The right to Privacy

Tuesday, October 18, 2005
No such thing you may say.

A good deal of the controversy over Miers these days seems to hinge on this issue.

Does the Constitution acknowledge a right to privacy?

The ninth amendment states "the enumeration in this Constitution of certain rights, shall not be construed to deny or disparage others retained by the people."

In the Supreme Court decision on Griswold vs Conneticut, state law prohibiting the use of birth control in marriage was trumped by the right to privacy as established by the Court.

This Connecticut law had been challenged earlier in Poe v Ullman on the grounds that it denied plaintiffs due process, but it was decided that the plaintiffs lacked the standing because the law had not been enforced in many years.

Estelle Griswold opened a birth control clinic to dispense contraceptives. She was arrested and convicted under the state law.

The Supreme Court overtuned the conviction citing the ninth amendment. However, the Court's analysis was limited to married couple.

Later this case would be used as precedent for Roe V Wade.

I feel the court took a leap in the latter decision because I do not believe that abortion is just about birth control. However, I have noticed that many conservatives are not only interested in overturning Roe v Wade, but they do not believe the Supreme Court should have overturned Griswold either.

Can the state, federal or local, tell consenting adults what to do in our homes? Is this consistent with libertarian values?

37 comments:

David Thomson said...

“.. but they do not believe the Supreme Court should have overturned Griswold either.”

You’ve got that right. I am all for the legalization of contraceptives. However, the Constitution does not deal with the matter. We therfore should allow the voters of each state to decide the matter. The reasoning behind Griswold and Roe vs. Wade should frighten you. Ever read George Orwell’s famous essay on Politics and the English language? This would be a great time to do so.

http://www.resort.com/~prime8/Orwell/patee.html

The majority in each U.S. Supreme Court case employed arguments that were utterly absurd. Legal scholar Raoul Berger was personally pro-abortion, but considered the abortion decision to a judicial abomination.

“Can the state, federal or local, tell consenting adults what to do in our homes?”

The answer is an unhesitating yes. Our cultural values condemn any agreement between consenting adults where one kills and eats the other. Please don’t laugh. Such an incident occurred in Europe just a few years ago. Am I pointing to an extreme example? Of course. It is these atypical situations where the consensus opinion demands that the state step into adult relationships.

terrye said...

David:

Perhaps I was not clear.

I think the state law in Conneticut was a ridiculous and unenforcable law. Therefore I support overturning that law.

I do think there is a difference between a woman using birth control and cannibalism.

We have the second amendment giving people the right to bear arms. That does not mean they have the right to take a gun to a highschool and threaten people.

I think conservatives will lose on this. I really do. I don't think it is right to allow some kid to get an abortion and not tell the parents based on a "privacy" issue, however, I don't think it is right for the state to tell that kid's parents what they can and can not do in terms of birth control.

Surely we can manage a compromise. This is where scholars have done us harm. Common sense dictates a difference here and the fact that intellectuals have made this issue so convoluted is just another reason to be a real practicing attorney on the court.

David Thomson said...

“I think the state law in Conneticut was a ridiculous and unenforcable law. Therefore I support overturning that law.”

So do I. It just was not the role of the Supreme Court to overturn the law. This was the duty of the voters of Connecticut. It’s not merely a question of how to reverse well established laws. We must choose the right way of doing so. Griswald was the abominable decision which found “penumbras” and “emanations” in the U.S. Constitution. Results are not the only things that matter. How we get from point A to point B is also of utmost importance. Claiming that the end justifies the means opens the door to judicial abuse in the future.

terrye said...

david:

Well then I guess it is ok to levy a poll tax against the black people of Mississippi or Alabama.

It is ok if a Mormon in Utah wants to have five wives.

No???

I don't doubt that there are arcane laws on the books in states all over the country, much like the law in Conneticut.

My understanding is that the Constitution which many of us are bound to protect and defend is the primary source of law.

In other words no state, not Conneticut or Utah or Alabama can take away the rights of an American citizen because our rights are not given us by the states at all. They can not take away what they do not give.

Did anyone ever ask the people of Conneticut how they felt about the issue? Not that I know of.

flenser said...

terrye

"Did anyone ever ask the people of Conneticut how they felt about the issue? Not that I know of."

Actually, yes. The people of Conneticut elected the people who passed the law. If they disliked the law, all they had to do was elect different people who would have repealed the law.

"My understanding is that the Constitution which many of us are bound to protect and defend is the primary source of law."

That's not correct. The primary source of the law is "we the people", who in theory create all the laws under which we live. That includes the Constitution.

There some some people, who call themselves libertarians, who have adapted the notion of "natural law" because they think it gives them the results they prefer. Typically these people are atheists or non-religious, which is amusing considering the concept of natural law was first developed by leading members of the Catholic church, especialy St. Thomas Aquinas.


The Ninth Amdt reserves rights to the people, not to the the courts or judges. It's a popular fiction that the role of the courts is to be the defender of indivdual rights. That role is not granted to the courts anywhere in the Constitution.

MeaninglessHotAir said...

"It is ok if a Mormon in Utah wants to have five wives."

Why not?

I draw a distinction between having five wives and cannibalism.

MeaninglessHotAir said...

flenser,

What the whole Clinton fiasco made clear to me is that the Constitution isn't worth the paper it's printed on unless the people are willing and able to support it.

When something in the Constitution disagrees with what the people think they want, then it goes by the wayside.

flenser said...

MHA

I agree. If the people are good, we will have a good society. If not, we won't. No written document can allow us to escape that simple fact.

terrye said...

flenser:

I get it.

In the first attempt to overturn the law, Poe v Ullman the court said it was not worth pursuing because the law had not been enforced for years.

If the people of Conneticut were so keen to make condoms illegal why weren't they insisting that this law be enforced?

When it was enforced it went to court and was overthrown. So far as I know there were no mass protests to bring it back.

The ninth amendment does not say anything about state law. It is very short. It says only that the enumeration in the Constitution of certain rights, shall not be construed to deny or desparage others retained by the people.

What you are saying is that if the state passes a law taking away someone's right to buy birth control then they must get the legislatures to write another law overturning it. If they can. Or throw them out.

I am saying they do not have the right to pass that law in the first damn place. The legislatures are not only bound by some fleeting fancy of people at the time [whether it be religious intolerance or bigotry] they are bound by the limits placed on them by the Constitution. Issues like due process and the fourth amendment are not optional.

I grew up in the south and if it had been left to the states black people would not have the right to vote to effect those state laws. It took the intervention of the federal government to give those people the rights the constitution says are theirs.

I don't want an activist court but at the same time we have an obligation to our fellow Americans to make sure they have due process and are not abused by a state stepping outside its bounds.

And while I may not believe in late term abortions or whatever I do not want some absolutist deciding what my rights are. If Republicans try to bring back arcane laws which limit the rights of individuals in ways that most people will not tolerate they will lose big time.

The Courts are there for a reason, they have a function. If they had no right to overturn a law deemed unconstitutional the founding fathers would have limited their power and scope.

I do think Roe v Wade was a mistake, but considering the mindsets of people on both sides of the issue I don't know if there is a good answer.

flenser said...

terrye

"I am saying they do not have the right to pass that law in the first damn place."

I understand that. But I am saying that they do and did have the right to pass that law.



"Issues like due process and the fourth amendment are not optional."

Nobody said they were. But the laws in Conneticut did not infringe on anyones due process or fourth amendment rights.



"If Republicans try to bring back arcane laws which limit the rights of individuals in ways that most people will not tolerate they will lose big time."

Yup. Thats exactly what David and I have been saying. In which case, why do we need the courts to step in and decide for us what rights we have? Why do we need to courts to balance one persons rights against anothers?



"What you are saying is that if the state passes a law taking away someone's right to buy birth control then they must get the legislatures to write another law overturning it. If they can. Or throw them out."

Well, me and the founding fathers, but yes, that is the general idea that this country is based on. Why do you think it is a bad idea?

terrye said...

flenser:

So you are saying that our rights are dependent on the state we live in?

So if the state of Conneticut wants to make it a crime for a man to use a condom can they kick down the door to make sure whether or not he is wearing one or not? Exactly how do they enforce this piece of tyranny?

I think that the Roe V Wade law was a mistake, but if I thought for one minute that supporting a strict constructionist meant that people's private lives would be dictated without any sense of minority rights or due process then I would start thinking that maybe the Democrats have the right idea.

After all I keep hearing that the point of stopping the courts from legislating from the bench is to ensure our rights.

It sounds like you are saying the point is to make sure that the state can limit my rights.

I don't much care for that.

Seneca the Younger said...

Flenser, I think you're arguing past the point Terrye is making. She's not arguing that the "emanations and penumbras" argument was a good one, but rather she is arguing --- with, I think, some justification --- that the Ninth Amendment should be interpreted to restrict the States from limitations on personal rights, just as the Federal Government is.

This isn't considered bad law in some contexts: we don't doubt, for example, that the First Amendment, restricts the various States' rights to limit the freedom of speech, the press, and the exercise of their religious beliefs.

(Actually, I'm not at all clear on why you believe the States ought to have the right to restrict cannibalism either.)

terrye said...

seneca:

Thank you, that is right.

The founding fathers made it plain that our rights are not gifts from the state. They are endowed to us, and the state can not take away what it can not give.

flenser said...

Seneca

I've argued the Ninth Amdt to death elsewhere, and I don't propose to do so again here.

The short answer to your question is that, if read as you propose, the Ninth is not a restriction on government. It is a tool by which the government can micro-manage every aspect of human existence. That is clearly contrary to both the letter and the spirit of the Ninth Amdenment, which seeks to reserve rights to the people, not to the government.

In other words, rather than saying "All these matters are none of the governments concern", your reading changes the meaning to be "All of these matters are in fact solely the concern of government. If you want to know what your rights are, ask the government. But your answer may vary over time."


In order to recognize this, you simply need to acknowlege that the courts are in fact "the government", not some entity standing outside of it. Oddly, this proposition is treated as controversial by many.


Anyway, there is a long thread here discussing the meaning of the Ninth if anyone has an hour or so to kill.

I think the true answer to the Ninth Amdt discussion lies in exploring the differences between natural law and positive law. I expect to have a post up on the topic in the next day or two, and no doubt a lively debate will ensue.

flenser said...

terrye

To return to the original discussion, where do the founding fathers claim that there is a "right" to purchase contraceptives? My copy of the Constitution is missing that.

Can you tell me what other rights we have? Is there a list somewhere, or do we simply have whatever rights the Supreme Court says we do?

For example, in the town I live in, there is a local law prohibiting people from barbecuing on their porches. Is this a violation of peoples rights?

Did you know that it is actually against the law to ride a horse on I-95? Is that a violation of peoples rights? I could ask millions of these, but you get the idea.

vnjagvet said...

There is an old aphorism that states, "hard cases make bad law". Griswold was just such a case. The result is plainly right. The Connecticut legislature stuck its nose where it didn't belong.

Now suppose you are on the Supreme Court of the US. What do you do? Poe doesn't help because the court deciding that case ducked the issue. But Griswold teed the validity of the statute up so you couldn't duck.

Consider these facts about Griswold:

There were but two dissents.

If you were guessing two conservative Justices dissented, you would be wrong.

The lone dissenters were Black and Stewart.

The conservative Harlan and White each wrote separate concurring opinions, as did the liberal Goldberg.

There were no less than six opinions written, each with a different wrinkle.

Every opinion expressed disdain for the goals of the statute in question.

The only thing that is clear from reading these opinions is that this was a very difficult case to resolve, whether the judge was "conservative" or "liberal".

Which of the six opinions comes closest to the "conservative" view of the constitution?

Which of the six comes closest to the "liberal" view?

I honestly do not know the answers to those question.

I would like to hear arguments.

Rick Ballard said...

Here are all the opinions.

I'll be happy to provide an argment as soon as I figure out that little liberal/conservative question.

terrye said...

flenser:

Chief Jsutice Roberts said that the right to privacy is protected in the Constitution in various ways.

He also said: "I agree with the Griswold court's conclusion that marital privacy extends to contraception."

You are saying that the only rights I have are the ones stated explicitly in the constitution. For instance it does not say that I have the right to birth control therefore such a right does not exist.

I am saying I have a right to life, liberty and the pursuit of happiness and if you limit my right to birth control you will be limiting my right to liberty.

I also said there are all kinds of arcane laws out there that were passed by legislatures. Which makes your horse reference seem kind of strange to me. It seems to me you are saying that legislatures can pass any law they like.

flenser said...

vnjagvat

"Every opinion expressed disdain for the goals of the statute in question."

Well, isn't that special?

Regardless of the "goals of the statute", was it unconstitutional? That would seem to be a more pertient question than whether the justices personally "disdained" it or not. At least, it ought to be, if we are a nation of laws.

The reason we are in the situation we are in, is that the Supreme Court has gotten into the habit of striking down any law for which they have personal disdain.

I suppose thats a good way to run an empire or a monarchy, but I'd hope for something a little more intellectually stringent in our republic.

flenser said...

terrye

"You are saying that the only rights I have are the ones stated explicitly in the constitution. For instance it does not say that I have the right to birth control therefore such a right does not exist."

No, terrye, that is not what I am saying, at all.

I am saying that the Federal government has limited powers. It cannot tell you that you have no right to birth control. It cannot tell your state that you do have a right to birth control. It has no say in the matter. End of story.

If you and the people of your state want to enshrine the right to birth control in your state constitution, that is your right, in the genuine meaning of the term.

You have whatever rights the rest of the people in your society say you have, just like I do. It is not the role of the Supreme Court, or any court, to announce "rights" on its own initiative. The Constitution does not empower it to do so. If you would like to address that point, which I have made several times, please go ahead.

I see you did not bother to answer my questions from before. Thats a bad sign. It suggests that you think your "constitutional rights" should be whatever you want them to be.

I have no idea if Roberts thinks Griswald was decided correctly or not. I suspect the answer is "not", but no judge being grilled for a SCOTUS seat is going to say that, if wants to get confirmed.

vnjagvet said...

Flenser:

The "disdain" point was meant to let all know that this was a tough case because all the Justices recognized they were considering a stupid law in which a state legislature was acting like a stupid nanny.

Given that, even most of the "conservative" judges (including the highly respected John Marshall Harlan, revered among conservatives) found in the Constitution something with which to overturn criminal convictions based on that statute.

Instead of railing against generalities, why not read the opinions and tell us which one you most agree with and why.

I warn you, it was probably written by a judge condemned by some of the Miers critics as "liberal".

terrye said...

flenser:

Roberts made it plain that he believes the right to privacy extends to contraceptives in marriage.

The Federal government may be limited, but so is the state. The state is just as capable of overstepping its bounds as any other branch of government and Griswold was a bad law.

The mistake prolifers have made is that they tied their hopes of overturning Roe V Wade to the idea that there is no right to privacy inherent in the Constitution. They made this mistake because the Roe V Wade decision was tied to Griswold.


I am saying the original law was wrong, the justices who decided that are far more knowledgable than I am and their decision had nothing to do with abortion.

Seneca the Younger said...

I've argued the Ninth Amdt to death elsewhere, and I don't propose to do so again here.

Um, flenser, if you think "I argued this before elsewhere so you can just assume my assertions are correct" is going to pass here, you should probably check with a competant physician.

The short answer to your question is that, if read as you propose, the Ninth is not a restriction on government. It is a tool by which the government can micro-manage every aspect of human existence.

Hmmm. So it would appear that by asserting the Ninth amendment constrains the powers not only of the Federal Government but of the various states, I'm proposing an interpretation that would give the government power to micromanage everything.

Sorry, I think you're going to have to try that argument again too, because I don't think barely-controlled derisive laughter was really the effect you were looking for.

Rick Ballard said...

Vnjagvet,

I'll take Black's dissent. It has nice lyrics and it's easy to dance to.

The clarity both of language and the underlying logical process are extraordinary when compared to the linguistic and legal gymnastics performed in the majority opinion(s). The opinion embraces the humility that I truly hope for in any justice. It also argues very persuasively for a "clear intent" reading of the Constitution that any originalist would have to agree with.

Thank you for the suggestion. I hope that you find time to write about other SC decisions that you believe would be of interest to us.

Terrye,

I would never, ever cede authority to a judge on the theory that s/he possessed a higher degree of knowledge or wisdom than I do on anything pther than the law.

MeaninglessHotAir said...

it strikes me that there is a clear distinction between the Constitution, which is a framework for laws to be made in, and the laws themselves. Sort of like Russell's Type I and Type II sets. It seems clear enough that there might be laws made which fall outside the framework and are therefore illegitimate. The Constitution contains a serious gap because it does not specify what is to happen in that case. All the problems trace back to Marbury vs. Madison, because, by arrogating to itself the right to review any law whatsoever, the Supreme Court has in effect placed itself outside of the framework of the laws. From that point on the politicization of the Court was unavoidable.

The Constitution, in my reading of it anyway, seems to indicate yet a third level of laws or rights, the natural rights which cannot be abrogated by either the legislatures or even by the Constitution itself. This notion of natural rights is in fact older than the Catholic Church itself, going back to the Stoics and to Cicero. Though the Constitution makes veiled reference to such rights it does not spell them out. That also leads inevitably to a politicization of both the Court and even the Constitution itself.

Is the right to a condom a "natural right"? Is the right to a gun a "natural right"? Is the "right" to free health care a "natural right"? Only your commissar(ess) knows for sure.

flenser said...

"Um, flenser, if you think "I argued this before elsewhere so you can just assume my assertions are correct" is going to pass here, you should probably check with a competant physician."

Um, Seneca, I think you need to lose the delusions of granduer, quickly.

I indicated where I discussed this before, in some detail. I'm not going to repeat it all for you here. Show a little initiative and follow the link. Or is that too difficult a task for our resident engineer?




"Hmmm. So it would appear that by asserting the Ninth amendment constrains the powers not only of the Federal Government but of the various states, I'm proposing an interpretation that would give the government power to micromanage everything."

Hmmm. So, it would appear that logical thinking is not your stong suit? How, exactly does giving the courts the power to (a) decide what rights we have and (b) the power to decide in a unilateral fashion which rights trump which, act as any sort of "constraint" on the state? To a casual observer it might seem to have exactly the opposite effect.

You are aware, are you not, that the courts are in fact the state?




"Sorry, I think you're going to have to try that argument again too, because I don't think barely-controlled derisive laughter was really the effect you were looking for."

Chum, the day I see you make a cogent argument, I'll start to worry about what you think.

Until then, I'd recommend expending a little more effort on trying to make your own arguments, and a little less in laughing, derisively or otherwise.

vnjagvet said...

Rick:

Hugo Black practiced law off and on for 20 years before he was elected Senator at age 40, except for a few years as a police court judge. He was educated at University of Alabama Law School, and did not attend college.

He was an avid supporter of FDR's New Deal, and was appointed to the Court from the Senate when he was 50 years old. Despite having some connection with the Ku Klux Klan, he was confirmed, and later became, with Justice Douglas, an anchor on the liberal wing of the Court.

He was primarily known for his eloquence in advocating an absolutist view of the Bill of Rights, and, through incorporation by the Fourteenth Amendment their application to limiting the activities of all of the States.

As you noted, however, he was a literalist, and he would not read implied rights into the Constitution. Griswold is an example of the latter part of his jurisprudence.

There is no question, however, that Justice Black became an icon of liberal law professors, and of liberal law students when I was in school.

flenser said...

vnjagvet

"The "disdain" point was meant to let all know that this was a tough case because all the Justices recognized they were considering a stupid law in which a state legislature was acting like a stupid nanny."

I don't disagree with that assessment.

But you have yet to indicate why you think the courts are entitled to strike down laws, simply on the basis that they are "stupid".

I think I've made it clear that I do not think that the courts can strike down laws on those grounds. If you really want, I'll write a long comment spelling out why. Do you really want me to do that?

The short version is that "stupidity" is in the eye of the beholder. The people who wrote the law presumably did not think it was stupid. On what basis do the courts presume to judge laws for "stupidity"? I would think that raising tax rates to 95% would be stupid, for example. But I'm hardpressed to see how a court could strike it down on that basis. In doing so, is the court not usurping the legislative function?

If you have read the opinions in Griswald, the above will tell you which opinions I agree with.

To turn your question back to you, can you explain the justification for the courts "substantive due process" jurisprudence? To many people, many of them constitutional lawyers, this appears to be built with smoke and mirrors. How does the admonition that nobody be deprived of rights without due process become transformed into a doctrine for determing rights?

flenser said...

MHA

Where do you see veiled references to natural rights in the Constiturion? Maybe it depends on how thick the veil is, but while the Declaration suggests the existence of natural rights, I'm not sure the Constitution does.

Rick Ballard said...

"There is no question, however, that Justice Black became an icon of liberal law professors, and of liberal law students when I was in school."

I don't doubt it for a minute but I doubt that it was based on his dissent on Griswald. Was all of his writing so clear?

MeaninglessHotAir said...

flenser, I'm referring to the Ninth Amendment specifically but to the whole tenor of the document in general. I agree with this quote from your citation:

"the founders believed that all rights are recognized but not created. The founding premise of this nation is that we are all endowed with rights which pre-exist governments and that the purpose for which governments are formed is for the protection of those rights. All rights, therefore, are recognized by government, not created by government. The constitution is “a charter of power granted by liberty, not a charter of liberty granted by power”, as Madison said."

But this is all dangerous, undecidable territory. If I say I have certain rights and you disagree, where does that leave us?

vnjagvet said...

Flenser:

I suspect you are missing an unspoken premise in my comments. I am not advocating any one of the opinions in Griswold. I am attempting to show, by concrete example rather than platitudinous generalities, that labels are somewhat misleading when analyzing judicial philosphies at the level of those making up the SCOTUS.

"Conservatives" of 100 years ago were those justices that decided Lochner, Pierce, Coppage, Adkins and Meyer. These justices used notions of natural law and substantive due process to strike down state laws regulating female employee hours of work, child labor, and other "progressive" social legislation of the type eventually passed during the New Deal of the thirties.

Those conservatives were so conservative that FDR wanted to add justices of his selection to the court so as to water down their influence. By definitions of that day (and probably today), the judges he eventually appointed to replace the "nine old men" were "liberal". There was no problem with his doing so, as the new deal Democrats overwhelmingly controlled the Senate.

Black, Reed, Douglas, Frankfurter, Murphy, Jackson, Byrd, Burton were all stalwart new dealers.

While Frankfurter later became known as somewhat conservative, his jurisprudence remained constant throughout his twenty three years on the SCOTUS bench. Douglas and Black were considered at the liberal end of SCOTUS' spectrum for well over 30 years into the 1970's. They were liberal even for the Warren Court!

Harlan and White, on the other hand were generally considered on the Conservative end of the Court. Harlan has been considered the intellectual father of conservative judicial philosophy. White (along with Rehnquist) dissented in Roe, for example, even though he was appointed by Kennedy. Yet Harlan and White were on the majority in Griswold.

Black, the quintessential "liberal" was unwilling to allow his disdain for the statute in question to overwhelm his reading of the Constitution. This was true even though his supposed ideological clone wrote one of the most broadly worded "liberal" opinions in the history of the Court.

I think that is somewhat ironic. It is also instructive on the difficulty of reading tea leaves when a court is confronted with a "hard case".

BTW, Stewart, who dissented in Griswold, was in the majority in Roe. Go figure.

flenser said...

vnjagvet

I understand your point about conservatives and liberals on the court. As you know, I'm sure, there exists both a natural law and a "positive law" wing on the right today. I realize that these terms cover judges on both the "left" and the "right" though.

Having reviewed the thread, I don't see any discussion of conservatives and liberals on the courts, platitudinous or otherwise, so while I agree with the gist of your remarks I still don't see what they are getting at. Yes, many natural law judges were conservative. JRB is a modern version of this type of justice. As you see, I'm skeptical of the idea of judges applying the concept of natural law to their work. That has nothing to do with whether I consider them to be conservative or not. It's the process I find dubious, not neccessarily the outcome.

Well, I'll put up a post on it tomorrow and then you are free to tell me where I am wrong.

Or go
here to have a look at my take on Jaffa.

Knucklehead said...

DT,

It just was not the role of the Supreme Court to overturn the law.

Well, given Marbury vs. Madison it is clearly the SCOTUS's role to overturn laws that do not survive judicial review.

One can, of course, disagree with Marbury vs. Madison but its existence, and its precedence, say that the courts may indeed overturn laws.

The question then becomes how the courts should go about overturning laws without writing laws in the overturning. It seems clear to this knucklehead that the role of the courts is not merely to interpret law but to render judgment upon the the "legality" of laws.

What the courts seem to do, unfortunately, is sometimes rewrite the laws they sometimes overturn. That is, as far as I can tell, beyond the scope of their jurisdiction. They can tell us some particular law is "illegal" but they should refrain from telling us what the law "should" look like.

Part of the problem with activist courts is their propensity to offer "guidance" that, in effect, is indistinguishable from legislating.

Syl said...

Okay, neither here nor there, I guess. But I think what 'rights' we have for privacy should look at 'unreasonable search and seizure' and make the unreasonable part stricter. :)

Also, oh brainy ones. Where's our 'right to know'?

terrye said...

Syl:

I guess it is there along with the right to not have to worry about uptight puritans burning you at the stake because you were heard talking to your house cat.

Seneca the Younger said...

"Hmmm. So it would appear that by asserting the Ninth amendment constrains the powers not only of the Federal Government but of the various states, I'm proposing an interpretation that would give the government power to micromanage everything."

Hmmm. So, it would appear that logical thinking is not your stong suit? How, exactly does giving the courts the power to (a) decide what rights we have and (b) the power to decide in a unilateral fashion which rights trump which, act as any sort of "constraint" on the state? To a casual observer it might seem to have exactly the opposite effect.

You are aware, are you not, that the courts are in fact the state?


Flenser, this interpretation is one of two things: self-contradictory, or asserting that there are no constraints, either "natural" or Constitutional, on the power of the State. Consider, as an example, the Second Amendment, which states "Congress shall make no law...."

Let's assume this actually has some meaning similar to what the words appear to say. Then it states a positive constraint on the power of the State to enact, by legislation, a restriction on the right to bear arms.

But how, then, is that constraint to be enforced? In the US Constitutional system, it's done by the judiciary, by the Courts. By your reasoning, since this is done by the State, it is not a constraint on the power of the State. Thus it appears you assert that the notion of an enforceable constraint on the power of the State, save possibly by revolutionary violence, is self-contradictory.

But then ... your complaint appears to be that by allowing the Courts to enforce limitations on the power of the State, this leads inevitably to unlimited power to the State.

I suppose it's a valid position logically to assert that it's both impossible to limit the power of the State by agreement and still to believe that the power of the State should be limited, but it seems essentially uninteresting: you might as well say that we ought be governed by six foot pink bunnies from Venus.

I also sense that you think you're making some conclusive point.

So let's take it in small pieces: first, exhibit an example of a limit on the power of the State that you believe is enforceable somehow, by someone, other than through violent revolution.mgcnlyo