Constitutional scholar Pete Donaldson, a loyal reader in Texas, kindly sent me the column, below, on whether there exists in the U.S. a constitutional right of privacy.
The writer's position is that there is such a right, but not as a constitutional right. He states why the Court was wrong to have asserted that there was in 1965 when Justice William O. Douglas, writing for the Court, in Griswold v. Connecticut, held that there must be a right to privacy because privacy is what the Constitution protects in four amendments.
The first was the 3rd Amendment which prohibits the government from quartering troops in the home (in violation of the home-owner's privacy), the 4th Amendment proscription against warrantless searches w/o probable cause, the 5th Amendment protection against extracted confessions, and the 9th Amendment's recognition that there are unenumerated right that must not be denied or disparaged because not listed in the text.
Douglas also relied on two earlier decisions, Pierce and Meyers, in which the Court held unconstitutional state laws prohibiting parents to send their children to Catholic school (anti-Catholicism was strong in some parts of the country in the 1920s) or to school to study the German language (during and after World War One, against Germany, anti-German feeling was strong). Parents have the right to direct the upbringing of their children, the Court held, and government may not interfere with these private decisions.
The writer of the article believes that the Court is wrong to develop new rights. See whether you agree. I note that he proposes the introduction of a new privacy amendment, but does not suggest any text. How would such an amendment read, I wonder. Would it pass? Would the Bill of Rights pass, today? Don't count on it.
If you put the Bill of Rights up for a vote today it would probably go down in flames after a big fight, because it protects too much controversial stuff such as flag-burning, abortion, foul language, hate-speech, religious displays in the town square and city hall, etc.
Perhaps the bill you'd like to submit to the people for a vote will have a number of exceptions to help draw more votes.
What exceptions will you include in your amendment bill?
Will there be a principled basis for your exceptions, or will you just list your personal list of dislikes?
Is the writer cagily insisting on an amendment which he feels confident will never pass? Is this a veiled way of killing an important existing right by making an impossible 'modest proposal'?
Perhaps we should leave good, or bad, enough alone:
Thought of you when I read this in yesterday's Houston Chronicle.
Pete Donaldson
http://www.chron.com/cs/CDA/ssistory.mpl/editorial/outlook/3587727
Jan. 14, 2006, 6:46PM
UNACCEPTABLE ARGUMENT
Figment of imagination
----------------------
There is no constitutional right to privacy. Call a national referendum
to settle the issue
By JUDGE HAROLD R. DEMOSS JR.
In this season of politicized and contentious confirmation hearings to
fill vacancies on the U.S. Supreme Court, some of the sharpest debate
and disagreement concerns a so-called "right of privacy" in the U.S.
Constitution.
The advocates of a constitutional right of privacy speak as though that
right were expressly stated and enumerated in the Constitution. But the
text of the Constitution does not contain the word "privacy" or the
phrase "right of privacy."
Consequently, in my view, a constitutional "right of privacy" could
only be unenumerated and is therefore a figment of the imagination of a
majority of the justices on the modern Supreme Court. Let me explain
why.
Webster's Dictionary defines "enumerate" as "to name or count or
specify one by one." Roget's Thesaurus states that the synonyms for
"enumerate" are "to itemize, list, or tick off." Adding the negative
prefix "un" reverses the definitions or synonyms so that "unenumerated"
means not named, not counted, not specified, not itemized, or not
listed.
The right of privacy is unenumerated because neither the word privacy
nor the phrase right of privacy appears anywhere in the Constitution or
its amendments. Nor does the text contain any words related to other
rights the Supreme Court has found to derive from that right, including
the right to an abortion and rights related to sexual preference.
Neither "abortion" nor "sexual preference" appear anywhere in the text
of the Constitution.
The idea of a constitutional "right of privacy" was not even recognized
by the Supreme Court until 1965, when Justice William O. Douglas used
the idea in writing for the majority in Griswold v. Connecticut, where
the court concluded that a state law criminalizing the use of
contraception was unconstitutional when applied to married couples
because it violated a constitutional right of privacy. That was 176
years after ratification of the Constitution, 174 years after
ratification of the Bill of Rights and 97 years after the ratification
of the Fourteenth Amendment.
In his opinion, Justice Douglas cited cases that he maintained, "bear
witness that the right of privacy which presses for recognition [in
Griswold] is a legitimate one."
Note the phrase "which presses for recognition." That phrase reveals
that the right of privacy, that is still hotly debated by the American
people today, was first recognized by the Supreme Court in this
opinion. Note, also, that if the right of privacy had been "named" or
"listed" or "specified" or "itemized" in the Constitution, there would
have been no need for it to "press for recognition" in this opinion.
What the Supreme Court was really doing with such language was
interpreting some of the specific prohibitions enumerated in the Bill
of Rights as indicating the existence of a general right of privacy
that is not expressly written, and then finding a new specific right,
i.e., the right to use contraceptives, as an unstated part of the
unstated general right of privacy.
This same technique was used by the Supreme Court in 1973 in Roe v.
Wade, in which the majority stated:
"The Constitution does not explicitly mention any right of privacy. In
a line of decisions, however, going back perhaps as far as [1891], the
court has recognized that a right of personal privacy, or a guarantee
of certain areas or zones of privacy, does exist under the
Constitution. In varying contexts, the court or individual justices
have, indeed, found at least the roots of that right in the First
Amendment, in the Fourth and Fifth Amendments, [and] in the penumbras
of the Bill of Rights.
"This right of privacy, whether it be founded in the Fourteenth
Amendment's concept of personal liberty and restrictions upon state
action, as we feel it is, or as the district court determined, in the
Ninth Amendment's reservation of rights to the people, is broad enough
to encompass a woman's decision whether or not to terminate her
pregnancy."
Just substitute "a woman's right to terminate her pregnancy" (Roe) for
"a married couple's right to use contraceptives" (Griswold) and the
Supreme Court again found an unstated specific right within the
unstated general right of privacy. Note also that the Supreme Court
admitted in the first sentence of the above quotation that "the
Constitution does not explicitly mention any right of privacy." I think
my use of the adjective "unenumerated" in this context is both accurate
and appropriate.
The court's choice of the word "penumbra" and the phrase "penumbras of
the
Bill of Rights" in these opinions is revealing.
According to Webster's, penumbra comes from two Latin roots: paene,
meaning almost, and umbra, meaning shadow. The meaning of penumbra, as
stated in the dictionary, that is relevant to our understanding of the
Supreme Court's opinions regarding the Bill of Rights is "an outlying,
surrounding region."
So the use of the word penumbra by the Supreme Court should be
understood to mean that in the court's view the right of privacy exists
somewhere in the region that surrounds and lies outside of the Bill of
Rights.
But there is absolutely nothing in the text of the Bill of Rights about
any such surrounding or outlying area, nor is there any catch-all
phrase (like "other similar rights") indicating that the rights
specifically enumerated exemplify a larger class of rights that were
not enumerated. Consequently, whatever rights might be found in the
phrase exist only in the mind, contemplation and imagination of each
individual reader and are not part of the constitutional text.
Some proponents of a constitutional right of privacy insist that it can
be found in the liberty clause of the Fourteenth Amendment. But the
liberty clause of the Fourteenth Amendment is identical to the liberty
clause in the Fifth Amendment; and just as in the case of the Bill of
Rights, neither the word "privacy" nor the phrase "right of privacy"
appear anywhere in the Fourteenth Amendment, much less in the liberty
clause.
The fact that the Supreme Court has said that the right of privacy
could come from the First, Fourth, Fifth or Fourteenth amendments is
solid evidence that the court is just guessing about where it does come
from.
The Supreme Court's actions I have just described amount to an attempt
to amend the Constitution rather than an interpretation of its text.
Let me explain why.
There are two ways to amend a document like the Constitution:
(1) you can delete words that already exist therein; or (2) you can add
new words not previously included.
The latter is what the Supreme Court has done, and this action differs
fundamentally from the court's legitimate task of interpreting and
applying existing words and phrases like "cruel and unusual
punishment," "due process," "public use" and "establishment of
religion" that appear verbatim either in the text of the Constitution
or its amendments.
But the Constitution does not give the Supreme Court the power to amend
the Constitution. Neither the Supreme Court (the judicial branch) nor
the president (the executive branch) is mentioned in Article V of the
Constitution, which defines the process for amending the Constitution.
As defined in Article V, the power to amend lies with the American
people, acting through the Congress and the state legislatures. It is
"We, the people, of the United States" who are expressly denominated as
the acting parties in our original Constitution who "do ordain and
establish this Constitution for the United States of America."
Likewise, in our Declaration of Independence, one of the truths we
declared to be self-evident is that "Governments are instituted among
men, deriving their just powers from the consent of the governed."
Our first president, George Washington, put it this way in his farewell
address to the nation in 1796:
"The basis of our political system is the right of the people to make
and to alter their constitutions of government.
"If in the opinion of the people the distribution or modification of
the constitutional powers be in any particular wrong, let it be
corrected by amendment in the way which the Constitution designates but
let there be no change by usurpation; for though this in one instance
may be the instrument of good, it is the customary weapon by which free
governments are destroyed."
Similarly Chief Justice John Marshall wrote as follows in his historic
opinion in Marbury v. Madison:
"That the people have an original right to establish, for their future
government, such principles as, in their opinion, shall most conduce to
their own happiness, is the basis on which the whole American fabric
has been erected.
"From these, and many other selections which might be made, it is
apparent, that the framers of the Constitution contemplated that
instrument, as a rule for the government of courts, as well as of the
legislature."
The Constitution does speak to the circumstance of unenumerated rights
in the Ninth and Tenth amendments. The Ninth Amendment in simple plain
English says, "The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the
people."
The right of privacy is not one of the rights enumerated in the
Constitution, and consequently, the Ninth Amendment gives us two
instructions: first, we are not "to deny or disparage" the existence of
a right of privacy simply because it is not enumerated in the
Constitution; and second, we are required to recognize that any such
right of privacy is "retained by the people."
Clearly, a right of privacy exists at some level, but it has not been
made subject to the Constitution unless and until the people act to
make it so.
Likewise, the Tenth Amendment simply states, "The powers not delegated
to the United States by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively, or to the people."
The Constitution does not delegate to the Supreme Court (or any other
branch of the U.S. government) any power to define, apply, or enforce
whatever may be the right of privacy retained by the people. Similarly,
the U.S. Constitution does not prohibit any state in particular, nor
all states in general, from defining, applying or enforcing whatever
the people of that state may choose as the right of privacy. Therefore,
as the Tenth Amendment clearly provides, the power to define, apply or
enforce a right of privacy is "reserved to the states respectively, or
to the people."
By finding a constitutional right of privacy that is not expressly
enumerated in the Constitution, the Supreme Court has "usurped" the
roles and powers of the people, the Congress, and the state
legislatures.
Shed of all semantical posturing, the critical issue becomes: Does the
U.S. Constitution permit amendments by judicial fiat?
Some argue that the Constitution must be a "living, breathing
instrument" and that it is right and proper for a majority of the
Supreme Court to decide when, where and how the Constitution needs to
be changed so as to be "relevant to modern times."
These folks operate on the premise that the Supreme Court is infallible
and omnipotent, and that once the Supreme Court has spoken, there is no
way to change its ruling.
I disagree with that view. But we as a society must decide which view
should prevail.
On several occasions the Supreme Court has held that Congress does not
have the power to change by legislation a prior Supreme Court decision.
Similarly, nothing in the Constitution instills the president with the
power to do so. Therefore, to remedy the "usurpation" by the Supreme
Court as to a "right of privacy," we must go to the highest authority —
the people.
Thus, the ultimate remedy to this controversy lies not with the
individual members of the Supreme Court, but with the people whose will
could be expressed in the form of a national referendum either
affirming or rejecting the Supreme Court's actions.
Such a national referendum would be a win-win situation. For those who
support the power of five justices to amend the Constitution as they
see fit, it would afford the opportunity to demonstrate that a majority
of the people in each of a majority of the states agree with the
Supreme Court and that therefore, the right of privacy should be
treated as a part of the Constitution, just as if it had been adopted
by the amendment process in Article V.
On the other hand, for those of us who believe the Supreme Court has
usurped the power of the people to consent or not to consent to a
constitutional change, a national referendum would afford the
opportunity to demonstrate that a majority of the people in each of a
majority of the states reject the power of the Supreme Court to make
constitutional changes.
The will of the people would then override any judicially fabricated
constitutional amendment, and the right of privacy would not be treated
as part of the Constitution.
This referendum could be called by Congress and placed on the November
2006 ballot for Congressional elections.
This controversy has been brewing for more than 30 years with little
sign of resolution. The best thing would be to settle this controversy
one way or another as quickly as possible by a vote of all of the
people.
As a U.S. citizen, I respectfully petition the Congress to call a
national referendum to permit the people to just say no or yes to the
Supreme Court's usurpation of the power to amend the Constitution. I
invite others who share my views to do likewise.
DeMoss practiced law in Houston for 34 years before being appointed in
1991 by former President George H.W. Bush to the 5th U.S. Circuit Court
of Appeals, where he now serves.
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