The Right to Privacy and the Constitution

It is true that the Constitution does not say anything about protecting any right to privacy, individual or otherwise. Many on the conservative end of the political spectrum dislike this and would rather not have courts “create new rights” that have to be protected by and from the government at any level. Strict Constructionists will say that we should interpret the Constitution strictly by what the actual words-on-parchment say and nothing else.

I have lot of sympathy for strict constructionism, but there is a small (okay, huge) problem with that. Parts of the Constitution are extremely vague. But we don’t actually have to abandon strict constructionism in the case of privacy rights.  The explanation requires some historical background.

In 1787 it became clear that The Articles of Confederation weren’t working as a plan for a national government. In fact, the Articles were so weak, that it would be a stretch to refer to that government as “national.” In modern terms it was more akin to NATO or the European Union or a combination thereof. A convention was called to consider amending The Articles and that convention ended up scrapping them in favor of what is now our Constitution.

The Constitution was very much a product of the political Enlightenment that had been going on for some time, as much as the Declaration of Independence had been. The basic premise behind the Constitution was that the people were putting together a structure for self-government, and in contrast to the feudal/monarchical structures they were used to, this government would have no powers at all unless they were explicitly granted to it in the document. Does the government need to levy taxes? Then we need to give Congress the power to lay taxes. The executive will be tasked primarily with executing the laws passed by Congress and running the military. They also wanted to be sure that there was no equivocation about certain powers that were not granted to Congress and they spelled out explicitly a number of things that they didn’t want the government to do.

Would the government have the power to establish a state religion? It wasn’t specifically forbidden but it also wasn’t explicitly granted either. And what Congress would puposely infringe the right to free practice of religion or to peaceably assemble? Surely no Congress would ever do that. But that wasn’t enough for lots of folks, so much so that some states made their ratification contingent upon a Bill of Rights being added to the Constitution. They wanted certain rights of the people spelled out ahead of time so that there would be no question about whether the government was allowed to do certain things. Essentially, they wanted to add to the list of forbidden actions.

And thus was born the Bill of Rights, a list of some of those unalienable rights mentioned in the Declaration of Independence, but more specific than “life, liberty, and the pursuit of happiness.” This was a list of rights that we already have and so the articles were written in the form of “Congress won’t infringe on this right or that right.” So when people tell you that the Constitution or the Bill of Rights give us our rights as citizens, don’t you believe it. What the Constitution and the Bill of Rights do is give us protection of those rights against a government that was a lot stronger than the Founders were exactly comfortable with.

And so, I would argue that privacy is one of those rights that we have always had and that are inalienable. Is there really any one who thinks that we ought not be protected from government intrustion into our personal decisions? Shouldn’t I have the right to speak to my friends without worrying that the government is listening in? Shouldn’t my wife and I have the right to decide for ourselves the size of our family and what steps we will or won’t take to hit that target? Yes, there are some decisions that should not be considered legitimate (e.g. taking someone else’s newborn from the hospital) and there are legitimate disagreements about those edges, but really, most of that discussion is nobody else’s business, particularly not the government’s business.

I have heard strict constructionists argue, however, that if we want to have our privacy rights protected by the Constitution that we should write an amendment and get it ratified. I wouldn’t be against that, as a matter of fact, since I do believe that this is a right that needs and should have Constitutional protection, but as a matter of fact, it is just not necessary to go to the trouble of a new amendment.

The Bill of Rights came about because of a fear of strict constructionism. The Constitution contained vague statements like the “necessary and proper” clause which said that Congress had the power to enact any law that was necessary and proper to promote any of the foregoing powers enumerated in the Constitution. Unfortunately “necessary” and “proper” are in the eyes of the beholder. Also, a majority that believes something is both necessary and proper can do great damage to a minority, as we saw in the post-Reconstruction South. Segregation was considered to be both necessary and proper and so it went on for quite a long time despite the deprivation and violence it put on the African-American community in the South.

Having the Bill of Rights does not prevent the government from enacting laws that infringe on these God-given (or “creator endowed” if you will) rights but by explicitly listing the rights that we have, we provide an additional set of guidelines by which to judge what is proper, if not necessary.

But there was further worry. By listing a set of rights, couldn’t it be argued that these were the only rights that had such protection? Well, obviously yes, because this is exactly the argument of strict constructionists who complain about the Supreme Court “finding new rights” in the Constitution, the amendments, and the “emanations of penumbras” (or maybe that was “penumbras of emanations”) of the Bill of Rights. The person who said to me that if we want a constitutionally protected right to privacy we should do a new amendment. The authors of the Bill of Rights anticipated this very argument and to head it off, provided us with the Ninth Amendment:

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

In more modern terms “This is not an exhaustive list.” This is not ambiguous. The Authors of the Bill of Rights explicitly shot down the idea that the only rights that deserve Constitutional protection are those that are explicitly mentioned in the Bill of Rights. We the People retain additional rights beyond those listed in the first Eight Amendments and those rights are not to be denied or disparaged just because the Founders didn’t anticipate that the government would try to tell us who we can or can’t sleep with, what we can do with them when we do sleep with them, or whether we should be allowed to procreate. They didn’t anticipate that the government would have the power to listen in on any private conversation they wanted because they didn’t anticipate that those conversations would be carried long distances by wires or radio waves. They didn’t anticipate people might have means of preventing pregnancy beyond abstinance.

I’m willing to discuss whether privacy deserves Constitutional protection. I’m willing to discuss the boundaries beyond which privacy should not be protected. But don’t tell me that privacy shouldn’t be protected because of a lack of reference to it in the Constitution because you don’t have a leg to stand on.


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