Posted on 01/15/2006 8:59:46 AM PST by Dog Gone
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.
The court's choice of the word "penumbra" and the phrase "penumbras of the
Bill of Rights" in these opinions is revealing.
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.
There are two ways to amend a document like the Constitution:
(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 federal income tax has eviscerated the 4th Amendment. check out www.fairtax.org. It's the only plan to eliminate the IRS and restore our financial privacy.
I am all for that.
You're of course right. Article 1 Section 10 limits the powers of the states but only because it EXPLICITLY says that "No state shall enter any Treaty... etc. etc." it even repeats lots of provisions of Section 9 even though the language used in Section 9 is sometimes as general as it gets. F.ex. "No bill of attainder or ex post facto Law shall be passed.". Yet despite this very broad language (it does not say "Congress shall pass no bill of attainder or ex post facto law" it says "NO LAW") exactly the same prohibitions are repeated in Section 10: "No State shall (...) pass any Bill of Attainder, ex post facto Law". WHY? Because GENERAL language applies to the federal government. Whenever the Constitution restricts the power of the states it explicitly mentions that the restriction applies to the states.
...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, 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,
What's with the "ineloquently phrased" bit? Justice Black make a perfectly understandable, factual point. -- If you study the actual Congressional arguments made by the 14ths framers, they intended to make "the Bill of Rights applicable to the states".
Justice Black's "total incorporation" theory has never commanded a majority of the Court.
His factual comment is not a 'theory'.. Here's another fact. -- The political majority in the USA has never supported individual rights as outlined in our Constitution as Amended. -- Obviously, a USSC majority mirrors the views of the political majority that appoints them.
A string of cases, spanning from 1897 through 1971, have selectively incorporated some of the first eight amendments via the 14th Amendment.
The USSC court loves this undelegated power to selectively 'rule' on what rights are Constitutional..
Could you two point out where in the Constitution they derived such a power? -- Can ANYone?
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.....
My, isn't that a nice view. -- Why one earth would anyone support that view, -- who actually values their own RKBA's?
Why give a State the power to infringe?
Unenumerated inalienable rights are retained by the people.
However, it's up to state laws to protect those unenumerated inalienable rights and not the Federal Government.
What better way....?
bttt
Liberals and libertarians think they can. They are wrong.
Your opinion is totally unsupported by any reasonable reading of our Constitution.
Can you share with us how you arrived at this rather remarkable conclusion?
A right is something you possess only if it is guaranteed by a proper authority.
LOL. Jumping up and down, saying that the BOR applies to the states doesn't make it so. I'd love to believe it......but the total incorporation theory has never commanded a majority of the court. Read Adamson v. California for yourself.....here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=332&page=46
BARRON v. CITY OF BALTIMORE, 32 U.S. 243 (1833)
"These restrictions are brought together in the same section, and are by express words applied to the states. (...) In every inhibition intended to act on state power, words are employed, which directly express that intent"
Apart from Barron also read my post 257. It seems to me that my opinion is actually supported by reasonable reading of the Federal Constitution.
He mentions the fourth amendment several times in the article and explains the thought processes behind his conclusions. Perhaps a cursory glance at the article will be enlightening.
BUT.... what does this have to do with a State's power to declare through the legislative process or through referendum that contraceptives or abortion are illegal? I say States have this right and the Federal Government has no business saying they don't on privacy grounds. Since there were no warrant-less searches taking place, there were no privacy grounds for their decision.
TF
The USSC court loves this undelegated power to selectively 'rule' on what rights are Constitutional..
Could you two point out where in the Constitution they derived such a power? -- Can ANYone?
LOL. Jumping up and down,
Who's 'laughing' but you? Who's 'jumping' to erroneous conclusions, - but you? Silly comment.
saying that the BOR applies to the states doesn't make it so.
The Constitution says exactly that in Article VI.. Just another thing about it you can 'LOL' about, no doubt.
I'd love to believe it......but the total incorporation theory has never commanded a majority of the court.
Black's factual statement was not a 'theory'.
And the US Constitution 'commands', not a Court's socalled 'incorporation doctrine' .
Read Adamson v. California for yourself.....here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=332&page=46
I've read it, and it doesn't prove your point.
No, if it is conditional or dependent on the actions or whims of others and you don't possess it, it is not a right.
It is a privilege, something that is granted to certain individuals or groups on a conditional basis.
This is what is wrong. We have stood by and let our government and these demi-god judges turn what were rights into privileges.
What about the right to and of private property?
Whenever the Constitution restricts the power of the states it explicitly mentions that the restriction applies to the states.
Your opinion is totally unsupported by any reasonable reading of our Constitution.
Can you share with us how you arrived at this rather remarkable conclusion?
Ehhh, can you show a single situation in which that is not the case? BARRON v. CITY OF BALTIMORE, 32 U.S. 243 (1833)
"These restrictions are brought together in the same section, and are by express words applied to the states. (...) In every inhibition intended to act on state power, words are employed, which directly express that intent"
Weird reply.. What exactly in Barron do you imagine supports your theory that "Whenever the Constitution restricts the power of the states it explicitly mentions that the restriction applies to the states"?
Apart from Barron also read my post 257. It seems to me that my opinion is actually supported by reasonable reading of the Federal Constitution.
The only thing that remotely applies is your pointing out that both Sections 9 and 10 mention Bills of Attainder & ex post facto laws.
Article I was written before a Bill of Rights was deemed necessary, thus it is reasonable to assume that the framers though these two restrictions important enough to list in both Sections.
-- Is it your point that they should have explained that bit of reasoning when writing the BOR's to spare us confusion?
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