Many of my fellow conservative are often heard lambasting the concept of the right to privacy as being a fallacy, nothing could be further from the truth.  Just because the words are not explicitly stated anywhere in the bill of rights and subsequent amendments the exsistence of such a right is easy enough to see by looking at the plain meaning of the words of the fourth, ninth and fourteenth amendments.  their protections and inhabitions create a clear and readily identifable concept of privacy that was in the monds of the men who wrote those words. The words below offer a fine insight into the view of the court on this issue when the right to privacy was first articulated.

     Justice John Marshall Harlan II famously wrote, "the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."

      On a point by point basis I will examine and explain how each of the three amendments I have noted above contribute to the exsistence of a right to privacy.  The first and perhaps most pertinent amendment is one of the two least talked about amendments of the constitution along with its companion, the 9^th.

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

     The 9^th amendment is an interesting creature, massively important, yet terribly ignored by the courts and the legal profession.  This amendment was along with the 10^th the comprimise necessary to get the Federalists to go along with the Anti-Federalists demands for a bill of rights.  To put it simply it allayed the fears of the Federalists that just because a right was not mentioned did not mean it didn't exsist.  Rather it does exsist and it belongs only to the people as only rights can.  Thus it follows that the right to privacy does indeed exsist, even though it was not specifically enummerated, and is given protection equal to the enummerated rights.

     Given that , in the words of John Adams freedoms are more inumerable than grains of sand upon a beach one must indeed tread lightly when it comes to dismissing a right just because it isn't in the constitution as it is written.

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and siezures will not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, amd particularly describing the place to be searched, and the persons or things to be siezed.

     The 4^th amendment protects people from unreasonable searches and siezures, but what is more important is what it describes as being protected.  ones person, home, papers and effects (property).  What is this but the right to privacy described in excruiating detail?  This gives people the right to be free from state interference in their lives by forbidding the state from prying into the activities of its citizens.  Except when in posession of a valid warrant the government can not violate your person, home, property and papers except in rare and very specific circumstances.  Here in plain english is the right that so many people have said is not in the constitution is right before them if they would choose to see it.

     Article 1:  All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No state shall make or enforce any law which shall abridge the privliges and immunities of citizens of the United States; nor shallany State deprive any person of life. liberty, or property, without due process of law; nor deny to any person within its jurisdiction equal protection of the laws.

     Article 5:  The Congress shall have the power to enforce, by appropriate legislation, the provisons of this article.

Note: (Articles 2, 3, and 4 deal with issues related to the civil war and former comfederates and the public debt of the US and are excluded for non-relevance and brevity.) 

     The 14^th amendments contirbution to the right to privacy is the hardest to articulate, and therefore tends to come in for the most criticism.  The basic position is that, each individual must be treated equally by the state, and the stae can not discriminate in the treatment of it's citizens by applying laws to some and not to others.  These cases sighting this facet of the right to privacy tend to revolve around things like birth control, abortion and state laws prohibiting certain types of consenual sexual intercourse.  Generally though I see the 14^th amendment as forcing the restrictions of the 4^th and 9^th amenments onto the states, as the drafters of the 14^th amendment intended.

     No one who espouses to be a conservative can not make a decent argument against the exsistance of the right to privacy, rather they revert to the charge of Judicial activism.  This is largely motivated by a desire to advance the 'conservative' (read moral) agenda on abortion and gay marriage.  Two topics about which I give exactly a damn.  I have a strong libertarian streak when it comes to what consenting adults do to themselves and between themselves.  I believe abortion is morally reprehensable, but that does not give me, or anyone else the right to tell someone else what they can do with thier body.  I want less government at every level, not more, and trying to legislate morality is simply counter productive to that goal.  I hope that this election cycle we can discard the 'moral' issues and focus on the real problems in the world today, like say terrorism and the war, or lowering taxes etc, etc.  Well enough ranting for now.

Posted by: raging tachikoma at 07:33 PM | No Comments | Add Comment
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