“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
So what do you think some of our unenumerated rights are?
My opinions:
Right to privacy - We have a right to be free of the government watching us in our private lives.
Right to self-defense - We have a right to protect ourselves, our families, and our property from criminal acts.
Right to vote - I believe there is a general right to vote and not just the right to vote as defined by the 15th, 19th, and 26th Amendments.
Right to education - We have the right to educate our children as we wish.
Right to buy and sell property - We have a right to not just own property but also to transfer ownership.
Right of movement - We have the right to move about the country as we wish and to leave the country when we wish.
Right to receive information - We have not only freedom of speech and freedom of the press but also the right to hear speeches and read the press.
I’m not saying all of these rights are absolute. Some might be generally restricted in certain extraordinary circumstances or individually lost via due process. But I feel these are rights that exist and the government should have the burden of proof before restricting any of them.
Comments on any of the items I’ve mentioned? Additions to the list?
I believe that privacy is a natural element of security within the context of the fourth Amendment; there is no true security without also having privacy. Nevertheless, security is broader than privacy. For one, analyzing 4th amendment issues would be different.
For instance, some courts say police can attach the GPS to your car because you have made your car visible to the public. I think this idea would have to go by the wayside if we analyze under security rather than privacy. Secure in your property must mena exclusive control over the property.
I think it is a great injustice to narrow “security” to “privacy.”
I’d argue that a right to privacy is broader than a right to be secure from unreasonable searches. That right is essentially a right related to criminal charges - saying that your private life cannot be used as evidence against you in court. But a more general right to privacy would say that the government couldn’t look into your private life for other reasons.
In addition a general right to privacy would prohibit the government from enacting any laws which would violate that right. An anti-sodomy law for example would be unconstitutional because it would require the government to violate your privacy to enforce it.
I’m not sure that works. There would still be other ways of proving that a violation occurred, within the rules of evidence. For instance, suppose that two people committed an illegal act, and then one of them goes to the police and gives evidence it happened.
After all, an awful lot of murders occur in a “private” context: in private homes, behind closed doors. If privacy were as absolute as you suggest, murder would become as legal as sodomy…
(I’m not equating the two in any moral sense, I hasten to add, and I definitely favor the existence of the right to privacy as a non-enumerated right!)
Right to Life-You have no right to take someone’s life not in self-defence.
Right to Property-You have the right to keep what you own
Right to Liberty-You have the right to be free and not be coerced
But murder has an effect in the public sphere. If you kill somebody in your home, their death exists outside in the rest of the world. But if two consenting adults want to engage in some deviant sexual act, it doesn’t leave their bedroom. So the government shouldn’t be able to enter the bedroom to check on what’s happening in there.
My personal opinion people should have the right to consume marijuana or any drug as they wish. But I can’t claim there is a consensus with me on this.
If I were asked to define a distinction, I’d say there is one between actions which occur in privacy and objects which are possessed in privacy. An action is limited within a specific space in time - when you’re not doing it, it doesn’t exist. But a physical object like a marijuana plant has an ongoing existence independent of the person who planted it. So society can argue that a physical object is not encompassed within an individual’s right to privacy.
Little Nemo: I promise you I am not nitpicking just to nitpick… But…
What about sodomy…with a child? The action is private, but society maintains a public interest in the health and protection of underaged persons… As you note with murder, some apparently private actions fall into the public sphere because of their consequences.
(Actually, I think I agree with you a lot more than it might seem!)
I think that a good majority of people reading this would hold marijuana to be harmless, or so close to harmless as to make decriminalization a good idea. But I think you are right to exclude possession of objects from “privacy” per se, because of the existence of objects which are not harmless. Hard drugs, poisons, disease vectors, radioactive materials, fully-automatic firearms, explosives, etc.
I also think the Constitution provides a very nice compromise, in requiring probable cause for a search. The cops can’t just go out on a fishing expedition, hoping to find illegal stuff; but if someone goes as far as to swear before a judge that a particular house is full of illegal stuff, then privacy can legitimately be infringed.
(The case of GPS tracers placed in a suspect’s car is a fascinating gray-area case! I think any reasonable person here could argue both for and against that.)
The point is that murder or rape aren’t private acts. They involve a victim. They’re no more private than driving your personal vehicle down a street 100 mph while you’re drunk. The distinguishing characteristic of privacy is “no outsiders are involved” not “I own the property this is occurring in”.
Some people would just as strongly contend that sodomy causes a moral breakdown in society leading to unnatural and deviant thoughts about sex pervading society hurting families and children, etc. (Note: I disagree with this)
It seems that there is no bright line test. What I might think is a purely private act, you see a society impact caused by it and vice versa. The problem that I have with recognizing a “right to privacy” is that it only protects what 5 justices on the Supreme Court think it ought to protect. It is a broad, undefined term with no meaningful bounds.
The Ninth Amendment has always been a bit player in our national discussions, and I’ve never understood why. I realize that it’s vague - some say so vague as to be meaningless - but, really, if it means anything at all it should mean that we have a right to privacy in its broadest sense. That would mean consensual sex of any kind (minors can’t consent), drug use that doesn’t pose a threat to others, etc.
I sometimes wonder how different our country would be if the right to privacy had been explicitly listed somewhere in the Bill of Rights.
There’s a whole movement based on the Tenth Amenment, so why not one based on the Ninth?
But who has the authority to give it any substance? Whom would you trust to say what’s in it and what isn’t?
I don’t think it would have been within the conceptual grasp of even the most intelligent 18th century intellectuals. Our problems with privacy are based largely on modern technology and economic and demographic issues that simply didn’t exist back then.
To the extent that certain things were considered private, it wouldn’t have occurred to them to do something to ensure that they stay private simply because given the world that they lived in, they just were naturally private.
To the extent that it would have necessarily encompassed things like sex and drug use, I think that it’s largely wishful thinking to believe that such a consensus would have existed back then.
The vagueness is the problem. Anytime the Ninth Amendment is invoked, it’s going to be a battle of “yes, it is” and “no, it isn’t” with no resolution possible.
You and I can say that a right to privacy is obviously an unenumerated right. But somebody else can equally argue that a right to privacy is not an unenumerated right. Which side is correct?