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.
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?
CG writes:
The states were to be sovereign......
Of course they are sovereign, but they agreed to to support our Constitution as the supreme "Law of the Land" -- " any Thing in the Constitution or Laws of any State to the Contrary, notwithstanding."
From Federalist 40:
"...Will it be said that the FUNDAMENTAL PRINCIPLES of the Confederation were not within the purview of the convention, and ought not to have been varied? I ask, What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed......."
Federalist 44, found here: http://patriotpost.us/fedpapers/fed_44.html listed the specific areas where the Feds intended to limit states rights.
"Intended" -- The federalist papers are not definitive of our actual Constitution as written.
But for those specifically enumerated areas, the original Framers had no intent to intrude on states rights.
So you claim. Article VI differs.
That the Framers of the 14th Amendment DID intend to intrude on states rights has never been fully recognized by the Supreme Court.
States have no rights. They have limited powers.
Okie dokie....ROFLMAO.
I guess all that time and money we spent going to law school Tarkin, was wasted. Who knew we could come to Free Republic and get the definitive answer to questions of Constitutional Law? All this fuss over the Supreme Court nominees could be avoided....just send all questions of Constitutional interpretation to Don. LOL.
Several reasons, the most prominent being that most New England states had established religions. Now, why don't you try answering the questions I posed to you.
The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both. WIlliam Rawle of Pennsylvania in his View of the Constitution of the United States of America
Anybody figure out who "the people" are yet?
Indeed they did. And those established religions continued after the passage of the Constitution for several decades at least. Ergo, the Bill of Rights did not originally apply (specifically the First Amendment and by default the rest of the Amendments, exception being the 10th) to the separate and sovereign states.
His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.
Ultimately, McDonald contends that 13 "political societies" ratified the Constitution. Pace McDonald, James Ostrowski notes that the preamble to the constitution was changed from "We the people of the United States, viz. New Hampsire," etc., to simply "We the people of the United States" because it was not known in advance which states would ratify the document. (p 177, citing Judge Eugene Gary, "The Constitutional Right of Secession"). This would seem to pose a problem for McDonald’s "political society" argument. (Note: despite his view of the Articles of Confederation, McDonald criticizes Lincoln’s "nationalist" claim that the union is older than the states).
More seriously, Ostrowski notes that the text of the Constitution does not support the argument that "the people" ratified it:
the Constitution did not "emanate from the whole people." Leaving aside the preamble for the moment [Ostrowski’s argument against it appears above], the actual language of the texts of Articles VII and V is to the contrary:
The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same....Done in Convention by the Unanimous Consent of the States present.
The Constitution may be amended] when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths, thereof....
Since the Constitution was proposed by a convention called by the states, was ratified by the states, and can only be amended by the states, any notion that "the government proceeds directly from the people," that it is "of the people" and "by the people," or that it "emanates from the whole people" can only be described as metaphysical nonsense invented by those who view the states as a mere inconvenience on the path to creating an all-powerful central government. (176-77)
Anybody figure out who "the people" are yet?
The citizens of the separate and sovereign states. As the document was written before ratification, the writers did not know who would confirm the document. These are the same 'people' addressed in the Preamble to the Constitution
Before you shoot the messenger, remember that I'm simply telling you how the lower courts have decided. I can cite all the cases you want. If the U.S. Supreme Court ever rules on the second amendment, they will rely on the decisions of the lower federal courts to guide them.
Hey - you said it, not me.
But I do wonder sometimes what principles our law schools try to teach.. Is the object to learn about upholding Constitutional law, or is it how to work the system that ignores it?
Who knew we could come to Free Republic and get the definitive answer to questions of Constitutional Law?
Yep, - isn't it amazing that ordinary folks can understand the US Constitution just as well as trained 'professionals'? Who would have guessed?
All this fuss over the Supreme Court nominees could be avoided....just send all questions of Constitutional interpretation to Don. LOL.
You really think Constitutional interpretation plays a big part in Senators selecting nominees? How naive. You obviously know almost as much about politics as you do about Constitutional law..
Who said the DOI was the Supreme Law of the Land? It certainly wasn't me. Was it you? And BTW, the Supreme Law of the Land is a three pronged fork. Just for the record of course, I'm not condescending as you were.
Among other things it prohibits the federal government from certain actions, it also prohibits the states from certain actions.
True, one of those actions being the disarming of the "the people" by either entity without cause.
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.
This is false. The Constitution enumerates certain rights. One of those rights is the right to life. By your reckoning the States can line'em up against the wall and shoot'em for no cause. Where does the Constitution prohibit states from doing just that?
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."
You simply ignore "we the people" consistently. Once again, who are "the people" and what school taught you that the only entities discussed in the Constitution are the Federal Government and the States??????
Ergo not. The text of the 1A proscribed Congress from establishing religion, not the states. The text of the second amendment acknowledges a "right of the people". What people Bill?
Take your arguments to the Supreme Court and see just how far you get...........
LOL.
Of course you have the unalienable, God-given right to self-defense. Just not with a gun.
Society, not God, decides if they will protect your right to use a gun for self-defense.
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?
Paulsen:
don asmussen is the banned tpaine.
And, of course, -- when all else fails, you work to shut up your opponents by getting them banned.
Riiiiiight.
LOL This thread is laughable. Must be a full moon....'cause the moon-bats are out in full force.
With due process, the states and the federal government can infringe the hell out of inalienable rights.
You have the inalienable right to life. To liberty. One or both can be taken away from you by a court of law if you are found guilty of a crime.
But some parts of the Constitution expressly apply only to the states. Therefore, by the same reasoning process the others parts must not!
Here, "textural analysis"- which is what you're doing and is a valid method of examining the Constitution- just leads to contradictory result.
So we turn to the historical record which is unequivocal- the Bill of Rights was wanted and was passed solely to protect the people and states from the new federal government.
(This is just a restatement of Marshall's words in Barron, hoping it makes them clearer.)
It's hard now to understand that people trusted their states and demanded restrictions on this new government that would replace the Articles of Confederation almost as severe as we would demand today if the UN charter was to be strengthened, but that's what "the intent of the founders as a body" truly was.
"Neither you nor "don" can find in the ratification debates any call for limits on states to be in the BOR.
None- that's how clear the record is. There isn't a single example.
But the debates were full of calls to limit the federal government with a BOR.
Such as this one that delgate John Marshall heard Patrick Henry make at the Virginia convention:
"The officers of Congress may come upon you now, fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their numbers no man knows. They may, unless the general government be restrained by a bill of rights, or some similar restriction, go into your cellars and rooms, and search, ransack, and measure, every thing you eat, drink, and wear. They ought to be restrained Within proper bounds. With respect to the freedom of the press, I need say nothing; for it is hoped that the gentlemen who shall compose Congress will take care to infringe as little as possible the rights of human nature. This will result from their integrity. They should, from prudence, abstain from violating the rights of their constituents. They are not, however, expressly restrained. But whether they will intermeddle with that palladium of our liberties or not, I leave you to determine"
(I love the ironic twist Henry takes in the second paragraph. What an orator even at that late date in his career.)
Well that settles that! I mean it's obvious, some lower courts have ruled that the justification clause trumps the operative clause and we should sit down and be quiet. Come on Robert, the high court has ruled that a baby can be murdered when it is 6 inches from delivery but not after delivery. Courts have held all sorts of things that are balogna. When they do it isn't dispositive, it's just annoying.
Before you shoot the messenger, remember that I'm simply telling you how the lower courts have decided. I can cite all the cases you want. If the U.S. Supreme Court ever rules on the second amendment, they will rely on the decisions of the lower federal courts to guide them.
LOL, get real, they don't even rely on their own rulings to guide them.
This would really open up gun ownership, I'll tell you. You could no more take a person's gun, therefore, than you could take a person's life or liberty.
Think before you respond.
Take your arguments to the Supreme Court and see just how far you get........... LOL.
I wish we could take our 2nd Amendment arguments before the Court.. As you well know, they won't hear them..
Does that tell you anything, Goddess? Anything at all?
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