On NPR on the way home the guest said that we were guaranteed the right to privacy in the constitution. I’m not doubting him - he was a (I think) law professor at Stanford.
I’m just wanting to know which part of the Constitution guarantees it.
“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.”
That’s about it. Some Supreme Court decisions created a “right to privacy” out of one word in the Fourteenth Amendment - “liberty”. That’s about as tenuous as you can get.
Some judges have also argued that the Third Amendment implies that there is a broader general right to privacy. But that could just be because they felt sorry for the Third Amendment and wanted to make it feel better about itself.
And of course, there’s always the good old Ninth Amendment. Or at constitutional scholars like to call it, the Mystery Amendment.
There’s also the underlined relevant part of the Fifth:
Notice that this reaches well beyond “taking the Fifth” on the witness stand; one may not be compelled, coerced, or IIRC duped into making a statement which tends to incriminate himself. One cannot be compelled to take some actions which would tend to incriminate oneself. And a few related immunities.
I do not believe that is a fair summary of the pro-“Right to Privacy” argumets, though I’ll let one of the pros discuss it.
Terr, I am no fan of the “Living Constitution,” crowd.
But this is not a fair summary of the right the privacy family of cases.
Griswold v. Connecticut, 381 U.S. 479 (1965), is the ancestor of the doctrine. In striking down a state law that forbid the selling of contraceptives, the Court’s majority said that the right to privacy was in the Constitution… not written, as such, but found in the “penumbras” and “emanations” of the protections spelled out in the Fourth and Fifth Amendments.
“penumbras” and “emanations”… It’s as if they are caricaturing themselves.
You are of course welcome to your opinion, if you choose not to recognize that the right to privacy is implied by other rights in the Constitution.
However, based on that logic, nothing in the document prevents the federal government (or any government) from requiring the registration of all firearms, or prohibiting concealed carry. The Second Amendment guarantees the right to keep and bear arms. It says nothing about the right to do so privately.
The same could be said of possession of any other materials protected by the First Amendment.
“Emanations” and “penumbras”. Laughable.
No, it doesn’t. That’s why there is registration of firearms and why concealed carry is not allowed in quite a few places. What’s your point?
No, these are real important concepts. They’re the underlying foundations of the rights that are explicitly listed.
For example the right to bear arms. Is that all it is? Simply a right to carry a weapon? Of course not. The right to bear arms implies that you have the right to purchase a gun. It implies that you have to purchase ammunition. It implies that you have the right to shoot a gun. It implies that you have the right to defend yourself. It implies you have the right to prevent a crime from being carried out. None of these things are explicitly included in the Second Amendment or any other part of the Constitution. But without these implied rights, the right to bear arms would be meaningless. So the explicit existence of the Second Amendment implies that these other rights also exist.
Same thing with a right to privacy. If you didn’t have any right to privacy then there would be no reason for you to have a right to refuse to let a soldier be quartered in your home. He’s not taking your life or your liberty or your property by sharing your house - he’s taking away your privacy. So the fact that the Third Amendment exists implies that you have a right to some privacy.
How is “right to privacy” not just a restatement of what the Fourth Amendment says? If my person, house, papers, and effects can’t be searched unreasonably, doesn’t that mean they’re pretty private?
It’s entirely possible to infringe on your privacy without searching anything. For example, if the government demanded that you make a detailed accounting of all previous sex partners, that would be an infringement on your privacy accomplished with no search on their part. Also, the government can bend the language a bit and insist that surveillance and searching are two distinct activities, and that surveillance is in no way limited by the Fourth Amendment. ‘Plain language’ is never all that plain, and ‘Original intent’ leaves you up a creek whenever the technology involved becomes much more advanced than a flintlock or a peeping Tom.
Terr, do you view selective incorporation of the Bill of Rights with as much contempt? Do you wish your state had the ability (within the confines of its own constitution) to establish a mandatory state religion? To ban any and all firearms from its borders? To allow its state and local police to conduct extensive searches for any reason the police deem necessary and with no judicial oversight? Do you earnestly believe that states should decide for themselves what constitutes cruel and unusual punishment–and use any of those methods as it sees fit with no intervention?
If you find these questions absurd, then could you please point to the section of the Constitution that applies the Bill of Rights against the states? In particular, what section of the Constitution do you find permits selective incorporation?
Can you distinguish that type of Constitutional reading from your disdain for the discerning of the right to privacy? No? Perhaps then, you should spend some time reading *Griswold *before blathering on about caricatures–lest you become one.
Selective incorporation - yes. It should have been total incorporation - as per Hugo Black.
None. The Fourteenth Amendment permits total incorporation. Not selective.
You forgot to point to the text of the Constitution that directly incorporates the Bill of Rights, or failing that, to distinguish the legitimacy of permitting one interpretation of the Constitution but not the other.
The Fourteenth Amendment. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The Bill of Rights is clearly what “privileges or immunities of citizens of the United States” are.
There is no Constitutional justification for “selective incorporation”. Either the Fourteenth extends those rights to all or not (and it does). The idea that it extends only some rights and not others is not supported by anything in the Constitution.
And I’d agree, but now let’s go tell it to the Chief Justice and majority. Unless Justice Thomas somehow prevails one day and Privileges and Immunities are revisited, that opinion’s worth $4 less than a Starbuck’s latte, and Bricker has the Law on his side. We can shout from the highest mountain that it’s wrong, and keep fighting the good fight – hey Plessy took six decades to be reversed, but the Slaughter House Cases are going on a century and a half and remain there.
As to privacy, the simplest thing would be to say it’s one of those Rights Reserved to the People, but that’s too simple too. IMO it’s one of those things that ***now ***seem so bloody obvious that some people say, “sure, why would they have needed to write it down explicitly? What is private is private, duh.” But there’s also a matter of the fact that ever since, with the cultural changes that accompanied the Industrial Revolution, and specially the rise of Utilitarian Ethics, a notion of privacy has arisen that is different from the mores of the late 1700s - one that is centered on the idea that the collective is not entitled to have me answer for such individual behavior as does no harm. That if within our own home and at our own expense my wife and I want to consort using contraception that is NOT society’s business. That as a private person there is NO entitlement for anyone to take pictures of what my children are doing in the back yard and publish them with an address tag. That my personal papers and communications should be secure not just from state interception without a warrant, but also from being used to satisfy any other citizen’s mere curiosity. How can you be a free citizen and have no expectation of some sort of sphere of individual autonomy that you rule, and for which you are not accountable to another citizen’s demand to observe or intervene?
IANAL but it seems to me the very existence of the Reserved Rights clause is an acknowledgement that the text of the Constitution is not the sole source and root of “rights” – heck, a whole lot of the political dialog involves the notion that Rights are something inherent to the human condition (God-given, for one particular side of the debate) and that the Constitution does not create them but just tasks the government with protecting them. And the Reserved Rights clause neither explicitly commands nor forbids the Law protecting those other rights, but I’m of the school of when in doubt, protect the individual’s freedom.
Not really. Apart from anything else, there are obviously privileges and immunities enjoyed by citizens of the United States which do not appear in the Bill of Rights.
Well, the problem is the Slaughterhouse cases, then.
I certainly don’t disagree that those were wrongly decided, if that’s his position.
Penumbras and emanations also allow us to have an airforce, which is kind of cool.