The "right to privacy" not in the Constitution ?

[kentuck]

A debate on C-SPAN right now discussing this topic and others. But where does this argument lead when the conservatives argue there is no "right to privacy" in the Constitution? What's the end result of such an argument? Does the government retain the right to define what your "privacy" might be? It's a scary argument.

[Cary]

1. It isn't in the Constitution, and

I believe they are referring to the "penumbras" identified in Roe v. Wade.

Nothing all that scary here, Kentuck. Freedom isn't free. The price is constant war against those who would usurp your freedom.

Sure it would be great if we didn't have neocons and fascists. But we do and we have to always keep our guard up. It all starts at the local level.

[Solo_in_MD]

12. And penumbras could vanish as easily as they came

The right to privacy is not in the US Constitution, pure and simple. Even broad interpretations can not find it if one is being intellectually honest. While I agree with the court's ruling its justification was less than scant, which gives credence to those attacking the courts for legislating from the bench.

That said privacy and other similar currently derived issues should be. It would preclude many attacks on Roe v Wade and other important freedoms. I strongly support an amendment to add it, but its been quite some time since an amendment to the US constitution actually happened. One used to hear now and then about another constitutional convention as a possibility, but nothing recently. Too many people afraid of what might happen probably. After the EU fiasco (real or perceived) I have not read about anyone pushing for one in the US,

[The2ndWheel]

2. Does government retain the right to define?

I don't know, but it certainly can define. Any centralized power can.

[Trajan]

3. The 'right to privacy' ...

is implied by the other rights enumerated by the Constitution ....

[Sgent]

4. ...

The "right to be left alone in person and possessions" as defined originally in Griswald (legality of birth control) was a right that was inferred from the equal protection clause and the combination of the bill of rights.

If Griswald were to be overturned, it would invalidate Roe and a host of other important decisions. There is even a question if Congress could enact rights not found in the constitution. For instance the Civil Rights Act and the ADA, are predicated on the "commerce clause". A court which would narrowly construe the Constitution, could likely find that those acts are outside of congressional authority for business and persons operating in only one state.

Taking the reasoning further -- only allowing rights that are in the constitution, could also imperil other current rights such as the Miranda warning and the right to an attorney in criminal cases.

These rights would then be addressable by the state legislatures, constitutions, and courts.

Its scary, but this is the world that the Scalias and Thomases live in.

[acmejack]

5. This the concept of privacy I subscribe to

snip>

"The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality -- the right to be left alone -- the most comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man's home and privacies of life."

Snip>

"Every violation of the right to privacy must be deemed a violation of the Fourth Amendment."

Justices HOLMES and STONE also dissenting, agreeing with Justice BRANDEIS in the Olmstead v. U.S. 277 U.S. 438 (1928) which upheld the right of Elliot Ness and his untouchables to wiretap the telephone lines of bootleggers as long as it was done at a point between the defendant's homes and their offices.

[rateyes]

6. I guess it's how you read Amendment IX

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

As I understand it, some of the framers did not like the idea of a "Bill of Rights" for fear that "enumerating" certain rights might lead to a belief that these are the only rights we have. That's why #9 was put in that "Bill of Rights."

I would think that the fact that there is a right to "due process," that the authorities can't come into your home without a warrant justified by evidence showing "probable cause" that you committed a crime, etc.--with the inclusion of #9---lends to the argument that there is a fundamental "right to privacy" which, by #9, cannot be abridged by law.

But, hey, that's just me.

On edit: I am wondering if, first of all, it would be a good thing to propose a constitutional amendment spelling out the right to privacy, and #2, if the Dems ought to make it a centerpiece in campaigns.

[HereSince1628]

11. What about Article IV?

[rateyes]

13. Do you mean Article IV, or Amendment IV?

I referenced Amendment IV in my post--"search and seizure."

[Missy M]

7. It seems old Rush was sure having a hissy fit when his personal...

medical records were being pursued while looking into his drug habit. You can't have it both ways with the conservatives arguing there is no right to privacy to suit their needs for the 'war on terrorism'.

[tabasco]

8. I think it's pretty much part of "liberty" to be left alone.

Of course, the end result of no privacy would be a police state with government agents being able to enter your home at will and do with your body what they wish.

The people that argue no privacy are the same shitheads that argue there's no separation of church and state in the Constitution.

When the Constitution is finally destroyed, it will be people like this that are responsible. They want to twist it and pervert it to suit THEIR beliefs. They have no respect for other Americans and their intolerance is destructive to the Nation.

[eallen]

9. The Constitution shouldn't be read by text search.

The word "travel" doesn't appear in the Constitution, yet the courts have argued from other parts of the Constitution that Americans have the right to travel throughout the US, to leave the US, and to return to the US. Some states at one time tried to impede this. Imagine what freedoms we would lose, if the limits of Constitutional argument were a text search.

[HereSince1628]

10. It's a matter of deconstructing sematics during rhetorical interplay

The sort of thing that makes for entertaining "yelling heads" punditry if you are into the political television equivalent of professional wrestling.

And RW fundamentalists get as hung up over the strict construction of words in the constitution as they do their bible.

The Bill of Rights (Article IV) suggests that we have the right to be "secure" in our persons, houses, papers, and effects unless there is probable cause to issue a warrant for a specific search of persons or things.

To almost any educated person these protections generalize into a statement about our right to keep the government out of our business, which is to say our rights to keep our lives and properties privated away from the snooping eyes and ears of the government. Surely this crystallizes into the phrase "Rights to Privacy" used in daily speech by generations of Americans.

[mcscajun]

14. The Ninth Amendment.

There was substantial opposition to even including a Bill of Rights in the Constitution during the Convention debates. Many of the founders felt uneasy about enumerating the rights of the people for fear of limiting them. They'd had no such qualms in enumerating the rights given to the government; they meant to limit the reach and power of government.

I'm paraphrasing, but one delegate spoke something like this: If we enumerate rights in a Bill of Rights, some fool in the future is going to come along and state that there are only those rights. (I wish I could find the quote; I had it a couple of months ago. :grr:)

The Ninth Amendment was meant to calm such fears and cover what could not possibly be enumerated: the rights of the people.

The Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

That is a blunt, unequivocal rejection of the anti-abortion stance on the right to privacy. It obliterates the argument that since the right to privacy is not listed explicitly in the Constitution, it must not exist.

We do have a constitutional right to privacy. The right to speak as you wish, to pray as you wish, to be secure in your home against warrantless searches or seizures, are all based on the same underlying right to be left alone by government. The right to privacy animates the entire Constitution. The drafters felt no need to state what in their minds was already so obvious.

-- Jay Bookman

http://www.democracyforillinois.org/node/1908

The Ninth Amendment had been mentioned infrequently in decisions of the Supreme Court(4) until it became the subject of some exegesis by several of the Justices in Griswold v. Connecticut.(5) There a statute prohibiting use of contraceptives was voided as an infringement of the right of marital privacy. Justice Douglas, writing the opinion of the Court, asserted that the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”(6) Thus, while privacy is nowhere mentioned, it is one of the values served and protected by the First Amendment, through its protection of associational rights, and by the Third, the Fourth, and the Fifth Amendments as well. The Justice recurred to the text of the Ninth Amendment, apparently to support the thought that these penumbral rights are protected by one Amendment or a complex of Amendments despite the absence of a specific reference. Justice Goldberg, concurring, devoted several pages to the Amendment.

“The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. . . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment…”

http://caselaw.lp.findlaw.com/data/constitution/amendment09/

[Zenlitened]

15. Wow -- this has turned into a very informative thread!

Hats off to DU for sharp thinking, as usual. Could the info here become the basis for a Demopedia entry?

:)

[jmowreader]

16. It's the Fourth Amendment, dammit!

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

A violation of privacy is an "unreasonable search," so there you go.