused to ratify the proposed Constitution without a specific enumeration. Ultimately the Federalists, in exchange for the support of the Anti-Federalists, agreed to include a BOR at their earliest opportunity. The first proposal for a BOR came a year or two after the Constitution was ratified, and the letter in which the proposal was made, included this:

"...It cannot be a secret to the gentlemen in this house, that, notwithstanding the ratification of this system of government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents, their patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who as present feel much inclined to join their support to the cause of federalism, if they were satisfied in this one point: We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution. The acquiescence which our fellow citizens shew under the government, calls upon us for a like return of moderation...."

The full letter, including the initial proposal for the BOR, can be read here: http://patriotpost.us/histdocs/madamend.htm

Griswold and Roe represent absolute LOWS in Constitutional Law....because that which passed for reason or rationale in those cases completely ignored the inherent, unalienable, God-given, privacy right of the people.

Provisions that applied exclusively to the federal government.

Not really. If that where the case then no law or or bill or any act engaged in or created by the Federal Government would be legal or binding unless approved of by a majority of votes by the people of each individual state.

By ratifying the constitution they agreed that those rights listed therein as "national rights" that belong to the individual people who are citizens of that nation.

That was the whole purpose of the ratification procedure. A state's ratification representative could not/would not agree that you had a "right" on a national scale and then deny you that right within the state.

Some on here confuse a "law" and a "right".

A law is something that you do or don't do.

A right is something that you have, something you possess.

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.

Let's keep it simple and discuss one amendment, that being the second. I understand that the BOR's limits the federal government but emphatically disagree with those who think that is all it does.

Here is the text of the second:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

The operative clause is "the right of the people to keep and bear arms, shall not be infringed."

The text clearly acknowledges an inalienable right of the people. So who exactly are the people? And what exactly is a right? According to the founders the people are the entire body of people. And if they aren't then I'd like somebody to explain to me just who the people are. And for the original intent of rights we should look to the DOI, a document signed by the body of the founders as a whole. The rights they speak of are inalienable rights meaning that the state can neither give nor take away. The second falls into that category which is why they saw nor reason to use the words "Congress shall not" or 'states shall not' in the text.

Second, the 2A contains a justifying clause but that justifying clause doesn't specify who shall not infringe this particular God given right. Moreover the Militia Act of 1792, never held to be unconstitutional, defines "the people" as just about the entire body of "free people". But the justifying clause can not impact the operative clause nor can any justification be offered to infringe on an inalienable right.

So yes there was a lot of politicking going on to get the votes to ratify but that is neither here nor there. The text is quite clear and there is no need to have courts interpret 'intent'. But if there was we should first look to the DOI for intent and the intent of the founders as a body to acknowledge God given rights which states could not infringe on.

Everything else is basically fluff.

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:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

The 1A specifically limits the powers of the Federal Government but does nolikeweise limit the states.

The text of the 2A and most others does not narrowly limit powers but widely limits powers of the state, including the several states and the fedguv.

Why doesn't the 2A read:

'A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed by Congress.'

As a gun-lover, gun-owner, militant defender of the right of self-defense myself....I understand where you are coming from......but second amendment is mere fluff when you read the body of the Constitution. NOWHERE in the body of the Constitution did we cede our unalienable, God-given right of self-defense to the feds.

Moreover, the Second Amendment only applies to the feds.....not the states. It is one of only a select few amendments that have not been "incorporated" via the 14th Amendment.

While I was visiting Portland Oregon, I visited Powell's books http://www.powells.com/ Just this side of heaven for a bibliophile.......and I found and bought: The Second Amemdment Primer by Les Adams. Here's an Amazon Link: http://www.amazon.com/gp/product/B0006QSTH4/qid=1137432686/sr=8-1/ref=pd_bbs_1/102-2022843-3591364?n=507846&s=books&v=glance

It's a tremendous little book. I highly recommend it.

Why doesn't the 2A read: 'A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed by Congress.'

I don't know. But the original understanding of the Constitution was that general language (as used in the 2nd Amendment) applied only to the fedgov. As Chief Justice Marshall wrote in Barron: "in every inhibition intended to act on state power, words are employed, which directly express that intent". You're simply reading it the wrong way. I'll post it for the last time.

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

The counsel for the plaintiff in error insists, that the constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their general government. It support of this argument he relies on the inhibitions contained in the tenth section of the first article. We think, that section affords a strong, if not a conclusive, argument in support of the opinion already indicated by the court. The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the general government. Some of them use language applicable only to congress; others are expressed in general terms.(...)

If the original constitution, in the ninth and tenth sections of the first article, draws this plain and in every inhibition intended to act on state power, words are employed, which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course, in framing the amendments, before that departure can be assumed. We search in vain for that reason.(...)

Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those unvaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government-not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.

I wrote this for another purpose......and hopefully it will clarify the issue. Here's a snip-it:

"...The Supreme Court, specifically Justice Black, in Adamson v. California, 332 U.S. 46 (1947), said the following: “My study of the historical events that culminated in the Fourteenth Amendment [Privileges and Immunities Clause], an the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment’s first section, separately, and as a whole, were intended to accomplish was to the make the Bill of Rights applicable to the states.”

Ineloquently phrased but well-meaning, Justice Black’s “total incorporation” theory has never commanded a majority of the Court. A string of cases, spanning from 1897 through 1971, have selectively incorporated some of the first eight amendments via the 14th Amendment. As of this writing, only the Second Amendment, the Third Amendment, the Fifth Amendment’s requirement of a grand jury indictment, and the Seventh Amendment, have not been incorporated. As a result, according to the view of the Supreme Court, the Second Amendment does not apply to the states....."

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