I've seen expressed on more than one occasion by some of our constitutional scholars on that the right to privacy, as established in Griswold v. Connecticut (link) was in fact derived incorrectly by the Supreme Court of the United States (SCOTUS). Specifically, there is no mention of the word privacy anywhere in the Constitution.

Probably the source of greatest disagreement is the idea that rights guaranteed in bill of rights contain penumbras or extensions of the original rights that were enumerated specifically"



I searched the archives and could not find a recent debate on this subject, so I thought it might be useful to start one.

Questions for debate:

1) Do you agree with the majority opinion in Griswold, that the Constitution guarantees a right to privacy? Why or why not?

2) If you answered yes, from where is this right derived?

3) If you answered no, should there be an amendment specifically guaranteeing a right to privacy?

1) Do you agree with the majority opinion in Griswold, that the Constitution guarantees a right to privacy? Why or why not?

No. The reason is simple: what the Supreme Court found as evidence for a right to privacy is the right to privacy in specific situations, and these situations were specifically enumerated by the respective provisions of the Constitution. The Ninth Amendment says that the enumeration does not deny other rights retained by the people, but these rights must be held by the people to be retained. For these rights to be held by the people, they must be approved by the people (i.e. the legislature). Unenumerated rights must be elsewhere enumerated; the alternative is patent chaos, the rule of law subject to the whim of culture. The current enumeration devolves upon the courts, who, by this logic, can give the people any right "suggested" by the constitution.

3) If you answered no, should there be an amendment specifically guaranteeing a right to privacy?

Yes. But it should be made clear that this right to privacy does not apply if there is any effect on a non-consenting party, a minor, taxable monies, or any organism of any kind, including parasites and symbiotes, explicity protected by the local, state, or federal government. The first is obvious. The second is because minors cannot give true consent. The third is to prevent exploitation of the right to privacy to lessen one's tax burden unjustly. The fourth is to prevent harm from coming to any such organism - the added stipulation is to prevent creatures that are protected from being held as a single entity with those not, and losing protection.

1) Do you agree with the majority opinion in Griswold, that the Constitution guarantees a right to privacy? Why or why not?

I vehemently disagree with the majority opinion in Griswold. Bay State Rebel absolutely nails it with his response:





The Griswold "right to privacy" holding is patently wrong. It extrapolates a general, amorphous, right to privacy -- from provisions in the Bill of Rights that contemplated specific situations. It creates an all powerful tool that the Court can use to force fundamental cultural change. Anything can be deemed a "fundamental right" if the Court says it issues from a general right to privacy. Griswold marks the beginning of a Court that is no longer bound by the text of the Constitution itself.

And it is equally wrong to find the "right to privacy" grounded in the 9th amendment. As Bay State Rebel says so well: "unenumerated rights must be elsewhere enumerated". The 9th amendment was meant to insure that the people retained the power to enshrine specific rights into law, not the Court. To read the 9th amendment otherwise, is to cede absolute control (with no textual restraint) to the Court to determine exactly what constitutes a "fundamental right".


3) If you answered no, should there be an amendment specifically guaranteeing a right to privacy?

Yes. But the parameters must be spelled out clearly. I agree with the parameters laid out by Bay State Rebel:

1) Do you agree with the majority opinion in Griswold, that the Constitution guarantees a right to privacy? Why or why not?

I agree that the state has no business in dictating that married couples should not use birth control, and that doctors should not give advice on birth control. That's giving too much power to the state.

Interesting that this case comes from 1965.

2) If you answered yes, from where is this right derived?

Common sense is from where this right derives. We do not want the state to be in our bedrooms, nor the neighbors, nor the churches, nor peeping toms, nor anyone else for that matter. It is none of their bidness what goes on behind closed doors.

The state has no right to dictate anything about your body either. You figure out what to do with your doctor, end of story. Your medical records are protected from prying eyes of any sort.

So it can be stated this way: The state has no right to invade your privacy, nor does anyone else, unless a legitimate law enforcement agency shows just cause to a judge and obtains a search warrent.

We have the right of privacy by default, because the state has no right to invade our privacy, nor does anyone else.

The constitution does not guarantee a "right to privacy". Such a principle is meaningless. It's a blank slate that allows the court to create any number of rights and thus short-circuit the democratic process.

There should not be such an amendment created.

What could it protect? Anything done in "private"? In other words, if a person engaged in child pornography, drug use, embezzlement, or any other illegal activity in "private", it would be protected?

Griswold, like Roe v. Wade is yet another example of an activist court run amok in the pursuit of liberal social engineering.

1) Do you agree with the majority opinion in Griswold, that the Constitution guarantees a right to privacy? Why or why not?
Yes and No. I agree with the majority opinion that the Constitution guarantees rights, some of which involve privacy. I also agree that a broad general 'right to privacy' statement is not given in the Constitution. In this case - the Constitution suffices. The big one is the First Amendment for this case. The right of freedom of speech guaranteed in the First Amendment is enough to show that Connecticut has no business fining or imprisoning someone for giving advise on how to avoid conception.

2) If you answered yes, from where is this right derived?
The rights are derived directly from the Constitution.

3) If you answered no, should there be an amendment specifically guaranteeing a right to privacy?
First I have to think of what protections is the current document missing? Personal information by credit card companies comes to mind. Right liberty and the pursuit of happiness could use some specifics. Then of course many people would like to see specifics on abortion and homosexuals clearly spelled out. An amendment could clear things up here.

Where do you get this principle? My reading of the 9th Amendment is that it declares any power not granted to the government to be retained by the people. Thus, since the Constitution doesn't give the government the power to intrude into the privacy of the people, they retain that right. You seem to be inverting the entire sense of the 9th Amendment, changing it from "anything not granted the government goes to the people" to "anything not approved by the people goes to the government."


Doesn't this strike you as, well, anti-tautological? If an unenumerated right must be enumerated, then it isn't unenumerated anymore, is it? Your argument amounts to a denial of any unenumerated rights.

The constitution does not limit the right of the government to "intrude into the privacy of the people". It happens every day. When police conduct surveillance on people suspected of criminal behavior, their "privacy" is violated. When pedophiles have their computers confiscated and searched, their "privacy" is being violated too. The constitution does not prevent such actions from occurring nor should it.

The principle that "privacy" is some sort of right is absurd. One doesn't have the "right" to pursue illegal activities if they are done in "private". Our laws are designed (usually that is, with the exception of when they are created by left wing activist judges) through a representative process that is filled with checks and balances. What comes out of that process, by design, represents the will of the people and their view of "morality". One can't just short circuit that process by inventing a right to "privacy" to hide illegal and immoral activities behind.

Privacy is a "condition", it's not a "right". Saying one has a "right" to privacy is like saying one has a "right" to "quiet"... or "noise" for that matter.

This post is going to ramble for a bit... apologies in advance.

There are a couple of things going on in this discussion here. As is typical with any debate about the law, there are layers of information to be considered. I can think of three that we need to discuss. First, what is privacy? Second is how we interpret the Constitution (since reading it is insufficient), and third is where does the right to privacy come from (which will in part be explained by the previous two.)

First though, I will answer Doc's questions.

1) Do you agree with the majority opinion in Griswold, that the Constitution guarantees a right to privacy? Why or why not?

Yes.

2) If you answered yes, from where is this right derived?

See below.

Ok, so why? First, we need to ask what privacy is? Where does the word come from, and why does it not appear in the Constitution? I found the following definition at the Online Etymology dictionary:



Now pay close attention to this dates, they are important. We all know by now that the foundation of the United States Constitution was a combination of the Liberal (there's that evil word again) philosophy of the European Enlightenment, and the Common Law tradition from England. The latter has its base in two documents: The Magna Carta and the "Registry of Writs." This volume of petitions, and their eventual absolutions (writs of the king, later king's court) was closed (exact year is impossible to say) during the reign of Henry the 8th. Note that this is around the same time that the word privacy was first recorded, and long before it had come into popular usage. It is for this reason that the human body, which is recognized in the common law as belonging solely to the person, is never discussed along with the word "privacy," even though the literal meaning of the word describes the exact position that common law takes regarding the individual.

What is the significance of all that junk? That "privacy" was a word that described to use a specific concept: liberty of the self, which was not in use in the legal tradition that informed the Constitution during the 18th century. The word itself is not in the Constitution because the word itself had little meaning or impact at the time.

Which of course raises the question: does that mean that privacy is in the Constitution. Take a look back at the definition I offered before, and then read this:



I've established in previous posts (as has been confirmed by Hayleyanne, who is a legal scholar in her own right) that "possession of the self" is a fundamental element of the English Common Law, and I've demonstrated that the exclusion of the word "privacy" (and scarcity of the word "private") can be attributed to the evolution of the english language.

That means it's time to discuss how we interpret the Constitution. I know I'm beating a dead horse here, but it's the only way I can answer this question. I like to think that you can read the constitution in two ways: literalist or translationalist. A literalist reads the Constitution and applies it directly; a translationalist attempts to read the Constitution and place it in a contemporary context...



Do you see what is going on here? For the Constitution to have the same meaning now that it did in 1789, it has to be read differently. If we were to take a literal reading of the Constitution not only would we have no right to privacy, but we would have no right against ANY sort of electronic trespass. The government could very easily watch each and every bit of data that flows in this country with impunity because the 4th and 5th amendment clearly states that only physical property is protected against intrusion.

Simply, if you argue (as some people have done here) that there is no way to read a right into the Constitution that isn't explicitly and literally exclaimed, then you must also accept that you have no 4th amendment rights to any information or communication whatsoever. Otherwise, you're just a hypocrit.

This brings us all back to Griswold I guess. (What a long strange trip it's been.) Griswold confirmed what the authors of the Constitution could not have put in any more plain terms, using the language that was available to them: each individual has liberty (from the government) of the person; which is only overridden by a reasonable cause (the interests of justice for example) which is defined through due-process. The fourth amendment does not include a right to "privacy" because the concept did not exist then as it does now. What it does include is "liberty of the person," which we can all agree on. As Griswold explains quite clearly, "liberty of the person" is completely meaningless without a "zone of privacy." Simply ignoring this fact so that you can rail against the perceived injustices of the complications stemming from this "zone of privacy" ruling smacks of hypocrisy.



You have reduced the Constitution to simple syllogisms.

Your last paragraph is a hypothetical. As ANYONE who has actually read the Constitution (in addition to "democratically legislated" penal codes) knows, our individual rights are not absolute. They are subject to the consideration of the greater good and the interests of justice; this consideration is decided through case-law, precedence, and legislation. Your hypothetical is patently false.

Editted to remove me being a jerk.

Privacy is a "condition", it's not a "right". Saying one has a "right" to privacy is like saying one has a "right" to "quiet"... or "noise" for that matter.

Okay, so we write laws that protect privacy and people from undue noise. Just because a word does not appear in the Constitution does not mean that the concept falls off the face of the planet.

I understand your take on legitimate law enforcement doing surveillance, seizing computers or other stuff, even breaking down the door with guns drawn. Still, this is restricted to legitimate law enforcement, and the no-knock intrusion has some serious problems with it, like getting the address wrong and depriving innocent citizens from life, liberty, and of course any further pursuit of happiness.

Currently, this country has a tremendous problem with identity theft. I'm suspecting that further laws restricting the access to personal information will be coming, both to protect citizens and businesses. There is nothing in the Constitution that prohibits these laws from being written. There is no clause that goes, "The government shall intrude on citizens whenever it's convenient to do so, and businesses have the right to broadcast personal information."

I also can't find the clause that gives businesses the right to take away our rights, like free speech. Oh well, guess the term "business" doesn't show up there either. A lot of words don't. It's up to law to fill in these gaps, eh?

Surprisingly, I disagree with my usual Constitutional allies on this one. Yes, the Constitution does guarantee a right to privacy. In saying, "The right of people to be secure in their persons, houses, papers and effects against unreasonable searches shall not be violated." the Framers laid down the right to be safe from government intrusion without a reason...In a word, privacy. UltimateJoe hit the nail on the head, so I won't be a UJ ditto-head and explain essentially what he just said. I will however expand on the point.


Even if you are not convinced that the IVth Amendment does not establish the right to privacy, it is still Constiutionally impossible for the government to violate the "perceived right". The Tenth Amendment says, "The powers not delegated to the United States Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Now pick an issue that you see as a "privacy issue". Now, because privacy is not specifically mentioned in the Constitution, chances are your issue isn't either; because your issue/privacy is not mentioned in the Constitution, the Federal Government doesn't have the authority to your-issue-here.

So if the Government doesn't have the Constitutional authority to do something, it can't: no consent is given to the government to invade privacy in any way, therefore, it is a right, by definition.

CP

What the state should not do is different from what it is prohibited from doing; common sense has no influence upon the law. The law can run directly contrary to common sense, and it is still the law if the powers-that-be declare it so. I think everyone here has heard and possibly used the argument that gay marriage runs contrary to common sense, but few who hold that position would say that if ratified, such a law would be invalid for this reason. Thus, if a law is made that goes against what you think the state should do, it is still a law. Of course, if enough people believe strongly enough it goes against what the state should do, the legislators who voted for it will be removed from office, and their successors will repeal the law. This, however, must be done; a law cannot be declared unenforceable simply because it is "bad," unless some higher law overrides it.



I'm not certian, but I think you have the ninth and tenth amendments confused. The ninth amendment states that the rights laid out in the Constitution should not be considered to deny other rights retained by the people. However, this does not prohibit the legislature from doing so. Otherwise, which rights are inalienable? It would take a hopeless fool to say "all of them." All of what? "All of them" could include any crime imaginable. You may point to the Magna Carta or the Declaration of Independence, but while these strongly influence our law, the Constitution is its basis, and it recognizes neither, and the legislature (to my knowledge) has recognized neither. Indeed, if it recognized either, many parts of the first eight amendments would have been totally unnecessary.



It is. What I meant in that sentence was unenumerated by the Constitution, which does not necessarily make a right invalid. However, to be protected nowhere does make a right invalid. I am not saying that we have no rights by default; on the contrary, we have every right by default. I am saying that no right is protected by default, and can be denied by the states if it is not protected by the union.



Ditto.



I have some issue with the postulate that reading the Constitution is insufficient. Some parts of the Constitution could arguably have another meaning, but this other meaning often borders on paronomasia. The Constitution says what it says, and all else should be left to the legislature; the Consitution itself says as much.



The idea of privacy in general did not exist; this is true. But all elements of privacy had a conceptual basis at the time. The portions of one's privacy that are protected are portected; those that are not protected are retained unless banned, and nude unless protected. The right to privacy, as it is considered here, is that no business conducted in private, between consenting persons, be subject to the law of any state. While I will admit that this is a good rule of thumb for lawmakers, it is not written into the Constitution.



No, not if you consider tapping a phone to be a "search." Isn't it an unreasonable search to examine someone's home, through a window or a crack, even from afar? Then why would it not be unreasonable to examine that which is sent, on a theoretically uninterrupted connection, between two private homes? And to conspire on a phone remains illegal, depite the fact that one cannot learn without warrant.



The word "liberty" must be placed in context. "Nor [shall any person be] deprived of life, liberty, or property without due process of law." And the Fourteenth Amendment's guarantee so nearly parallels this that it is obvious that its intention is to apply the same rules to the states. This is in the context of depriving a single person of liberty already held; it does not matter whether the laws governing this person give him total freedom or near-despotism. To say that it is not due process of law for a state to rescind a right is tautologically to say that no laws may be made.





They give the right to be free from government intrusion without a reason, yes, but this only applies to searches. There is no right to be free from charges for crimes committed in privacy. Of course, due to the provisions of the fourth amendment, these crimes are made more difficult to discover, but if they are discovered, and without violating the fourth amendment, enough evidence is obtained, a crime has still been committed.



But this was not a matter of the Federal Government; this was a matter of the State of Connecticut. The right to privacy, in this context, was the prohibition on the State of Connecticut to make a law regulating private behavior of a married couple. I most certainly agree that the Federal Government would not have the authority to make such a law. However, most right-to-privacy cases deal with state laws, and the Tenth Amendment seems to favor these laws.

1) Do you agree with the majority opinion in Griswold, that the Constitution guarantees a right to privacy? Why or why not?
I do agree with Griswold, esp the majority opinion. One of the fundamental rights established by our government by ratification of this constitution was the idea that unless the government has a compelling interest in regulating an activity, the individual right to be simply "left alone" should prevail in every case. This is the very essence of the social contract upon which this Jeffersonian Republic was founded. This is especially true in reviewing the 4th and 5th amendments (discussed below).

2) If you answered yes, from where is this right derived?
This right of privacy is derived from the following areas:
Common Law - I'm not going to repeat UltimateJoe's excellent analysis in this area, but simply state that common law has always held influence in the formation of our laws. It is the law that our society evolved from. That does not give it primacy over codified law in this country, but can be used to support decisions where such influence is lacking.

1st amendment - The zone of privacy created by freedom of association and assembly.

3rd amendment - The forced quartering of soldiers during peacetime (albeit antiquated) establishes a zone of privacy in the home, though the home privacy is also codified elsewhere.

4th amendment - UJ and CP's analysis on this are dead on here.

5th amendment - The right to avoid self-incrimination creates a zone to prevent government taking without your consent. Second, as UJ pointed out, the ability to not be deprived of liberty without due process all but explictly establishes a right of privacy, or to be left alone. It also establishes that this right is not absolute, as I seriously doubt anyone would argue with.

The 4th and 5th amendments in particular create this right, as noted from the original Griswold decision:

Note that Boyd v. United States is from 1886! Do we still think privacy is a modern invention? From Boyd


9th amendment - Once the framers crossed the bright line of insisting on a bill of rights, this amendment was insightful enough to recognize that it could not foresee all rights the people would reserve as a result of the evolution of our culture (particularly phone communication and the internet). This amendment was almost entirely James Madison's invention alone, and heres what he had to say about it (from Griswold)


10th amendment - CP's analysis is dead on in this case as well.

14th amendment - Served to extend those guaranteed liberties to the states. I'll admit this one has some significant contention here.

It is for these reasons that I very much believe our constitution grants a right of privacy to the people of the United States.

Doc

You have made my point for me. There is nothing in the Constitution which says that viewing through a window constitutes an illegal search; yet you consider it so. You have engaged in the sort of translation which you suggest is not necessary. Lets not lose sight of Griswold here.



I'm afraid I don't understand? It's not a "right" because the law in question was a state law? Once a right is enumerated, and you've conceded in part that a certain right to privacy is enumerated, then neither the state nor federal government can pass a law to revoke it.

In your response to my post you failed to meet and sort of standard for refuting the underlying fact; that the right to "liberty of the body" is enumerated by the fourth and fifth amendments. For that "right" to have any meaning a "zone of privacy" must exist. "Liberty of the person" demands that whatever a person does with their own body, so long as it does not impinge on the rights of others, is well with their rights. Can you refute those two ideas? Because those were the underlying elements of the Griswold decision.

This is where your case rests, and you rest it on a decision that applies to police searches, not the law itself. Griswold and its sucessors make decisions on the law itself, and this is not protected by these amendments. The right to privacy, as it is given in Boyd, only applies to searches, not to statutes.



The Constitution is not a dictionary. The definition of "search" is "a careful examination or investigation." Listening to one's private conversations is a close investigation of the person, and thus, a search of the person. Looking in someone's window is, of course, a search. However, this opens the door for the definition of "liberty."



I was responding to Pat's claim that the right to privacy is supported by the tenth amendment.



Are you familiar with Don Giovanni? Specifically, the fifth scene of the first act, in which Giovanni, accompanied by the crowd, proclaims "viva la libertà!" Such a definition of "liberty" is surely not what you suggest, but it is what I suggest - hence "due process" to place restrictions on liberty. Due process of law was undertaken in this case. The laws of the time did not reflect a concept of sexual privacy, and did not always reflect the harm principle. As such, it can be assumed that liberty can for the legislature of a state to restrict liberty is to be considered sufficient process.

I don't know where this is coming from...Comitting a crime is...well...illegal, even if you do it in private, I don't think that anyone is disputing that here.

True, but the question was, "do you agree with the majority that the Constitution guarentees a right to privacy?" UltimateJoe, Doc, and I [wow, I hang out with liberals], have spelled out the reasoning behind our yes answer. The Consitution of the United States affords each American citizen a right to privacy.

CP

The constitution of the United States doesn't afford people ANY rights. It is a document that limits government; not businesses, not individuals, etc. The rights of the people are considered inalienable, not granted by the government as they are in other political systems. Our legislative process is designed to handle our vision of morality, what "privacy" is acceptable, and what is not. The constitution was pretty specific about what "rights" are explicitly protected and an amendment process was designed to expand that list (after a difficult process was followed). All other "rights" are open to debate through the legislative process.

The problem with the activist court that invented a constitutionally protected "right of privacy" is that it's so broad based, so vague, and so malleable, that it can be twisted to mean anything.

Like it was in Roe v. Wade where "privacy" was used to create the "right" for a woman to have an abortion.

This is utter nonsense. One does not have a "right" to privacy. Otherwise, as I pointed out in several examples, this right would prohibit government from infringing upon it to enforce the law. That's not to say that our society should value privacy in many situations and should pass legislation designed to protect it. But that's not the same thing as a "constitutionally protected" right.

And, the argument that "rights are not unlimited" misses the point. If there is nothing in the constitution, or the original INTENT of the constitution that is explicitly spelled out, it is the territory for the people (through their elective representatives) to hash out. Privacy, abortion, what business can (and can't do), etc., etc., etc., are the domain of the legislative and executive branches, NOT the judiciary.

When an activist court "discovers" a new "right", by reading between the lines of the constitution, they throw this critical balance designed into our system right out the window. The liberal interpretation of the constitution essentially makes that document meaningless. It can be twisted into an incarnation that an activist court wishes. That was NOT what our founders intended.

That's not true at all. Everyone has a right to free speech, yet it is legally suspended if, say, we comitt a crime. Rights are inalienable, yet they are often suspended when a crime has been comitted.

Here I agree with you. It is the job of the legislative branch to hash out the parameters of the right of privacy, but the fact remainds that such a right does exist.

Well, this certainly marks the first time that my view on the Constitution has ever been labled "liberal". My read here, in my opinion, nowadays would be called ultra-conservative. I say that because I have used several of the Amendments and clauses therein to determine what I'm saying is right. If I was an "activist", I would have no Constitutional ground to stand on, but I do, and I've already explained why I do have ground to stand on. The Constitution does not give the government ANY authority to violate a citizen's privacy, that means that the Federal Government can't violate a citizen's privacy, making it inalienable, and, by definition, a right. We can certainly make laws determinging how far that right goes, but Constitutionally, because the government can't do it, we retain it as a right.

CP

That's inaccurate on two counts. First, my case doesn't rest on the 4th & 5th amendment, that is but one element of the right of privacy enumerated by these amendments. Second, Boyd is about a search and seizure of property from within his home. The main point in referencing Boyd is to note the historical context of privacy being enumerated as early at 1886, though there are references that predate even Boyd, I believe, as Ultimate Joe has pointed out.


Well, your analysis would be correct if it weren't for those founders being smart and including due process into the equation. Its very simple, Lord Helmet, that is what keeps an inalienable right from being absolute. Not a single one of the rights, including that of abortion, have been held by the courts to be absolute and/or inviolate. Due process affords the government the ability to prescriptively encroach on those rights when state interest is sufficient for doing so.


I would agree with that for the most part. However, it is the judiciary's job to interpret the constitution and measure those laws to ensure that they do not encroach upon the rights of the people without a compelling state interest to support it. The key here is presumption. When the actions of the government directly compete with the rights of the people, it is the burden of the state to prove and substantiate a compelling state interest for doing so. It is therefore the jurisdiction of the court to decide when that scale is tipped.


It only stings for a bit, I promise

I'd like to ask a question that throws this debate into a new light: what's the difference between the term "liberty" as the Founders used it and our term "right to privacy"? Is there any operational difference? If not, then the first debate question can be rephrased as "does the Constitution guarantee liberty?"

So first let's look at the difference between the two terms. Liberty is the freedom to do whatever you please without interference from the government. The right to privacy is the right to be left alone in your private actions. These two concepts aren't synonymous, but they are quite close.

Our problem arises from the abstractness of the concepts. The Founders did not intend that liberty includes the right to murder; to them, it was self-evident that "your liberty ends where my nose begins". The term is so broad, so abstract that we have to assume restrictions on it, and those assumptions are never made clear in the Constitution. The right to privacy is narrower than liberty, in that it includes the nose-notion. So in fact our use of the concept of privacy is a better-honed version of what the Founders meant when they used the term liberty.

The text of the Constitution does not grant us any right to liberty or to privacy. Yet we all agree that this goal was the entire point and purpose of the Constitution. To deny a right to privacy is tantamount to denying liberty, yet there is no strict legal basis for asserting that we should have liberty. Does the SCOTUS create new laws when it asserts that we have a right to liberty? Go figure.

First off (again), the constitution does not grant us any right to liberty or to privacy or to ANYTHING. And no, it was not the point and purpose of the constitution. The constitution does not GRANT us anything.

It is a list of constraints on government. Period.

It says that certain rights, not enumerated specifically in the constitution, in other words LIMITING GOVERNMENT in those specific examples, are retained by "the people". In other words, the people's representatives in the legislative and executive branches.

SCOTUS creates new laws when, for example, they assert that a woman's right to abortion is based on a "privacy" right that was somehow found in the invisible ink visible only through liberal glasses within the 14th amendment. By doing that, they do an end run around "the people" who may decide, through their legislatures and elected executives, that such an activity is immoral, wrong, and should be illegal. On the other hand, they may do the exact opposite.

That's the entire problem with an activist judiciary. They tilt the co-equal balance of power dramatically in their favor. They "create" rights, they "create" laws, and they engage in social engineering that may be outside of the will "of the people". It's tyranny from the bench, not a representative form of democracy.

There is no right to "privacy" put into the constitution. Therefore, it's up to "the people" to decide what the rights around privacy (and EVERYTHING else not specifically enumerated by the constitution) should be.

If the right to privacy can not be contrued or implied by the existing amendments, what do we do with other rights not specifically mentioned in, but implied by, certain Amendments? Freedom of association is not specifically mentioned in the Constitution. It has been, however, long been construed by the Supreme Court as being protected under the 1st Amendment, starting with cases in the 50's and 60's involving the NAACP and most recently in Boy Scouts of America v. Dale.

It is clear that rights can be implied as being protected through those specifically enumerated in the Constitution. As for the Court effecting cultural change. I think the establishment of the freedom of association had a huge cultural effect and it came about through the Courts.

If you feel that the right to marital privacy is not protected by the Constitution and that such a right can't be protected through implication, then it is necessary to look at other rights established through implication and deem them as unworthy of protection as well.



The people's representatives in the legislative and executive branches make up the government. So you are saying that those rights not specifically enumerated in the constitution are retained by the government -- the elected representatives of the people -- and not the people themselves?

That doesn't make much sense.

We do not have a "direct" democracy. We have a "representative" democracy. The people speak through their elected representatives. Therefore, those rights not enumerated in the constitution are retained by the people.

It's up to them to decide where the lines are drawn. The government enforces the laws that are made on behalf of the people. The people have it in their power to elect those who represent their views.

What part of our system is not clear?

Ah, but what protects the rights of the minority from the power of the majority -- checks and balances. The majority picks the government and the government represents the views of the majority. That does not change the fact that rights are retained by the people -- all the people regardless of how they vote -- and not their elected representatives. It is not within the power of our government, elected though it may be, to determine, without proper checks and balances, which fundamental rights are to be recognized and protected or infringed upon. I could be misinterpreting what you are saying, so correct me if I'm wrong, but you seem to be leaping that rather crucial element.

I am not saying that the Supreme Court hasn't overstepped its bounds in some cases, but I don't agree that it did in Griswold. The reasoning is sound. There are other rights that have been established by the courts that are protected under the Constitution by implication -- the freedom of association being one of the most notable.

Search and seizure. This is a minor detail; the point is that here, the "right to privacy" is being used as a shorthand for the literal protections of the fourth amendment. Simply because it is called the right to privacy does not mean that it is the catholic right to privacy usually enforced by today's judiciary. In regard to the other amendments you listed:

1st amendment - A right to freely assemble or associate, nothing more.
3rd amendment - A right not to be subject to the quartering of soldiers, nothing more.
4th amendment - A right not to be subject to unlawful search or seizure, nothing more.
5th amendment - A right to privacy unless limited by due process.
9th amendment - But what rights? Society changes, and the common law changes, and the rights of the people change. "Gay rights," two hundred years ago, would have been insanity.
10th amendment - But then, states would not be subject to the right to privacy?
14th amendment - Simply a restatement of the fifth, only with a different subject. If my arguments for the fifth and fourteenth are not sufficient, then I will point out the phrase "nor shall property be taken for public use without just compensation." If the legislature is not due process of law, this would be utterly redundant, as property could not be taken for public use, for that would not be due process.

In conclusion, I suppose I will admit that there is a right to privacy. However, the right to privacy does not exist. We have a right to privacy as enforced by the third, fourth, fifth, and fourteenth amendments. These amendments, however, deal with three specific situations - the right to privacy of one's home cannot be infringed by soldiers in peacetime. The right to privacy cannot be infringed in search or seizure by the government. The right to privacy unless limited by due process of law exists - limitations passed by a state legislature are due process, except for laws that are otherwise illegal (such as attainder). The first, ninth, and tenth amendments have been brought up. To use the ninth to govern is, frankly, as effective as using tea leaves. Any eight-year-old child knows what the first guarantees - religion, speech, press, assembly, and petition. The arguments I have seen for a right to privacy being inherent in these is that to encroach on assembly or religion is also an invasion of the right to privacy, but I fail to see how this implies the converse. The tenth amendment is a restriction on federal power, and does not apply to state law.

However, these are just restatements of laws that are already on the books. The general right to privacy goes beyond these three, saying that the government cannot make laws infringing on marital privacy, personal privacy, etc. While personal privacy is protected, it is only protected from search and seizure, not from regulation by the states. The right to privacy includes this, and this part of the right to privacy does not exist. It doesn't matter if the concept of general privacy didn't exist then; if those who wrote the Bill of Rights wanted to protect this part of it, they would have said that no law should be made infringing on marital relations, or regulating one's papers, effects, etc.

I haven't missed the distinction. The rights of the minority with respect to what?

The government is limited by the constitution in their actions against citizens of ALL points of view; majority, minority, and in-between. That's what the constitution is supposed to do.

Are you saying that those who's views LOSE elections should have an equal status to those who WIN?

That isn't democracy or even representative democracy. It's tyranny by a minority and that's what we're suffering through now via an activist judiciary.

What an activist judiciary does is escalate, due to POLITICAL considerations, the views of people who cannot gain enough political momentum to pass their agenda and thus be relegated to a minority position. And we've been sold that bill of goods via the specious argument of "protecting the rights of the minority". Hogwash. The rights not explicitly protected by the constitution are in the hands of the people (and their elected politicians) to decide. In other words, the DEMOCRATIC process decides those questions.

That's how the checks and balances is supposed to work. When the judiciary moves well beyond their 1/3 allotted power, they mess up the entire delicate balance.

An activist judiciary is a lose-lose proposition any way you look at it.

There is a direct connection between the first amendment and the freedom of association. Granted, it is a broad reading of the first amendment as it reads expression to be more than just political expression. However, it still directly flows from a specific amendment to the constitution. The right to privacy is cobbled together from "penumbras" emanating from numerous amendments with no direct contextual base.

What is the direct contextual basis for broadening the protection of the 1st Amendment beyond the rights specifically mentioned in that amendment? The 1st Amendment explicitly protects only very specific types of expression.



The rights of the people, whether cherished by the majority or not, always have equal status regardless of who wins an election. It is not, solely, for the government to decide which rights not enumerated under the Constitution are worthy of protection and which can be freely infringed upon. The government makes laws all the time that violate rights not specifically enumerated under the Constitution and many of those laws end up being repealed by court decision. That is the way it works. For instance, the government -- elected by the people -- attempted to force parents to send their children to public schools. The Supreme Court, in Pierce v. Society of Sisters, held that parents had the right to "direct the upbringing and education of children under their control." Now obviously, the law was the majority view, yes? It came from the elected government. And the right to direct your children's upbringing and education is not enumerated in the Constitution. Using your logic, this court decision was wrong and parents do not have the right to direct their children's upbringing and education because the majority said so. But that's not how it works.

Hayleyanne, could you explain to me the difference between:

1. extending "freedom of speech and of the press" to cover expressions on the Internet or flag-burning;

and

2. extending other parts of the Constitution to cover a right to privacy.

The only difference I see is that (1) is derived from the penumbra of a single amendment while (2) is derived from the penumbras of several amendments.


Also, I'd like to hear your thoughts on my comments about the difference between "liberty" and "right to privacy".

This is incorrect. Boyd most definitely applied to the law itself:

Perhaps I made myself unclear. Yes, the law was found unconstitutional, but this law was one ordering such a seizure. Many laws overwritten by a general right to privacy, including the law in question, do not. This law made it illegal for such behavior to occur; it gave no instruction to engage in a search or seizure, by even the loosest definition, encroaching on marital privacy. Indeed, the case would not have even come up if the contraceptives had not been sold in an advertised clinic. Therefore, any argument that deals with the fourth amendment, including parts of the court's argument, is a red herring.

As I said, I believe it is appropriate to read the first amendment broadly. We know the framers intended to cover freedom of expression generally. All of these instances that both entspeak and erassmussimo cite, are indisputably individual expression. A broad reading of the first amendment protects all of these instances. But there is a difference between reading one amendment broadly and extrapolating an amorphous right like the right to "privacy" from numerous amendments.

Because the right to privacy has no root in any one particular amendment it is impossible to articulate any parameters, other than the ones that the Court creates. Right to privacy precedent has only been extended in a few instances: Griswold (birth control for married couples)--- Eisenstadt (birth control for unmarried couples) ----- Roe (abortion) and Lawrence (prohibition against sodomy).

Is there a common denominator in these cases? Does the right to privacy cover matters related to procreation? to sex? It seems like the right to privacy (at least from the precedent) relates to private sexual matters? What is the authority for this? Why should it be limited to these instances only? How far can it be extended? The problem is that we have no textual link to the constitution upon which we can articulate principled parameters. Unlike the notion of freedom of expression and association that draw their context directly from the first amendment, the right to privacy has no such context. It is subject entirely to the whims of the Court.




I don't follow your argument here erassmussimo. Arguably, anything can be rooted in our "liberty" rights. But if we read liberty that broadly, the Constitution has lost all authority as a governing document.

My studies in history have shown that there was an opposition to the Bill of Rights because it had the possible negative effect of having people read the listed rights and then assume that other rights and liberties that were not listed were then denied to the people.

I do not think that the Bill of Rights was an attempt to list all of the rights that people enjoy as individuals in our state. It was an attempt to guarantee that certain rights would be enshrined in law.

Under this logic, as I see it, the government has the burden to prove that the people do not have the right to privacy and show where in the Constitution there is a right for the government to get involved in between the affairs of a doctor and a patient. While there are times that the government comes into our privacy, this must be Constitutionally justifiable. So yes, un-enumerated rights do exist and the framers intended this to be so.

All other rights were to be reserved to the people.



from The Federalist Papers : No. 84

And we know this how? I can find nothing to indicate that the framers intended to cover freedom of expression generally. Where is your evidence to support this assertion?

We're getting into some sloshy semantics here. You think it appropriate to read the First Amendment "broadly". So what's wrong when justices read other amendments broadly? What's your standard here: broad or narrow?


Now you're drifting away from the text itself to include matters of historical context. OK, that's fine with me, but you can't have it both ways. Do we hew closely to the text itself or do we take into account historical context? Is it acceptable for justices to take into account historical context?


I demur. I think that there is no fundamental difference. "Reading the First Amendment broadly" means that we extrapolate the basic concept of freedom of the press to a general concept of freedom of expression. The text does NOT say "freedom of expression" -- it says "freedom of speech, or of the press". "Freedom of expression" is an extrapolation of "freedom of speech, or of the press". There is no fundamental difference between "reading broadly" and "extrapolating".

I agree that there are matters of degree in the extrapolation. It truly is a short extrapolation from freedom of speech to freedom of expression, and a longer extrapolation to the right to be left alone. But we are talking about a difference of degree, not of kind.


If the Court cannot draw conclusions by taking into consideration different components of the Constitution, most SCOTUS decisions would have to be thrown out. Reliance upon multiple elements of Constitution in no way weakens the logic of any decision.


I think you have a solid point here, but I believe that the difficulty arises from the magnitude of the extrapolation. A short extrapolation from freedom of speech to freedom of expression is easily managed, and can be articulated plainly. A long extrapolation taking us to the right to be left alone is harder to articulate. But again, we're talking about a difference of degree, not of kind.


OK, what if we change the wording to make it clearer: instead of "right to privacy", how about simply, "the right to be left alone"? Isn't "liberty" the same thing as "the right to be left alone"? I agree, none of this is specifically covered by the text of the Constitution. But to castigate the Court for finding liberties in the Constitution seems rather opposed to the preamble, doesn't it?

Your argument that such a reading destroys all government authority goes way to far. The Constitution clearly defines the powers of the government. Where those powers are defined, the government can trample all over the liberty of the people. But where they aren't defined (as in, say, matters of abortion), the government has to keep it's cotton-pickin' fingers outta the lives of people.


I recently had a long conversation with a retired constitutional scholar on this point and he had an interesting extension to add: that a number of the Founders thought the Bill of Rights entirely too specific. They wanted the Federal government to be toothless, figuring that a weak central government would not be able to muster the strength to trample on the liberty of the people. Central to their thinking was that the Congress would be composed of too many different interests pushing in too many directions. They simply did not anticipate that political parties would shrink down to a two-party system; they thought that there would be too many parties for any single party to dominate. In other words, he observed, the two-party system has destroyed one of the fundamental safeguards built into the Constitution.

I would like to illustrate this problem with an anecdote from my youth. In 7th grade, I used to play Four Square with my classmates. In this game, a square twelve feet on a side is divided into four equal subsquares and each of four players occupies one of the subsquares. The player in the first square is the server, who serves the ball to any player, who must bounce it into another player's subsquare, who must do the same. The ball bounces around the subsquares until one player misses; he is removed and all players in subsquares below him are promoted one square, and a new player occupies the fourth subsquare. It's a good game with lots of interesting interactions.

However, schemer that I am, I figured out a way to fix the game in my favor. I recruited my two brothers to assist me. If any one of us became server, then he'd feed easy serves to a brother, who'd then smash a non-brother. By forming a "political party", I gained a huge advantage over all other players (except my brothers). We were able to dominate the game. Wave those little flags, wear those straw hats, and release those balloons!

Unfortunately, it took only a couple of days for everyone else to form an "anti-family" party. They made sure to eliminate any of the three brothers at every opportunity. We crashed from dominance to total failure. So we recruited a few teammates from the overly large opposing team, and pretty soon the game settled down to a simple two-team game that was nowhere near as much fun as the original game. Eventually we gave it up because it wasn't any fun anymore. So much for the two-party system in Four Square. I think the same thing applies to politics. The two-party system destroys our liberties.

Perhaps I should start a new topic on this question.

Erassmussimo, it is not as simple as "broad or narrow". I think you (and others) mistakenly assume that those who criticize the finding of a right to privacy in the Constitution, are advocating a draconian method of strict construction. An originalist, or pragmatic textualist, will balance a number of factors: textual, structural and historical, when interpreting the meaning of the Constitution. A good discuss