Hayleyanne-

Part of your post helped me understand your position more...And then the other part confused me further . I'll take it piece by piece.


Okay, I get what you're saying. However, my point is that the Federal Government is not given the power to violate privacy in any way in the Constitution. Therefore, that authority is left to the states. But the point remains that the Federal Government doesn't have the power to violate privacy, so we retain it as a right.


This is the part that confuses me. The opposite of, "the government can only do what the Constitution gives it the power to do." is "The Constitution only gives the government power to do things that the government can do." I don't see what your saying here. It seems to me that the 10th Amendment spells out that if the Federal government isn't given the power to do something, it can't, only the States can.

My position is that there is no general right to privacy in the Constitution, except as it relates to specific amendments. And as I stated earlier, this does not mean that our laws (common law and statutory) do not give us privacy rights-- they do. These general privacy rights are just not coming from the Constitution. [QUOTE]
Well, that's where we disagree. You're saying that you don't specifically see a right to privacy written out within the text of the Constitution...and you're right. That isn't the only measure though. I'm looking at the Constitution and saying, well, the Government isn't given the power to violate our privacy, that makes it a defacto right thanks to the 10th Amendment.

CP

CP-- the tenth amendment reads:

"The powers not delegated by the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This means that the federal government has limited power. What does this have to do with privacy? It is a provision in the Constitution meant to insure our federalist form of government. De facto rights are not created via the 10th amendment. But explicit "rights" and "regulations" can indeed be enacted by the States. State statute and common law can enact privacy law according to the 10th amendment -- unless such laws violate some specific provision in the Constitution. That is the meaning and relevance of the 10th amendment.

You seem to be forgetting about the 9th Amendment. The Bill of Rights set down certain "rights" that could not be violated. There was much debate among the framers about the case for protecting other rights not set down... this is why the 9th Amendment exists. A right to privacy exists, it is by definition, a fundamental part of the concept of liberty. The 9th Amendment states that the setting down of specific rights in no way denys or disparages other rights retained by the people. How do we deal with this. We identify rights and then determine if there is a legitimate government interest in denying or abridging those rights. In interpreting the Bill of Rights, it is important to include the 9th when exploring the possibility of whether rights are protected. Just because a right is not linked textually to the existing Amendments does not mean that right is not worthy of protection to the same extent as those rights set down in the Constitution... again, this is why the 9th Amendment exists. Granted, there are laws that protect rights to privacy, but what about laws that abridge the right to privacy... are they simply allowed to exist because the right to privacy is not specifically set down in the Constitution? If so, the 9th Amendment means nothing.



So how do we deal with an increase in the powers of government in areas not enumerated? We ignore the increase and allow the denial and abridgement of rights not enumerated? Must all protected rights be the result of a close nexus of rights within the same amendment? That somewhat ignores the intent of the framers in protecting the liberty of the citizens.

The right to privacy was not "created" by the courts. The right, as I've stated so many times before, is a fundamental part of the concept of liberty.



Griswold uses the penumbra argument. And perhaps the case involving contraception for individuals does as well. But these are not the only privacy cases. Roe for example does not use the penumbra argument, it uses the 14th Amendment. Liberty includes a right to privacy. If you look up the definition and history of the two words, you will see that. So the right to privacy has existed in this country since its founding, Griswold did not "create" it.

As I pointed out earlier, it is only recently that the ninth amendment has been construed to as affirming non-enumerated "rights" in the Constitution. History indicates that the 9th was intended, instead, to make clear that a Bill of Rights should not be interpreted to increase the powers of the federal government. The 9th amendment was most certainly not intended to present a blank slate to the Court upon which it could engrave rights not enumerated.



Do you really want to go there? What part of the Constitution refers to "liberty"? The 14th amendment, right? First off, the word "liberty" in the 14th amendment is part of clause that refers to procedural rights. "nor shall any State deprive any person of life, liberty, or property, without due process of law; . . . ." Clearly, a state can indeed deprive someone of "liberty" (whatever that means) as long as that person is afforded due process of law. It relates to procedure. Which of course -- could lead us into a discussion of "substantive due process"-- but that is another thread as I stated earlier.

Second, I do not buy your argument that liberty = privacy and therefore there is an explicit provision in the Constitution that guarantees a general right to privacy. Again I ask-- if what you say is correct -- how is the Court supposed to determine the parameters of a general right to privacy, where there is no textual guidance whatsoever?




We deal with it by reading the 9th amendment in appropriate historical context. It means that the Bill of Rights does not give the federal government power in areas not enumerated.




And who "identifies" these rights? And on what authority?




I fundamentally disagree with you on the function and purpose of the ninth amendment. It is not a blank slate authorizing the Court to divine new fundamental rights every decade or so as our culture changes.




We look to the specific and clear protections that exist in the text of the Constitution itself. We don't make up a general right to privacy.




See comment above.



The government is not an entity that functions separate and apart from the people. It is by definition "the people". When the power of the government is increased and we don't like it, we can change it through the democratic process. Or we can look to the Constitution. And yes, there must be an explicit or close nexus to the text, when it comes to rights that are protected. Otherwise, we are in a situation where the Court is deciding what is or is not worthy of constitutional protection. They are charged with interpreting the law, not making it. That is the separation of powers doctrine. And keep in mind, allowing the Court this kind of power cuts both ways. The Court, with that kind of power, can label anything a "right". It is not always a good thing.




see comment above.






Re : Roe, See comment above regarding substantive due process.

As for my final point on the right to privacy, Hayley, I see that you are concerned that the Supreme Court is creating rights that have not been created in the text of the Constitution. But I read the Constituion of something that grants certain powers to the federal government. I read the assumption of government being that those powers not delegated to the federal government are reserved for the people.

Unless the Constitution gives power to look into the private lives of people, then I see a right of privacy to exist by default. Maybe the court erred in naming a right instead of saying that these powers are not constitutional.

The Constituion does give ways in which the government can violate our privacy through listed and implied ways. There are even reasons why the government should be involved in the doctor patient relationship. (Providing courts to resolve disputes about service for examples) I believe that the FDA is a valid organization. So this is in all other rights is not absolute.

Yet I don't believe that the Constitution allows the government to stop an aduilt from choosing to have an abortion. In this I support Roe v. Wade and the implicit (if it shouldn't be explicitly identified is a point I don't care to type myself tired defending) point that beyond regulation the government should not be inserting its powers.

In summary, the burden of proof of the need for government action and intervention is on the government. The government should have to prove every case where laws get into our private lives. So I see this as a right by default left in all cases that have not been proven the government belongs.

If Privacy is not a Right; then there should be a ‘Constitutional Amendment”.

I bet that one will get more support than any of the ones currently being proposed. Heck, it might even pass; that way we won’t have to argue about a Right that everyone who is familiar with Freedom knows should be Constitutional.

I think that there may be a distinction here that Hayleyanne has not enunciated. We have been arguing this in terms of the federal government versus the individual. However, reading Hayleyanne's arguments closely, I see a point not brought out forcefully: there are three parties to consider here, not two: the federal government, the state government, and the individual.

I agree with those who argue that the Constitution should be read only for the powers it grants the federal government, not the rights conferred upon the individual. This was exactly the argument made over the Bill of Rights during the Constitutional Convention: if we spell out the rights, we imply that these are the only rights that individuals have. The intention was clearly to spell out the government's powers, and to make it clear that the federal government could do only those actions that were in conformance with the powers granted by the Constitution. Inasmuch as the Constitution does not grant the federal government any powers in regard to abortion, the federal government may not make any law restricting the liberty of an individual to have an abortion.

However, the state governments retain full freedom to do anything they damn well please. Prior to the 14th Amendment, state governments could trample all over the rights of anybody; there was nothing in the Constitution to stop them. The 14th Amendment extended the Constitutional rights of individuals to the state level -- but it did not extend the fundamental limitation on powers that constrains the federal government. The states are still free to trample on people's freedom, so long as they remain within the bounds of the Constitutional rights accorded to individuals.

The right to be left alone (I prefer this phrasing to the softer phrase "right to privacy") is not specified in the Constitution. In that sense, I think that Hayleyanne is correct in asserting that there is no explicit Constitutional foundation for it that can be applied to the states (and ONLY to the states, not the federal government). But I also agree with the basic reasoning of the existence of such a right implicit in a number of places in the Constitution. I tried a mathematical explanation of my reasoning some months ago, and that got nowhere, so let me try a visual metaphor.

Imagine Leonardo da Vinci preparing a pencil sketch study for a painting he intends to create. His pencil sketch leaves out all the details of the image, but nails down all the critical structural elements of his composition. At this point, Michelangelo turns over portions of the work to his apprentices -- this was a common practice during that period. His "constitution" for the painting does not specify all the shading, the precise positions of the fine lines, or many of the colors. He leaves that for the apprentices to fill in, knowing that his sketch-constitution has laid down all the fundamentals that they need to know to finish the work, and further knowing that his apprentices are all skilled in the art of painting. Then Michelangelo is called away by the Pope and doesn't return. So the apprentices (Supreme Court justices) must figure out for themselves how to fill in the details of the painting. They come to a portion of the image that is blank in the sketch. What to do? Apprentice Hayleyanne declares that, since the master did not specify anything, they have no basis to proceed and must leave that portion of the painting unpainted. Another apprentice points out that there's a clean curvature to the nearby portion of the painting, and that curvature should be extended to the blank area; that there is a shadow falling across another part of the painting that appears to be the shadow of a horse, and if so, then there should be a corresponding bit of shadow in the blank area; that the laws of good composition, when applied to the color balance of the painting, call for a crisp red tone in the upper portion of the blank area, and so forth. In other words, this other apprentice comes up with a reasonable conjecture as to the master's intentions based on the relationship of the blank area to other portions of the painting. Apprentice Hayleyanne objects that this is conjectural -- and she is correct -- but it is equally true that the conjecture does fit in quite nicely with the rest of the painting.

Yes, it's conjectural, but it's an entirely reasonable conjecture, and in the absence of Congress passing an amendment to clear up the confusion, it's the best we've got to go on. My overall conclusion: until we do this properly, we have to go with the conjecture we've got.

Erassmussimo-- I just want to say first, that I absolutely adore your metaphor! How creative it is, and it conveys the image so well. I love it. IMO, metaphors are a million times more powerful than mathematical explanations. And you are absolutely right, the point that I was not making very clearly, relates to the power of the individual States as a component to the analysis.

That having been said, I would alter the metaphor a bit-- to somehow include the notion of federalism. Why don't the apprentices have the option of providing each state with the ability to fill in the blank portion of the canvas as they see fit? We would then wind up with a number of different variations in color or shading, that still follow the blueprint of the master. Isn't that what our federalist system anticipates? And if Michelangelo doesn't like how Texas has decided to shade the blank portion a deep red, he can rally the states to pass an amendment to his blueprint -- forbidding that particular shade of red. Or, if some of the residents of Texas find the deep red color to be obnoxious, they can move to Arizona where the residents have colored that portion of the canvas a light blue.

Incorporation of the Bill of Rights. If you read the congressional debates regarding passage of the 14th Amendment, it is clear... very clear that the intent of this line, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," was to incorporate the bill of rights, including the 9th Amendment, and enforce it on the States. That being the case, the 9th Amendment applies to the States as well. One might be inclined to say that this negates the effect of the 10th Amendment, but that would be incorrect. The 14th Amendment fits well within the language of the 10th in that regard because of this phrase, "nor prohibited by it to the States".

The rights held as a citizen of the United States can't be arbitrarily infringed upon by the States -- they are bound by the Bill of Rights in the US Constitution. So the federalist system as it exists now does not anticipate the States being allowed to make individual determinations regarding fundamental rights. You can't deny the intent of the 14th Amendment when considering the nature of the federalist system.

What I'm saying with regards to the 10th Amendment is that it leaves all privacy issues to the states. Because privacy is not mentioned in the Constitution, it is beyond the Constitutional scope of the Federal Government. I'm not saying that the 10th Amendment specifically mentions privacy. What I am saying is that the Constitution's absence of the word means that it is not a Federal issue, and, thakns to the 10th Amendment, that means it's a state issue. So with that being said, that means that the Federal Government can't do anything to violate privacy, that is left to the states. But Federally speaking, it's a right.

CP

Entspeak-- if the general right to privacy were explicit in the Constitution, I would agree with you wholeheartedly. But it is not. And that is the point. The issue is who gets to color in the blank portions of the canvass. I say it is the states themselves, if the blueprint doesn't make clear how to do it. Or, there is always the option of amending the blueprint itself. What should not be an option is giving the apprentices full blown artistic license.



Got it now CP. I think we are in agreement then.

If what you say is true, the 9th Amendment means nothing. It's incorporation and enforcement on the States means nothing. You are claiming that the states can deny or disparage rights not enumerated in the Constitution if they see fit to do so. The point of the 9th Amendment was to establish that it wasn't necessary to amend the blueprint everytime a right not enumerated in the Constitution was recognized and laws infringing upon that right were challenged -- the list created by the first 8 amendments was not meant to be exhaustive -- other rights not listed, because it would be impossible to list them all, were also to intended to be protected. This does not mean that the Supreme Court can recognize any old right and protect it. However, the protection of liberty is the intent of the Bill of Rights and any right that is connected to any aspect of liberty that isn't mentioned specifically in the Constitution must be considered in light of the 9th Amendment. The right to privacy is a fundamental part of the concept of liberty. I know you stated that you don't agree with that, but you are ignoring the definition, etymology and historical use of the words. The right to privacy is extremely broad, I acknowledge this, and we do need to be careful in determining which aspects and under what circumstances this right should be either protected or infringed upon. But the general right exists and many specific aspects should be protected. This does not mean that the federal government and the States can't infringe upon that right -- no right is without boundaries and all rights may be infringed upon under certain circumstances. But I think it goes against the spirit of the 9th Amendment and the 14th Amendment to claim that the States should have the right to deny or disparage rights not enumerated in the Constitution.

Hayleyanne, you've convinced me to alter my thinking on this. I've always felt that Roe presented the most reasonable filling in of the blank space in the Constitution regarding privacy rights as they apply to abortion. I have acknowledged that this filling-in had its uncertainties, but felt that it was the best we had. What you have altered is my perception of the role that federalism plays in this picture. I had always thought that the 14th Amendment pretty well trashes states rights when it comes to the Constitutional rights of the individual, but now I see two gray areas overlapping. Yes, the right to be left alone can be derived from the penumbrae of various parts of the Constitution -- but the 10th Amendment casts its own shadow of doubt onto this whole mess.

My overall conclusion: the situation is unacceptably unclear. I don't think that a definitive answer can be found in the Constitution. I still think that Roe represents the best overall solution, but it's a kluge: a tossed-together, inelegant solution that does not truly resolve the issue. I admit that you have a case that, because of this uncertainty, we should let this matter be decided at the state level, but there's just enough substance to the "penumbra" arguments to make me uncomfortable with this resolution.

What we need is a Constitutional amendment addressing abortion directly. The American body politic is too paralyzed by its own polarization to address the issue, so we pass the buck to the courts. That's why the courts have so much power these days -- we're all too damned stubborn to work out a compromise among ourselves, so we lateral the ball to the courts and let them decide. That way we can condemn the courts when they make a decision we don't like, and feel good about ourselves. Chalk up another victory for moral cowardice.

I suppose this incumbs upon me the duty of preparing a new topic proposing such a constitutional amendment. <sigh> I'll try to get to it.

You are forgetting one vital aspect of the 10th Amendment when it comes to individual rights. It allows for Federal Constitutional limits on the powers of the State -- the 14th Amendment being an important example of such a limit. And Roe was not decided on the basis of the penumbra arguments set down in Griswold, though Griswold was listed as an example of court decisions that protected a right to privacy.

I agree completely. I think you have understood my argument exactly. I too, am uncomfortable with the resolution. The penumbra argument can be very persuasive-- and it is also reasonable. (again kudos on the metaphor). Additionally, I do not want to see abortion or contraception getting outlawed. That is the last thing I want to see. But I have resolved to have more faith in the democratic process. I want to strike a balance when reading the Constitution that does not render the 10th amendment irrelevant. Moreover, this is not a situation where we have a "discrete and insular" minority, where the democratic political process might be disadvantaged. So, I would place my faith in the "people" to do the right thing in this kind of instance. Do you see what I am saying?




Bingo. I again, agree wholeheartedly. We have gotten far too lazy when it comes to exercising our legislative will and holding our elected representatives accountable. We have ceded over the difficult work to the courts and then we complain when they exercise the power we have given them.

IMO, we need to get back to the hard work of lobbying Congress and our state legislatures for the changes we want made in the law. Think about it-- when is the last time people really worked for a cause and took it to their legislators, like with the civil rights act or the ERA. It has been a while. Much of this kind of political lobbying is done directly to the courts through individual cases.



I look forward to such a thread. I too will think about starting something along these lines (generally).




Entspeak-- aren't you raising the issue of "substantive due process" here? Perhaps we should think about starting a thread on this topic.

No, I am talking about the incorporation of the bill of rights and its enforcement on the States. That's what I'm talking about. I am talking about the limitations on States rights that are actually set down in the 10th Amendment. That's what I'm talking about. As regards my Roe comment, I was simply correcting Erasmussimo who seems to believe that Roe was decided based on the same argument as Griswold... which it wasn't. That is all I was talking about. If you want to start a thread about substantive due process... by all means do so, but it wasn't what I was talking about. This is a thread about privacy and if you have any comments about substantive due process and the right to privacy, then bring it up... it's relevant to this thread.

Entspeak-- no, it does not mean that the 9th amendment means nothing. It means that the 9th amendment is not a blank slate for the Court to define what constitutes a "fundamental right". The 9th amendment was included to make clear that the federal government's power was not to be read, by implication, to include everything not specifically mentioned in the Bill of Rights. There is a huge difference.



I am not ignoring the historical use of the word "liberty" at all. I will whole heartedly acknowledge that the word "liberty" has a privacy component. But that doesn't help in the constitutional analysis. Let's look at what you have suggested as a correct constitutional analysis:

"the protection of liberty is the intent of the Bill of Rights and any right that is connected to any aspect of liberty that isn't mentioned specifically in the Constitution must be considered in light of the 9th amendment [which means, as I understand your argument, potentially a "fundamental right"]" (emphasis added)

This type of reading is entirely too broad and offers no textual criteria (let alone any other kind of criteria) upon which the Court can determine what aspect of liberty amounts to a "fundamental right".

We are left with nothing but the Court to tell us what aspects of liberty are protected.




OK. Then what specific aspects should be protected? How do we determine what those are? Who determines what those are?

What standard does the Court look to in determining the "specific aspects of liberty" worthy of constitutional protection? We know the "standard" the Court looks to has nothing to do with the text of the Constitution. No where in the Constitution do we find the words: contraception or abortion. Perhaps the standard is: "the evolving standards of decency that mark the progress of a maturing society"? That seems to be a popular standard with the Court. If you recall, it recently ruled the juvenile death penalty is violative of the 8th amendment based on this test.

I suspect that the majority of the justices on the Court in 1973 believed that the "evolving standards of decency that mark the progress of a maturing society" required that it identify the right to have an abortion was one of those specific aspects of liberty that should be protected. I can't find any other standard the Court could have used? Can you?

So, what is to stop a future Court from applying this very same standard-- to produce a much different result? For example. As our technology evolves, we are able through ultra sounds and the like to film a baby that exists in a mother's womb, and see it in great detail. Could a future Court not then apply this standard and hold that a fetus is a "person" and therefore due all of the protections of liberty described in the 14th amendment. Could it not then abolish the right to have an abortion and replace it with the rights of the fetus as a person under the standard that our "evolving standards of decency" in our maturing society require such a result? Of course it could.

And keep in mind, my hypothetical makes no judgment whatsoever on the morality of abortion. The question of abortion raises profound moral issues, issues that good and fair minded individuals can disagree upon. But that is all it is, a moral question, not a legal one.

Ultimately, my point is that the Court could take the issue of abortion in any direction under the analysis set forth in Griswold and its progeny, because that analysis has no clear textual limits or parameters.




I think this statement is disingenuous. Roe could not have been decided the way it was, but for, the right to privacy that was identified in Griswold.

Although, truth be told, it is almost anyone's guess, what the exact legal reasoning in Roe was. The entire crux of the Court's legal analysis can be found in these few sentences in the opinion:



And there you have it. The Court did not settle the question of where the right to privacy (or the right to abort) is attached to the Constitution's text. The Court has simply declared that this "fundamental right" is some how associated with the concept of liberty in the 14th amendment or the 9th's reservation of rights to the people.

Therein lies the major flaw in Roe. Because we have no specific criteria or standard by which we can predict what the Court will identify as the next "fundamental right" worthy of Constitutional protection we are left with nothing more nor less than 9 justices enshrining into our Constitution what they perceive to be the "evolving standards of decency that mark the progress of a maturing society".

The intent does not end there.



What does it mean to have a right assigned into the hands of the General Government? It means that the Government can make decisions regarding those rights without limitation. This is why those rights would be considered insecure. The 9th Amendment was intended to secure those rights for the people. What does it mean to secure those rights? How do we secure them? It is obvious from the intent of the 9th Amendment that the answer to that question does not lie with the Government. The intent of the 9th Amendment is to limit the Government's ability to infringe on those rights not enumerated.



If we have a fundamental right to liberty, then, logically, it follows that all the various aspects of that right are worthy of protection. Obviously, there is a line drawn with regard to legitimate state interest and necessary limitations regarding those rights -- particularly when the protection would involve the violation of another person's fundametal rights. This was the major question regarding abortion.

To tie fundamental rights to existing textual criteria in the Constitution, limits the intent of the 9th Amendment. All rights not enumerated in the Constitution are secured by the 9th Amendment -- even those with no textual connection to the enumerated rights existing in the Constitution. Now, you do acknowledge that privacy is a component of liberty. No need to answer whether a right to privacy exists. It does. The question becomes to what extent... well, to the extent that it does not interfere with a legitimate state interest. In the example of abortion, was there, at the time of Roe a legitimate state interest in protecting the rights of the unborn as a person? No, there wasn't.



The court made it quite clear that if the unborn were considered by the law to be a person with rights, abortion from the point of conception would be constitutionally illegal.





There is no need to argue, in the case of privacy, whether it is or isn't an aspect of liberty. It is. As such, it should be considered secure. All of the enumerated rights are aspects of liberty. Those rights not enumerated should be, at least, considered aspects of liberty. This is why a parent's right to direct the upbringing of their children is protected even though there is no specific mention of it in the Constitution. This is why there is a right to learn a foreign language before the 8th Grade even though no such right is specifically mentioned in the Constitution. Aspects of liberty should only be barred or limited by legitimate state interest.

As an example: I have the right to drink soda pop. That is a personal decision that I have the right to make as a matter of privacy. There is no legitimate state interest in preventing me from drinking soda, so the Government can make no law to limit that right.



The Juvenile Death Penalty case dealt with the definition of "cruel and unusual punishment." The definition of a phrase already existing in the Constitution. It did not deal with recognizing aspects of a right that should be protected without textual connection to the Constitution.



The justices in Roe did not use this standard at all. They believed that the decision to have an abortion has always been a matter related to the right to privacy. They found no legitimate state interest in barring that decision before the end of the 1st Trimester -- the point after which the state's interest in protecting the health of women superceded the right to privacy.



As I already illustrated, Roe states quite clearly that if it is established that a fetus is a person with rights, all arguments in favor of the decision to allow abortion fall apart. The right to privacy is superceded by the rights of the fetus. If such establishment occurs through technology, the change comes not through "evolving standards of decency", but through "advancement in technology." The government can't recognize the fetus as a person in one area of the law and deny that recognition in another. That is what allowed the Roe decision to be made. If such a change were to occur through "evolving standards of decency", it would mean, most likely, that the rights of fetuses would be recognized in areas not related to abortion and some sort of reconciling would need to be done in order resolve the conflict in the law.

Privacy is not an abolute right. This is certainly true -- as noted by the justices in Roe -- when it comes to decisions regarding abortion. But privacy is an aspect of liberty, and decisions falling under the scope of privacy are worthy of consideration by the courts.

Give me an example, if you can, of something falling under the scope of privacy that you feel would be protected when it shouldn't.