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.

I'm reading it......perhaps you should take your own advice and READ instead of PRESUME what the Founders had to say. From, August 13, 1789, when the HOR was discussing bringing the Amendments up for a vote:

"....Mr Smith.......For his part, he could not conceive of the necessity of going into any alterations OF THE GOVERNMENT until the government itself was perfected."

Frank admission that the BOR was intended to modify the fledgling FEDERAL Government. There was no mention of impact on the state governments.

More from August 13, 1789.. http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=368 James Madison...."....I wish the subject well considered, but I do not wish to see any unnecessary waste of time; and the Gentlemen please remember that this subject has yet to go before the Senate.

I admit, with the worthy gentlemen who preceded me, that the great number of the community are solicitous to see the Government carried into operation; but I believe there is a considerable part also anxious to secure those rights which they are apprehensive are endangered by the present Constitution." [Note, not rights endangered by the states, but rights endangered by the Constitution.]

....

"Mr. Page was positive the people would never support the Government unless their anxiety was removed. They, in some instances adopted it, in confidence of it being speedily amended; they will complain of being deceived unless their expectations are fulfilled. So much time has elapsed since the subject was first brought forward, that the people will not think us serious, unless we now set about an complete it.

He begged consideration of the citizens, who were anxious for the amendments; if these had been added to those who openly opposed the Constitution, it possibly might have met a different fate. Can the Government, made under these circumstances, possess energy, as some gentlemen propose? Is not the confidence of the people absolutely necessary to support it?"

From the foregoing it is clear.......the BOR was adopted to quiet the fears that the Federal Government would be too powerful. At no time was there any suggestion that the BOR was adopted to impact the operation of the states. The BOR modifies the US Constitution....and only the US Constitution.

Read Federalist 84, found here, which explains that not only was a BOR unnecessary to the work of the convention, but DANGEROUS: http://patriotpost.us/fedpapers/fed_84.html Previous posters on this thread seem to want to want it both ways.....that the Second Amendment guarantees their right to keep and bear, and also keeps the states from interfering with that right. NONSENSE. Neither is true from a historical perspective. We never ceded the right. The Second amendment is superfluous, and the BOR in total or in part, was never intended to apply to state governments.

Ehhh, can you show a single situation in which that is not the case?

I repeat this question once again.

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"?

Well I just posted it didn't I?

"In every inhibition intended to act on state power, words are employed, which directly express that intent"

In other words. In every restriction on state power, words are used, which directly express the intent to restrict the states. Whenever the Constitution limits state power it explicitly says "No state shall" etc. etc. Whenever it uses general language it restricts the federal government. This opinion was explicitly expressed by the SCOTUS in Barron and never overruled or even ever questioned by a SINGLE Supreme Court Justice.

The only thing that remotely applies is your pointing out that both Sections 9 and 10 mention Bills of Attainder & ex post facto laws.

These are just examples. Section 9 applies only to federal government even though it uses general language (except for the first paragraph). Section 10 applies to the states because it explicitly says that it applies to the states.

Is it your point that they should have explained that bit of reasoning when writing the BOR's to spare us confusion?

Well, you are confused. Certainly the Supreme Court wasn't confused when it said:

"(...) 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."

There is no reason to believe that the framers of the Amendments departed from that clear distinction which is used in Sections 9 and 10.

Keep reading, the page you linked to dealt with the Federal Judiciary. The next couple of pages talk about the Amendment process and its proper scope and verbiage. There was some dissent as to even having an Amendment process to begin with and this is what they are discussing.

Keep reading.

As for the Federalist, the matching "Anti-Federalist" holds and equal and opposite view.

Further, if the Federal power didn't extend to be superior to the States powers in these regards, how could those Rights protected by the States been "endangered" in any meaningful way? In point of fact, they were fully cognizant that the Federal government in it's powers, duties, and protections for our Rights, were SUPERIOR to the members States. That is why they went to such lengths to ensure that those Federal powers were strictly defined and limited.

At least, they were. It is indefensible to say that our current form of government in any way conforms to the Constitution accept in the most superficial ways.

Click here... lower left hand column...

"This will certainly be attended with great inconvenience, as the several States are bound not to make laws contradictory thereto, and all officers are sworn to support it, without knowning precisely what it is." Refering to the various purposed Amendment process and the confusion that could be attendant with chosing the wrong one.

This isn't an isolated reference, but one that is brought up time and again.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

If this isn't a guarantee of privacy, what is?

It only goes as far as certain kinds of searches and hinges upon the definition of "reasonable". Any other methods of detection not covered above could still compromise privacy. Therefore, I submit that it is not, in and of itself, a guarantee of "privacy".

In times of war and the terrorist threat, we do have to be rational. I support the President when it comes to monitering the phone calls to and from potential terrorists. The stakes are too high not to.

So one one hand, you think there is an absolute right but on the other think that it can be broken under certain circumstances which remain ambiguous. That's an interesting divergence.

DC observed, as have many here:

"-- The BoR is broad, pertains to Individual Rights, and needs no incorporation. The very idea would be laughable if it weren't for the fact that so many self described "Constitutional scholars" buy into such a delusion. --"
401 Dead Corpse

Take that argument to the Supreme Court and see how far you get.

Exactly. That is one of the points here made by everyone. Our USSC is ignoring one of the most important of our individual freedoms, our RKBA's.

The first step in changing that which you find repugnant is to admit the current state of affairs.

Who here denies that the "current state of affairs" is repugnant? Petulant repetition that your opponents do not understand 'currant affairs' is counterproductive.

Only then can you engage in any meaningful attempt to construct an argument sounding in the original documents to persuade the Supremes.

That's what FR is all about, imo; we are here trying to construct an argument based on our founding documents, one that persuades all levels of government, and all branches of those governments, to restore the Constitution and its Amendments as our supreme" Law of the Land".

Petulant repetition of that which you believe to be true, without any support whatsoever, will get you nowhere.

Works both ways goddess. You repeat your beliefs and cite your supposed supports quite petulantly, -- remarked upon by many here.

--- the BOR was adopted to quiet the fears that the Federal Government would be too powerful. At no time was there any suggestion that the BOR was adopted to impact the operation of the states.

Throughout the congressional record we see that protecting the individual rights of the people was of primary concern.--
-- It stands to reason that if your State is bound to protect your RTKBA's by its Constitution, and that same protection is also adopted in the US Constitution, [which all States must support as supreme law] then between the two protections checks & balances would insure that no infringements would occur.
This is not happening, as we see in States like California & New York, in part because majorities of people, people like you, insist that States can ignore our RKBA's..

The BOR modifies the US Constitution....and only the US Constitution.

So you insist. Why?

Previous posters on this thread seem to want to want it both ways.....that the Second Amendment guarantees their right to keep and bear, and also keeps the states from interfering with that right. NONSENSE.

Why is it "nonsense" to demand that all levels of government in the USA honor our Constitution?

Neither is true from a historical perspective.

Repetitive begging of the issue.

We never ceded the right.

Exactly. - 'We the People' have never ceded our inalienable RKBA's to any level of government.

The Second amendment is superfluous, and the BOR in total or in part, was never intended to apply to state governments.

Irrational conclusion considering you just admitted that "We never ceded the right". -- Correct?

Mr. LAWRENCE. Only a few words will be necessary to convince us that Congress have this power. It is declared by the Constitution, that its ordinances shall be the supreme law of the land. If the Constitution is the supreme law of the land, every part of it must partake of this supremacy; consequently, every general declaration it contains is the supreme law. But then these general declarations cannot be carried into effect without particular regulations adapted to the circumstances: these particular regulations are to be made by Congress, who, by the Constitution, have power to make all laws necessary or proper to carry the declarations of the Constitution into effect. The Constitution likewise declares that the members of the state legislatures, and all officers, executive and judicial, shall take an oath to support the Constitution. This declaration is general, and it lies with the supreme legislature to detail and regulate it.

Elliot's debates Vol 4.

Conservative Goddess:

"You have the right to use that which you can provide for yourself."

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paulsen misinforms on Constitutional fact:

Ah, no. Maybe in your opionion, sure. But it's not a constitutional fact.

The state in which you live decides what weapon, and under what circumstance, you may employ for self defense.

Cite your source paulsen.. You've made up a totally speculative bit about State powers.
We the people have never ceded such powers to any State.

In fact, if Illinois had made such a repugnant 'law' in their original Constitution, I doubt they would have been admitted to the Union..

The link should lead you to page 734....where Madison, a FEDERALIST, argued that the BOR modified the Federal Constitution. The question presented, over and over in this thread, was whether the BOR applied to the states. Clearly, under the original intent, it was not so intended. As I read this work (Thanks for the link) it is readily apparent that the Framers were only concerned with securing the rights of the people against real or imagined encroachments of the FEDERAL government.

As a member of the Federalist Society, that the Anti-federalist papers took the opposing view with respect to a BOR is not meaningful to me. They made some good arguments, but history has shown the folly of their "injudicious indulgence and zeal for a BOR."

Many of the problems and misapprehensions of the electorate flow from the notion that only those rights that are enumerated are held by the people---precisely the misapprehension of which the Federalists warned. The Federalists were brilliant and prescient men....practically foreseeing the day the Supreme Court would resort to examining the emanations of the prenumbras of the BOR to "FIND" a right of privacy. Utter nonsense. And so-called conservatives think that in order to overturn Roe v. Wade, we have to reliquish our right of privacy. That level of ignorance is inexcusable. But is is precisely because the Supreme Court resorted to that contortion, that it has reinforced the belief that we are dependent on the BOR for our rights.

While you correctly state that the powers of the Federal Government were narrowly defined, You mis-apprehend the quote from the Congressional record.....It cannot mean that the Federal Government is superior in all realms. Because the federal powers were narrowly defined, it follows that the spheres of influence of the Feds and States were not necessarily overlapping. Federal law is only superior within those narrowly defined areas. States are sovereign in areas where the Fed has no authority to act. A blanket statement that Federal Law was to be superior, is therefore incorrect. The fear of the Federal government at the time of the Founding was palpable; some would say even unreasonable.

Further, Madison believed any overreaching by the Feds would quickly be quelled by the jealous attachment of the people to their local governments. Federalist 46 is directly on point: http://patriotpost.us/fedpapers/fed_46.html

"...The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents. Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States...."

In Federalist 46, Madison further observed: "...It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government. So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage...."

With the ratification of the 16th and 17th Amendments, the incorporation doctrine controversy borne of the 14th, etc......we have significantly expanded the influence of the Federal Government over that which the Founders originally envisioned. I would argue that it was a positively ludicrous acquiescence. That was our right, but it does not mean that it was wise and I do agree that our current Constitutional order bears little resemblance to that envisioned by the Founders.

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"?

Well I just posted it didn't I? "In every inhibition intended to act on state power, words are employed, which directly express that intent"

That is Marshall's opinion. It does not prove your point.

Simply not so. -- Article VI expressly says that all of the Constitution is our supreme law, and that all of the States are bound by it, "notwithstanding" any State laws "to the Contrary".

This opinion was explicitly expressed by the SCOTUS in Barron and never overruled or even ever questioned by a SINGLE Supreme Court Justice.

The Barron opinion ignored Article VI. Marshall's erroneous 'decision' was then made mute by the 14th Amendment.

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The only thing that remotely applies is your pointing out that both Sections 9 and 10 mention Bills of Attainder & ex post facto laws. -- Which were mentioned separately because the bill of rights was not contemplated at that point.
Is it your point that they should have explained that bit of reasoning when writing the BOR's to spare us confusion?

Well, you are confused.

Not really. You can't refute my reasoning above, so you're reduced to repeating your 'Barron' opinion bit:

Certainly the Supreme Court wasn't confused when it said: "(...) 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."
There is no reason to believe that the framers of the Amendments departed from that clear distinction which is used in Sections 9 and 10.

There is no reason to believe that the framers of the Amendments departed from the clear words of Article VI which bound States to support all of our supreme law.

You are confusing possession of the right, with enforcement of the right, with Federal or State recognition of the right. That it is not recognized, does not mean you do not possess the right or that you may nto enforce the right. In states where the right is not recognized, it will involve a protracted legal battle. If this poor sap is lucky, he'll make it the Supreme Court and press for the incorporation of the 2nd via the 14th.

The argument made on this thread has been that the 2nd Amendment applies to the states, via incorporation doctrine. That is false. And the case you just linked to proves it false. The Second Amendment recognizes your right to keep and bear against Federal Action. The State Constitutions protect you against STATE action. Illinois apparently has draconian gun control laws and an inadequate state Constitution. It is up to the people of Illinois to rectify the deficiency in their Constitution. It is not up to the Federal Government to dictate to the people of Illinois.

Don't let the fact that this case involves the right to keep and bear cloud your judgment. Don't lose sight of the broader consequence of inviting the Feds to dictate to the state.

This would probably be a good test case, if they can take this to the Supremes...and get them to grant cert.

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