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.
Maybe if you learned to read? Did you miss this one?
"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 knowing precisely what it is."This Post. Or maybe this one?
"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."
From Elliots Debates, Constitutional Convention Vol 4
No. Of course you didn't miss them. They just don't support your argument and blow the whole thing up in your face. So you ignore them. Next, you will find something else to take out of context and twist to try and fit your side of the debate. No need for that over here, all I gotta do is copy and paste.
We established however some, although not all its [self-government] important principles . The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed;
---Thomas Jefferson to John Cartwright, 1824. Memorial Edition 16:45, Lipscomb and Bergh, editors.
[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms.
---James Madison,The Federalist Papers, No. 46.
Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.
---Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.
What do you have? Quotes from justices trying to keep guns out of the hands of Negroes? Nice going Ace...
It helps if you take a reading comprehension class. I notice you are still taking quotes from what later people say the Founders said, instead of the words of the Founders themselves.
How quaint. Stupid, but quaint.
Sorry, but I take the viewpoint that words have meaning. If the founders truly wanted the 2nd to only apply to the feds, they should have written it like the first, with a lead in that clearly indicates it was only meant as a constraint on federal power.
Your way is similar to that of the current SCOTUS majority, who give words whatever meaning they want them to.
I am an originalist in that I believe in returning to the meaning of words in the Constitution. Trying to devine the intent of the Founders allows words and meaning not existant in the clear words of the Constitution to be found there. "Shall not be infringed" is as concrete as language gets. Since I don't see "by Congress" after that phrase, I will continue to assert that any clear reading of the 2nd is a constraint on all governments to restrict the right to bear arms.
This court has ruled that consistently with those amendments trial by jury may be modified by a state or abolished altogether.
Tarkin "absolutely" agrees:
You're absolutely right of course. But some people don't like facts to get in their way.
The bold fact from the 6th :
"-- In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. --"
Now you two may imagine that Courts can absolutely "abolish altogether"; our right to a jury trial in criminal cases, but that is NOT what the Constitutions 6th clearly says.
'Absolutists' find themselves in very odd positions. Why on earth would any rational person want to abolish jury trials?
Not one of your quotes even mentions the 2nd Amendment. Beggar.
Begging again. Sourcelessly, naturally.
Sounds like even those ratifying it in the State conventions KNEW that their State governments were merely subordinate to the FedGov within the scope of the Constitutions authority.
I state that as my opinion, dude. Never claimed otherwise.
I have quotes from the Founders....while they were debating the Second Amendment......
I have quotes from the Founders...which speak of the BOR as protecting the people from encroachments borne of the Constitution...
Your quotes are taken out of context, and as such, are invalid.
Wishing and wanting and throwing a tantrum will not make even one of the BOR applicable to the states, under original intent. IF any of the BOR were to be applicable to the states, why all the fuss over the intent behind the 14th amendment? Hmmm??
Ah yes....it's obvious he doesn't care to be confused with the facts....prefering instead to take quotes out of context in support of his argument.
Article VI is that proof. Read it, then try to refute what it says about State constitutions & laws "to the Contrary, notwithstanding"..
I've shown you multiple citations to the contrary......you've shown none. Wishing and wanting doesn't make it so.
Citations of opinions do not trump the clear words of Article VI..
And petulant piffles do not make your point.
Round and round you go. Where you stop, even you don't know.
Bullsh*t. They don't exist.
I also happened to quote James Madison himself who first proposed an Amendment to apply certain sections of the BoR to the states: "No State shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases" and later when it was rejected lamented that "the lack of oversight on the state's ability to pass unjust laws that limit the rights of the individual was the most fatal flaw in the Constitution". I guess that even Madison who framed the BoR failed to understand its meaning (unlike you of course).
Of course they don't. Nobody claims to trump the clear words of Article VI. But it has nothing to do with fact that the general language (as understood by Madison himself) applies to the general government. The states don't need to follow the rules which don't apply to them, just as you don't need to follow the rules which don't apply to you. If even the framer of the BoR understood that its provisions apply only to the feds (and therefore proposed another Amendment which would apply some parts of the BoR to the states) then why can't you???
You bald faced liar you. The first part of your misquote from Madison was his lamenting the lack of a BoR in the Constitution. Which was later added. In fact, several States registered their opposition to the Constitution UNLESS the BoR was added as it was generally understood that the US FedCon would supercede their own State Constitutions.
Don't you think that if EVERY single Justice (starting with liberals like William O. Douglas or Frank Murphy, and ending with conservatives like James McReynolds or Clarence Thomas) has a different opinion than you should look again at your reasoning? Your continuous ranting about Article VI doesn't make any sense if you are incapable of understanding the distinction between provisions that apply to the states and the provisions that apply to feds.
Yet you cannot deny, Barron was 'corrected' immediately after the war by the 14th. Or do you?
That (unlike the first question - that is whether the BoR directly applied to the states) is debatable. I definitely do not accept "total incorporation". I tend to lean towards the views presented by Justice Thomas, that is that the Fourteenth Amendment (through the "immunities and privileges clause") applied only "immunities and privileges" of the citizens of the United States to the several states (according to this view f.ex. the Establishment Clause does not apply to the states because it's neither a privilige nor an immunity). That is of course disputable, and the majority of the Justices tends to use substantive due process rather than the immunities and privileges clause mainly because of the Slaughterhouse Cases. But that is a matter for an entirely different discussion.
You're simply ignoring the fact that Article VI makes that addition unnecessary.
Well then it seems that James Madison was an ignorant when he proposed the Bill of Rights. The framers of the original Constitution were probably also ignorants when they clearly distinguished prohibitions on state power and federal power.
Why? Because Madison wanted to clarify the issue.
Nope. If you bother to read the Introduction to the BoR written by Madison you'll clearly see that he distinguished restrictions on the general government and restrictions on the several states. For example:
"I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no State shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every Government should be disarmed of powers which trench upon those particular rights."
Upon THOSE particular rights. Which means that Madison believed that EVERY government (which means the feds and the States) should be disarmed of power to restrict equal right of consience, freedom of the press and trial by jury (but he only mentions these rights). I think it is therefore logical that because he only mentioned these particular rights as the ones which should apply to the states (and he therefore proposed a specific amendments which would apply them to the states) the others weren't supposed to apply to the states. Or maybe Madison was also an ignorant and was incapable of understanding Article VI?
Because there was opposition to the BOR's from the 'states rights' contingent; -- and seeing that the issue was already covered by Article VI, there was no need to be more specific.
Absurd, if article VI covers everything than there was no need for the additional restrictions on the states in Section 10 and there would be no need for the additional amendment proposed by Madison.
You just above claimed they never questioned Barron; -- which way would you have it?
If you bother to read the entire post you'll see that they wanted to apply the entire BoR to the states but THROUGH the Fourteenth Amendment never directly.
Article VI proves my point. -- And ignoring it as you do is becoming very amusing.
Well you are very amusing by claiming that the entire world, all SCOTUS Justices, James Madison and constitutional scholars are wrong and only you know the truth.
"all constitutional scholars"
Well OK, that's a hyperbole. There will always be a meaningless, lunatic fringe of scholars that will ignore the facts.
True. But they both apply to the federal government. Look at the Sixth Amendment which provides with unmistakable clarity:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury (...)" The language is as general as it gets - "In all". According to your reasoning such language should apply to both the United States and the several states. Yet Madison proposed an additional (eventually rejected) amendment which would provide:
"No State shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases"
If the Sixth Amendment applied to both the United States and the several states than why did he propose an additional amendment which would restrict the states? Did he like repeating himself? Or was he incapable of understanding the true meaning of the BoR? Surely such distinction must mean something...
You may be right about the second part. I found this quote on the Internet and it was implied that Madison wrote this in a letter to Jefferson after the adoption of the BoR. He may have written it before (after all you shouldn't believe everything you read on the net) and if that's the case then I'm sorry (no lie was intended).
As to the first part regarding the proposed amendment it is a quote from his own Introduction to the BoR in which he presented the new proposed amendments and among them a specific amendment which would apply certain restrictions to the states. For me it is clear that an additional amendment wouldn't be necessary if Madison believed that the BoR would directly apply to the states.
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