Constitutional right to privacy a figment of imagination

Houston Chronicle ^ | January 15, 2005 | JUDGE HAROLD R. DEMOSS JR.

[Sacajaweau]

There is nothing "Private" about abortion.

There are nurses, doctors, counselors, secretaries, pharmacists, FATHERS, HUSBANDS, RELATIVES, whoever drives you to the clinic and the government WHO FUNDS THESE CLINICS AND obtains the statistical information on abortion.

PRIVATE....Yeh, right.

[Sacajaweau]

The Federal Government wanted to make sure that New States coming in would have Basic Rights.

The Original States all wrote (as they were instructed) their Constitutions PRIOR TO the Federal Constitution. They generally contain all those same rights and in fact, in some cases, the rights are "better stated".

You can go to Avalon.com to read most of them.

[Tarkin]

What you've written about Justice Black and Nationalization of the BoR is true. Regardless however of the fact whether we accept the "complete incorporation doctrine" or the "selective incororation doctrine" prior to the adoption of the XIV Amendment the first Eight Amendments undoubtely applied only to the federal government. :-)

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.

Not entirely true. The Fifth Amendment’s requirement of a grand jury indictment applies to the states but only when a person could be sentenced to a significant time in prison (Duncan v. Louisiana). Also the extension of Sixth Amendment's implicit guarantee that convictions must be obtained only from unanimous twelve-member juries was explicitly rejected by the SCOTUS in Burch v. Louisaina.

[Conservative Goddess]

Anything coming out of Louisiana is suspect........;-)!!

[Tarkin]

The Federal Government wanted to make sure that New States coming in would have Basic Rights.

It probably did, but it doesn't change the fact that at least prior to the adoption of the XIV Amdt. the BoR applied only to the federal government. :-)

[jwalsh07]

The DOI is the definitive statement documenting the reasons for the founding the United States. Disgarding it in favor of judicial interpretations by various courts is not something that I will favor. At all.

The federalist and anti federalist papers have no ability to trump the plain text of the US Constitution for reasons which should be obvious to all. They were never ratifed as the Law of the Land. In contrast the DOI has at it's bottom the signatures of the founding fathers of this nation.

Courts can no more grant rights than the state can. Your position when the fat is whittled away is this:

Only by an incorporation of the courts or by an act of Congress can the RTKABA be granted to all the people. (And btw guys, just who are the people once again?). The granting of rights by courts or the state is antithetical to the purpose described in the DOI.

So besides the people question what exactly are the inalienabale rights described in the text of the DOI and who or what grants them?

[Tarkin]

Anything coming out of Louisiana is suspect........;-)!!

Yeah, especially sens. Landrieu and Long (it is said that he was probably the only person who could easily drink as much as our favorite senator from Taxachussets) :-)

[jwalsh07]

I don't know.

I 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.

States do not have the power to infringe inalienable rights. Never had that power. Read the DOI, it is an important document, much more important than Marshalls opinion in Barron, his power grab in Marbury or Blacks opinion on incorporation doctrine.

Now a question for you both. Could a state execute citizens for no reason at all if they so choose after ratification of the Constitution and the Bill of Rights? And if not, why not?

[Conservative Goddess]

And once again.......the US Constitution applies only to the actions of the Feds.....not to the states. Read the Federalist Papers and the Anti-Federalist Papers to understand the debate.....and the relative merits of a strong Federal Government, over a weak Federal Government...and the rights and proper realms of each---aka Federalism. I was a second year law student when I realized that the Constitution didn't protect us from all government over-reaching....and I was as shocked and dismayed as I'm sure you now are. Read Federalist 84. It is directly on point.

[billbears]

Everything else is basically fluff.

I think there is more danger of those powers being abused by the State Governments than by the Government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no State shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every Government should be disarmed of powers which trench upon those particular rights. I know, in some of the State constitutions, the power of the Government is controlled by such a declaration; but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the State Governments are as liable to attack the invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against.--James Madison, 1789

Madison's suggestion to incorporate the Bill of Rights to governments of the separate and sovereign states was denied. Contrary to wishful thinking, once this Amendment was denied Madison, the Bill of Rights was never intended to apply to the states.

[jwalsh07]

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Who is "we the people" and what are the "United States of America"?

[jwalsh07]

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

---

What rights are enumerated in the Constitution?

[jwalsh07]

And once again.......the US Constitution applies only to the actions of the Feds.....not to the states

Clearly wrong. I suggest you stop reading the federalist papers ans start reading the constitution. Start with Article 1 Section 10.

[TChris]

This seems fairly clear to me. If this isn't a guarantee of privacy, what is?

It is precisely what it says it is: a prohibition of unreasonable searches and seizures by the government. The word "privacy" has a much larger definition than does the phrase "unreasonable searches and seizures".

[billbears]

Rights of the citizens of the respective states to their federal government. The 9th Amendment states that even though there are certain rights granted to the citizenry in their relationship to the federal government this does not limit them to unnamed rights as it pertains to the federal government solely.

Madison himself saw this, and therefore to him, also saw the need incorporating the Bill of Rights to the states. However this Amendment was refused. Why would such an Amendment be needed if it was inherently understood the Bill of Rights applied to the states?

[Conservative Goddess]

From Federalist 84:

"....It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. ``WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.'' Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that ``the liberty of the press shall be inviolably preserved''? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.3 And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.

There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing...."

[Tarkin]

The Federal Constitution is the Supreme Law of the Land, not the DOI (Art. 6 Par. 2). Among other things it prohibits the federal government from certain actions, it also prohibits the states from certain actions. Nevertheless, all general clauses of the Constitution apply only to the fedgov. Unless some part of the Constitution expressly prohibits the states from doing something (or directly gives this power to the federal government) they may do it. Compare:

"all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution" (applicable to both the United States and the several States - Art. 6, Par. 3)

with

"no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" (applicable only to the feds - Art. 6, Par. 3).

Compare "No bill of attainder or ex post facto Law shall be passed" (Art. 1, Sect. 9, applies only to the federal government)

with

"No State shall (...) pass any Bill of Attainder," (Art. 1, Sect. 10, applies only to the states).

Accordingly compare "No person shall (...) be deprived of life, liberty, or property, without due process of law" (V Amdt - applies only to the fedgov),

with

"(...) nor shall any State deprive any person of life, liberty, or property, without due process of law" (XIV Amdt - applies only to the states).

The general language in the Constitution applies to the federal government, specific language when it is explicitly says so applies to the states. Accordingly the BoR provided "security against the apprehended encroachments of the general government—not against those of local governments."

[Tarkin]

Not necessarily. After all an unreasonable search and seizure may be done publicly :-).

[Badray]

Believe it or not, you are not all knowing.

I said PROVIDE. I meant PROVIDE.

The so called rights of safety or health care or a car that the other poster alluded to, are not rights because they require someone else to pay for them. They must be PROVIDED. It can't be a right if it requires someone else to give up their rights because we all enjoy equal rights.

OTOH, for those of you who misunderstood that I was only making the point above, yes, PROTECTING our rights is one of the few legitimate roles of government and yes, that is costly but justified.

I have free speech. I have the right to keep and bear arms. I have the right to exercise my religion freely. These are mine without cost to you or anyone else. You are not required to allow me to use your soapbox or arm me, build church for me. There is no cost to you for me to exercise a true right.

[rollo tomasi]

If the right to privacy exist in the Constitution then tell me why State, local, Federal governments need to know everything I sell (Property), what I earn, the square feet of the place I live in, my investments, tips, etc...

All these invasions of privacy for tax purposes would clash with "the right to privacy".