Interesting Argument
Today, I heard a very different take on why the word “Privacy” doesn’t exist in the Constitution. A lot of people have argued that there is no right to “privacy” guaranteed in the Constitution, others have felt that it is there, but found in the “penumbra” (aka implied but not directly stated).
However, I heard a historian speaking today, and he pointed out that, at the time that the Constitution and Bill of Rights were being written, the word “Privacy” was generally used with regard to toilet functions. The outhouse (or if you were lucky, indoor bathroom) was called the “Privy”, and the way one excused oneself to use the facilities was to announce “Excuse me, but I need a moment of privacy”.
According to this historian, the word “privacy” did not take on its current meaning until the early 20th century, and that prior to that time, what we now call “privacy” was referred to by other terms, one of which was “security”.
As a result, this historian argues that the right of privacy is EXACTLY spelled out in the Constitution, in Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
He argues that the word “secure” in this context is exactly akin to our current use of the word “private” or “privacy”.
I’m not a historian. I can’t confirm or deny what he has to say. But it sounds reasonable, and certainly sounds more in line with what I believe to be the core values of this country than the argument that privacy, not being specifically mentioned, is thus not a right guaranteed.
(Nevermind Amendment IX which, as I’ve previously said, explicitly says that just because we aren’t expressly given a right by the Constitution doesn’t mean we don’t have it. When I get a chance, I have some issue to take with a statement by Justice Scalia that goes, in my opinion, directly in opposition to the intent of the Constitution.)
Liam.
posted by Liam at 7/21/2005 04:45:00 PM
11 Comments:
Liam, the wording clearly states "against unreasonable searches and seizures shall not be violated". How does this equate to a woman's "right" to kill her unborn child? While your answering that, how about the rights of the unborn child "against unreasonable searches and seizures"?
Thursday, July 21, 2005 7:59:00 PM
Um... at what point did this turn into an abortion discussion?
OK, I agree that that's ONE place the term "privacy" has been discussed. FAR more often lately, it's been used by people suggesting that some of the more odious aspects of the Patriot Act are not unconstitutional.
So I think you're showing a bit of your own bias with regard to this comment.
To be clear on a couple of things:
1) I am not in favor of abortion. I have a problem with restricting it in cases where the mother's life is at risk. And I generally think that it ought to be used as a last resort, and then with careful consideration between a woman, her doctor, her partner and her religious beliefs.
2) From a legal standpoint, I absolutely think that the arguments used in Roe were... sketchy at best. There are far better reasons in the Constitution (IMO) to come to the conclusion they did than "privacy". This doesn't mean I think it was the right decision, nor that I'm happy with it or unhappy with it on its face. However, I do think that there are much better arguments to be made in Constitutional favor of the decision made than the right to privacy.
Nevertheless, my concern is with what appears to be an increasing number of people who feel that the Constitution should be read strictly, exactly, and that anything not found in there is not a right.
So all I was trying to get at here was twofold. First, that asserting that a right to privacy is "judicial activism" because it isn't spelled out may NOT be a valid argument, and second (as I've said earlier), that Amendment 9 explicitly makes it clear that just because a right is not explicitly enumerated does NOT mean it doesn't exist.
Liam.
Thursday, July 21, 2005 10:25:00 PM
Liam,
You apparently have a point which you think you have made. It escapes me. Even after you comment above. What danger does this discovery of yours put us in?
Friday, July 22, 2005 12:19:00 AM
My point?
My point is simply what I said, that I found it interesting that so many arguments of late have centered around the right to privacy, and how SOME people seem to think that A) it isn't in the Constitution, and B) because it isn't there, it isn't a right.
My point is that A) it may well actually BE there (which would invalidate the whole counter argument) and B) even if it isn't, Amendment IX gives lie to the neocon standard line which seems to be "If it's not literally stated in the Constitution, it's not a right", because the Constitution itself says that there ARE rights which are not specifically listed.
Look, both I (a centrist) and my wife (fairly strongly Republican) feel that the current political climate is (by design or by accident) eroding away our personal liberties and freedoms. We both find it frightening, and we have actually had serious discussions on the topic of how much worse we're willing to let it get before we decide that this country has been hijacked away from the greatness it once had, and is no longer a place we want to live or raise children.
No, we're not there yet, but yes, we both feel we're a lot closer than some people seem to feel. And it has nothing to do with there being a Republican in office. It has to do with THIS Republican and his neo-conservative pals and the Congress that has given up it's Constitutionally mandated "Advise and Consent" role in favor of a rubber stamp policy for just about anything the President wants.
Why do I care. That's a question I get asked a lot. Why should I care if a suspected terrorist can be searched without a warrant or shipped off to Guantanamo Bay and held without trial or charge? After all, I'm not a terrorist, it will never affect me, right?
But the falacies in that are huge. First, it assumes that any human being can be trusted with that kind of power and never once either abuse it or even make a mistake. Second, it assumes that there will never be a terrorist who happens to share my name, making for the possibility of a case of mistaken identity. When no such search and seizure ability exists with the government, no one is at risk. Once you open the door for any exceptions, the potential exists for some government official to read my blog, decide that my public disagreement with the President is sedition and decide that's sufficient grounds for calling me a potential terrorist.
Far fetched? Certainly. But our laws are in place to protect the innocent, even if it means that occasionally the guilty must go free. It's what separates us from the old Soviet Union.
So, what have I discovered that made it worth posting this to my blog? I could just say "something I thought was interesting, and heck, it's my blog". But in fact, when I believe our freedoms, our rights, and our nations greatness are actively being worn away, I think it's very important to recognize chinks in the other side's argument-armor and to publicize them. If, by publicizing this as a source of a guaranteed right of privacy in the Constitution, we can ultimately fend off one or another of the eroding personal liberties here, then it's worth having done.
If you don't agree with me, that's fine. But I take comfort in knowning that those who would claim I have no rights but those explicitly spelled out in the Constitution may have to contend with a guaranteed right of privacy that they didn't previously recognize was there, and also need to figure out how that viewpoint can reconcile with Amendment IX.
Liam.
Friday, July 22, 2005 12:56:00 AM
P.S. Having read that to Janet, she says I speak for her and may sign her name to it as well.
Friday, July 22, 2005 12:57:00 AM
Liam, reading your 2nd to last comment concerning your concern about whether or not this is the right country to raise your children, I, in my younger days had many of the same thoughts for what actually seems to be the same reasons. Government getting too large and taking too big a chunk out of the economy and ruling our lives. But my approach to the solution was not the same as yours is at present. My approach is smaller government on the Federal level except in those items specifically designated to it by the Constitution; all others granted the States and the People. That makes me a conservative. Funny how some descriptions fit both sides when they are serious about things. By the way, before you change Countries, be sure to visit your next Country of choice and study it well. Even though the grass might look greener, be sure the color doesn't rub off after you get there.
Friday, July 22, 2005 10:01:00 AM
Absolutely, if we decided it was time to expatriate, we would look carefully at where we wanted to go. Gut reaction is Canada, but we'd certainly do a lot of research to make sure it was really any better than what we have now. Canada has the benefits of being fairly United States-ish, speaking English, and being still within fairly easy traveling distance from our families, so we could still go and visit them. It of course has some down sides as well (the first of which being that it's apparently quite hard to get permission to work a permanent job there, if you aren't a Canadian citizen, which takes some time to become).
But the thing is, what you say is your solution is actually not that far from my own solution. It differs where the devil lives, in the details.
I agree with smaller Federal government. I agree with more rights to the States and the People, especially the People. I disagree with what seems to be the prevailing opinion of the Republican party that rights are GRANTED to citizens, when in fact I believe the intention of the Founding Fathers was that they be ASSUMED unless expressly revoked by the government for the good of society (and with the consent of the citizenry).
I further believe that the Constitution is intended not as a roadmap to which rights citizens have, but expressly as a map of which rights the Federal government has any jurisdiction to regulate, which the State government has any jurisdiction over, and which are inviolate.
I think the major failing of the document (if it has one) is that it doesn't differentiate very well between the last two categories. I think it's fairly clear on what IS the Federal government's jurisdiction, and it clearly says anything not expressly granted to the Fed is expressly NOT a Federal power. I think that the mistake a lot of people make is in assuming that the same is true for citizen's rights, when in fact it is clearly stated that this is NOT true.
And I think it is absolutely the place of the Supreme Court to determine when a State has overstepped its authority, and this is the area where I think there is the most gray area (roe v. wade, for example). Abortion CLEARLY is not a right the Federal government has any jurisdiction over. The question is whether, in the absence of a clear directive in the Constitution, that leaves it as an unenumerated right belonging to the Citizens or one to be regulated by individual states. Note that in overturning Roe v. Wade, abortion would not become illegal, it would merely be on the table again for individual states to decide if THEY wanted to make it illegal.
Nevertheless, the Supreme Court of the country DOES have jurisdiction in making that determination, because while APPLYING a certain law may not be the purview of the Federal government, determining where the Constitution allows that law to be applied by someone ELSE (i.e. the individual states) actually IS.
I really don’t want this to become a debate over abortion, however. My point continues to be that rights in this country are not granted by the government (Federal or State). They are assumed to exist, and only REVOKED by enumeration.
This makes for much more murky waters, which is where a lot of the contention arises, but a strict interpretation of the Constitution as a definitive list of the rights a person has in this country is NOT the solution, because the Constitution itself says that it is not that.
Liam.
Friday, July 22, 2005 11:28:00 AM
Just answering your last statement in your last comment for I believe it to be true that the Constitution itself says that not all of the rights inherent to "the people" are mentioned in the Constitution but I further state that that is why we have a representative republic!
Friday, July 22, 2005 3:17:00 PM
I'm not sure I understood your last comment. Are you agreeing or disagreeing with me that the Constitution clearly indicates that the absense of a right in the enumerated list found therein does not indicate that that right does not exist?
One aspect of this debate which I haven't really touched on yet is the aspect of protecting the minority from the majority. There's a lot of that philosophy in the Founder's discussions, making sure that although we have a democracy, that doesn't mean that the majority should be able to suddenly decide that they're going to beat up the minority and take their toys.
For example, there are CLEARLY more poor in this country than there are rich, but that doesn't mean that the poor can fairly band together and vote in a law taking the wealth of the top 5% and distributing it equally among everyone.
The same protections exist for practitioners of minority religions. We have a tempered democracy, which is supposed to be predicated on freedom from infringement of rights first and democratically decided issues second.
Not that this answers your comment, but it popped into my head, so I thought I'd say it.
Liam.
Friday, July 22, 2005 3:58:00 PM
Just to clear it up, and I'm sorry I wasn't more specific I do believe that the Founding Fathers mean't that just because a right is not mentioned in the Constitution that it does not exist. I also further believe that that is why they left us with a Representative Republic so that the elected officials can decide by voted law what is a right and what is not a right. That responsibility is NOT for 5 or more unelected Supreme Court Judges.
Friday, July 22, 2005 6:59:00 PM
I'm having trouble getting Blogger to let me post right now.
However, my response to this is really a post unto itself, so I've decided to post it as such.
When Blogger will again let me log in to the core site, look for a post entitled "The Role of the Supreme Court".
Liam.
Friday, July 22, 2005 9:04:00 PM
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