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.

"If you read the Senate debate on the 14th, then it is pretty clear that is what was intended - application of the BOR to the states, that is."

Well then it was one of the better kept secrets, in that neither the U.S. Supreme Court nor the Senate itself thought the 14th applied the BOR to the states.

A mere nine months after the 14th was ratified, the USSC ruled in Twitchell v. Pennsylvania that the Bill of Rights restricted only the federal government, not the states. Nobody mentioned the 14th Amendment.

Eight years after the 14th was ratified, Congress was considering the "Blaine Amendment", a proposed constitutional amendment to impose the First Amendment's religious freedom mandates on the states as well as the federal government. Why would they do that if the 14th amendment already applied the First Amendment to the states?

The BOR only applied to the federal government. The federal government, for example, could not restrict the freedom of the press -- but the states could, and did.

The 14th amendment was part of a trilogy (13th, 14th, & 15th) to deal with the newly freed slaves. The slaves were not citizens of any state and consequently had no state-protected rights or privileges. The 14th amendment made them "citizens of the United States", and extended some fundamental privileges and immunities to them.

"The only prohibition that should be possible with federal law on acquiring substances should be interstate commerce."

That's like saying the federal government should only be allowed to regulate interstate air travel. You're saying that an individual should be able to fly his private plane anytime and anywhere in the state he wants, including federally regulated air corridors and commercial landing patterns.

Since this private flying would have a substantial effect on interstate air travel, Congress has the power to also control this private activity. Makes sense, doesn't it?

Well, Congress has determined, in a Congressional finding, that your personal use of marijuana also substantially affects their interstate regulatory efforts. Ergo, ....

Short history of abortion?

Well, it started with the first human culture to have any organized use of herbs or tools.
EVERY culture has had access to abortion, ranging from ingesting varied herbs, to beating the belly of the pregnant woman, and to internally invasive means.

You may have to look hard to find any factual information on early abortion methods, I seem to recall reading that sharing such information is now illegal.

I can say that I found out from an out of print book that a certain plant which is an abundant native species in Nevada was used as an aborticant by the native tribes for centuries.

No matter what laws may be passed, the ancient wish to control the timing, sex, or sire, of a pregnancy will continue, and means to accomplish it WILL be found.
Not what the anti- abortion absolutist want to hear, just a fact.

In many parts of this world merely being suspected of having sex without marriage can get you killed, yet unmarried people in those regions still have sex.

A majority may be able to legislate their version of morality, but cannot always effectively enforce it!
If they could, Pol-Pot, Hitler, Stalin, the late Ayatollah of Iran, etc. would be much more respected than they currently are.

Eventually technology will provide for abortion in private, to such a degree that no one other than the woman will ever know.

"Only God (or natural law if you prefer) can grant rights."

True.

"States on the other hand, infringe on rights."

Not quite. States (actually the citizens of the states) decide which of these natural rights they will protect and to what extent. Your right to speech is protected, but not a right to slander. In Chicago, you have a right to defend yourself, but not with a gun.

f you read the Senate debate on the 14th, then it is pretty clear that is what was intended - application of the BOR to the states, that is.

Of course that's false. Most of the BOR was not incorporated until the 20th century. The first was the 5th Amendment in 1897. There is a SCOTUS case in the mid 1920s that even clearly stated the 1st Amendment was not incorporated to the states. This was not done until the late 1920s/early 1930s

You are right that rights are granted by God and government exists to protect those rights. However the argument advanced in Roe Vs. Wade did not deal with that question. It dealt with the question of is there a constitutional right of privacy that makes moot any State law on the issue of abortion.
Also the right against unreasonable searches and seizures has nothing to do with the right of privacy. It has to do with the right of citizens to due process. It also acknowleges that government in excercising its power is subject to lawful restraints. If it did have to do with a right to privacy it could be argued that any search or seizure violates the right to privacy. Since you can not gather evidence against a person without violating their privacy.
The government can not search your premises or persons without following legal procedures. But provided those procedures are followed a right to privacy will not prevent them from learning about every aspect of your life and using it as they see fit.

"The advocates of a constitutional right of privacy speak as though that right were expressly stated and enumerated in the Constitution."

These people who assert that we only have the rights that are enumerated in the Constitution have it all wrong. The Constitution was written to restrain government, not to limit the rights of the people.

I do have a right to privacy, arguably through the 4th Amendment,and also because God gives me one. Privacy, the right to be left alone as long as you are not hurting anyone else, is a natural right. I do not need government permission to be left alone.

Besides, the Constitution and the Bill of Rights states very clearly that the enumeration of certain rights is not intended to disparage other, unenumerated rights that we also have. An unenumerated right is just as much of a right as an enumerated one.

Don't get hung up in the semantics. Your "constitutional rights" are those rights you have which are recognized and protected by the Constitution. You'd be hard-pressed to assert the same rights protected by the First Amendment if it never existed and you were instead asserting them under the Ninth.

If you're asserting that the Ninth Amendment is the source of your federally-recognized constitutional right to privacy, then you had better be prepared for the Court to use it as the basis to issue all kinds of amendments to the Constitution by judicial fiat.

Dog Gone wrote:

You fail to understand his argument.

He's not denying that a right to privacy might exist. He's saying that it would be the creation of the state legislature or one reserved to the people.

It's not one created by the US Constitution.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

The judge wrote:

"-- 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. --"

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

This statement is one of the most bizarre I've ever seen by a judge:

"-- 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. --"

He admits that a right exists, one that he is not bound to support and defend, despite his oath as a judge to do exactly that.

Weird fella. He should be removed for 'bad behavior'

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