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.

You are a caricature and your argument is absurd.

You can petulantly repeat questions that are not dispositive of the issue...or you can read and open your mind...and learn something about Constitutional Law. "A fool takes no pleasure in understanding, but only in expressing his opinion." Proverbs 18:2

I suggest you start with a read of the Federalist Papers. Specifically 40, 44, and 84. I also suggest "The Citizens Second Amendment Primer" by Les Adams. And a read of Adamson v. California, found here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=332&invol=46 where the incorporation doctrine is discussed.

I chose commentary that is publicly available...not restricted on online databases. The REASON magazine piece was written by a professor of Law...and he came down in the middle of the discussion...not far right....not far left. Read it for a general understanding of the issue. Without that foundational level of knowledge, we cannot have anything remotely resembling an intelligent discussion.

Sorry, no good. The Constitution explicitly permitted treating slaves as less than a citizen. And Marshalls opinion in Barron is one opinion. I want the scores of opinions arguing that states could steal from, imprison and murder their citizens constitutionally.

I'd also like to see one statement from one founder arguing the same.

And I'd really love to know who owns the right to keep and bear arms in the second amendment. Are you arguing that that right belongs to the states?

Cite a case where the Second Amendment has been incorporated. You are a caricature.

it's from "REASON" magazine....do try, won't you? I know it will be difficult.......

Condescending little twerp, ain't you?

I've read jwalsh07's posts for a long time. I'll take his posts over your regurgitated tripe any day of the week. Just because SCOTUS doesn't properly interpret the 2nd doesn't mean jwalsh07's views on such are not legit. After all, the First starts out with "Congress shall pass no law" - which means the First was clearly meant only as a constraint on federal power. But I don't see any such language in the Second - instead, we see the most absolute language in the BOR - "the right of the people to keep and bear arms, shall not be infringed. "

Period. Your demand that a right be "incorporated" shows you are a statist as opposed to an originalist. Your approach makes our rights subject to the whim of nine justices instead of being properly treated as God-given rights enumerated by clear language. That is NOTHING to be proud of, let alone condescending to others about.

"Finally, would it have made sense, in the legal environment of the time, for the Framers to recognize a constitutional right possessed by a "Body of the People"? Professor Williams admits, as he must, that the right does not belong to the states. 14 He claims it does not belong to individuals. But if that's so, how can some intermediate entity -- an entity with no independent legal existence and no official spokespeople who could assert the right -- have a constitutionally guaranteed right that individual citizens do not have? I've seen no evidence that the Framers envisioned constitutional rights operating this way." Professor Eugene Volokh in an excerpt from The Amazing Vanishing Second Amendment.

That is a decision of the Fifth Circuit....becaue the Supreme Court did not render that decision, it does not answer the incorporation doctrine problem. We need a Supreme Court Decision to settle the matter.

Do you know anything at all about precedent vs. persuasive authority? The Emerson decision, while a step in the right direction, is meaningless to the present discussion. Do read a bit more before demonstrating your ignorance for all to see. Swing and a miss.

Without that foundational level of knowledge, we cannot have anything remotely resembling an intelligent discussion.

Ah, yes. We need over-educated law professors to screw up the most basic of words. "Shall not be infringed" really doesn't mean that if you are intellectual enough.

In case you haven't noticed, that is also how we got Roe v. Wade.

And Kelo.

And a continuing notion that the fedgov, through the Commerce Clause, can regulate activities that involve neither Commerce nor interstate movement.

I do agree - your position is the legal one. The accepted one. The mainstream one. The one that the annoited use to treat our god-given rights as something less than such, subject to the whims of men.

Well, screw that. Your mainstream has created the federal mess we live under today.

I'm trying to tell him the current state of the law. He simply refuses to acknowledge that the Supremes have declined to incorporate and apply the Second Amendment to the states. And if you bother to read Federalist 84, you will understand why all of this is tripe.

You're dense Ms Goddess. I'm not arguing from any authority but the Decalaration of Independence and the Constitution of the United States. I don't give a rats patooty what the jurists have held. At this point in my life I have lost almost all confidence in a judicary that subsumes the rights of citizens and the limited power of states to the federal government by judicial fiat.

No.....I never said that I was.......I own, I carry, I will enforce my rights.....but he is like a petulant child....who seems to believe that if he repeats the same false arguments...that the state of the law will change. It WILL NOT....until a case goes to the Supreme Court and the Second Amendment is incorporated.

Ah, so we just let the usuprpers have their way and hope they eventually get around to granting us rights that were God-given and enumerated by the Founders. Maybe if we send them candygrams they will rule in our favor.

You want to enforce your rights? Get the state in which you live to infringe your right to keep and bear arms. That will confer standing.....Then take your challenge to the Federal Courts....who will apply the existing law....tell you that the second amendmend has not been incorporated so the states can do what they want....when you lose in the circuit court of appeals, you can petition the Supremes. That's the way to change the law.

You cannot change the state of the law by posting tripe on Free Republic. Saying it is so doesn't make it so. Walsh doesn't seem to understand that.

Before I go I was unable to get answers to several questions. Maybe you can.

1. Who are " the people".

2. Does the state own the RTKABA's or does that right accrue to "the people".

3. If the stae owns the RTKABA, then the state also owns the right to life, liberty and property prior to the Fourteenth. Was it constitutional for states to murder, imprison and steal from it's citizens prior to the ratifiaction of the 14th absent due process? After all if the Second is not an indivdual right then the same applies to the Fifth and States could do all of the above constitutionally.

PS: Thanks for the post you made above. Feeling is mutual but you know that, even when we disagree.

"I want the scores of opinions arguing that states could steal from, imprison and murder their citizens constitutionally."

Well, I did give you one "case law that supports the position that states could abridge the right to life and liberty absent due process constitutionally?" as you asked before.
Before I go grab another, how about you give me one that says they could not steal from, imprison or murder their citizens because of the federal Bill of Rights.

That is your argument isn't it?

(Ahem, you never did provide the last example I asked for- or acknowledge my point that there isn't any.)

"who owns the right to keep and bear arms in the second amendment. Are you arguing that that right belongs to the states? "

Thar right belongs to the people. Where is the federal government given any power to say what they can do with it? In the Second Amendment?

You cannot change the state of the law by posting tripe on Free Republic.

Ah, so we should just shut up, bend over and grab our ankles and take it.

I'm glad the Founders didn't listen to your ilk a couple of hundred years ago. "Well, King George IS the king and his word is law. Until he decides otherwise, you must obey his word!"

Guess what? Change starts by enough people saying enough is enough. Apologists like you simply re-inforce the existing problem - that our rights exist solely at the whim of nine vultures in black robes (well, eight - Clarence Thomas gets it).

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