Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“When the people find that they can vote themselves money, that will herald the end of the republic. Sell not liberty to purchase power.”     Benjamin Franklin

August 31, 2006

The Right To Privacy

by Brad Warbiany

One of the most contentious bits of Constitutional jurisprudence in history has been the “Right to Privacy”. Some say it’s not there at all, as the word “privacy” never even appears in the document. Some say it flows out of penumbras, formed by emanations. I wish I had a clue what the heck that means. The real answer is much, much simpler, but if followed, throws the whole system on its ear. That answer flows straight out of the idea of Natural Rights, and is expressed by a portion of the Constitution that is roundly ignored, the Ninth Amendment:

Amendment IX – Construction of Constitution. Ratified 12/15/1791.

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

Of course, without an enumeration, it is difficult to understand exactly what sort of rights are protected by the Ninth Amendment. Is a “Right to Privacy” hiding in there? How about a “Right to Polygamy”? Perhaps a “Right to Animal Sacrafice”? Who knows what we might find in there? Could this possibly have been what the Founders intended?

I think it is. The Ninth Amendment, coupled with the Tenth, the Constitutional framework of listing enumerated governmental powers, and later the inclusion of the Fourteenth Amendment, is meant to convey a very specific idea. Where the Constitution has given the government the power to act, it may act, within certain limits. Where the government does not have the power to act, the people are free to exercise their liberty without intrusion.

Perhaps it would be best to start at the beginning. The Ninth Amendment was written as a part of the Bill of Rights in general. At the time of the Founding, many suggested that we did not need a bill of rights, in that the government’s powers were limited. But James Madison, father of the Constitution, did not agree:

It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent; because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the government was established. Now, may not laws be considered necessary and proper by Congress, for it is them who are to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary or proper; as well as improper laws could be enacted by the state legislatures, for fulfilling the more extended objects of those governments.

Would it be right for our government, in response to the enumerated power of punishing counterfeiting of currency, to ban freedom of the press? It would not be necessary, but if Congress is both the writer of the laws and the judge of necessity, the protection against Congressional overreach is not there. The Bill of Rights is intended as a second line of defense against the evisceration of the necessary and proper clause. But there is a problem whenever you enumerate a specific bill of rights, which Madison clearly understood:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.

The clause he mentions, which clearly was the precursor to the Ninth.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

It is clear that the Constitution was written with several lines of defense against giving the government wide powers. It is also clear that the constitution was written to further restrict the latitude of government’s action even when performing their enumerated powers. The Ninth Amendment was intended as one of these second lines of defense to protect individual liberties (natural rights) not expressed in the previous amendments.

Every one of those lines of defense have been breached, and the government has stopped considering most limits on its power. The Supreme Court has been complicit, and instead of acting to guard our rights, has granted the government the benefit of the doubt, or a presumption of constitutionality, to its actions. The presumption of constitutionality means that instead of requiring the government to prove that restricting our liberties is required to enforce a law is “necessary and proper” to the operation of an enumerated power, it is the citizen’s responsibility to show that the legislation encroaches upon an enumerated right in the Bill of Rights, or encroaching on one of those penumbras, formed by emanations, that the Supreme Court has deemed a “fundamental” right. The Ninth Amendment is ignored.

The Supreme Court has become the arbiter to pick and choose which rights are fundamental, and considers only those rights to be safe from government’s power. Even so, they have eviscerated some enumerated rights, by not striking down certain portions of McCain-Feingold, by holding the 2nd Amendment to be “non-incorporated” by the 14th, and in their decision to ignore private property rights against the abuse of eminent domain in Kelo. Kelo is a key example of the presumption of constitutionality, in that the Court simply take the local government’s word for the fact that the takings met the standard of “public use”.

The Right to Privacy is something that the current court has considered as an exception to the presumption of constitutionality. Due to current jurisprudence, however, to affirm the Ninth Amendment, and the reasoning behind its inception, would be affirming a much wider level of liberty and a much more narrow grant of government power than our current government recognizes. Thus, they must rest on the idea of “penumbras, formed by emanations”, resting on the first, third, fourth, fifth, ninth, and fourteenth amendments. They cannot claim that the government doesn’t have the power to make an infringement of liberty in this sense, they must craft a “new” fundamental right to protect a liberty they support. Their desire to maintain the presumption of constitutionality while still enforcing their desired social goals puts them in a very precarious position, and the house of cards that is our Constitutional jurisprudence gets one story taller.

There is another way, though. I was recently reading— a major impetus for this post, actually— Randy Barnett’s book, Restoring the Lost Constitution: The Presumption of Liberty. In it, he argues that through the evisceration of the necessary and proper clause, the privileges and immunities clause, the interstate commerce clause, and then the Ninth Amendment, we have strayed far from the original intent of the Constitution, and have found ourselves with a toothless document filled with holes. The suggest to reverse course would be to return to the days when we presume that the government cannot infringe upon liberty UNLESS they demonstrate that to do so is both necessary (not “convenient” but necessary) and proper (in the service of an enumerated power). Instead of a presumption of constitutionality, we should return to a Presumption of Liberty.

The Founding Fathers certainly believed in a Right to Privacy, insofar as they didn’t believe the government had a legitimate purpose to be doing anything which might infringe upon it. In our current Constitutional jurisprudence, the Right to Privacy is an exception to unlimited government power. If we returned to a Presumption of Liberty, the Right to Privacy, along with a host of other rights and liberties, wouldn’t be an exception at all, it would be would be the standard.

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4 Comments

  1. I searched google for pages with “Ninth Amendment” at pro-polygamy media site,
    http://www.Pro-Polygamy.com

    There are four articles.

    1.

    Some Conservatives Making Mistake on Marriage
    Date: Jul 30, 2003
    http://www.pro-polygamy.com/articles.php?news=0005
    Quote:
    Opposite the Tenth Amendment’s constraining government to only explicitly enumerated authority, the Ninth Amendment conversely declares that rights of individuals do not have to be explicitly enumerated. That is how a “right to privacy” for individuals may be constitutional.

    Ironically, in the same way that the “right to privacy” phrase is truly not enumerated in the Constitution, neither is the word, “marriage.”

    The same Tenth Amendment, which some mis-perceived as applicable against the “right to privacy” for individuals, specifically does indeed apply to “marriage” involvement by the government.

    The Ninth Amendment can allow the “right to privacy” of individuals without it having to be constitutionally enumerated. At the same time, because federal government “marriage” authority is not enumerated anywhere in the Constitution, the Tenth Amendment prohibits it from being involved in “marriage” whatsoever.

    2.

    These Conservatives Oppose Unbiblical Marriage Amendment
    Date: Aug 14, 2003
    http://www.pro-polygamy.com/articles.php?news=0006
    Quote:
    The paradigm of modern conservatism is based upon unchanged, strictly limited government and unenumerated individual freedom. The Tenth Amendment’s principle limits federal government authority to explicitly enumerated items in the Constitution. The Ninth Amendment codifies the converse principle that individuals’ rights do not have to be enumerated. Those two principles are what define true conservatism.

    3.

    ‘New Liberal’ Hypocrisies on Government Marriage
    Date: May 15, 2004
    http://www.pro-polygamy.com/articles.php?news=0017
    Quote:
    Immediately after Lawrence v. Texas, “New Liberals” cried out that the “right to privacy” is not explicitly written in the Constitution. Again, they misapplied the Tenth Amendment, trying to suggest that the Court has no authority to rule on that matter.

    The Ninth Amendment answers that absurd argument. Specifically, individuals’ rights do not have to be so constitutionally codified. Besides, the last clause of the Tenth Amendment clearly says, “or to the people,” meaning the rights of the individuals.

    4.

    Failed Marriage Amendment Sabotaged the Churches
    Date: Oct 07, 2004
    http://www.pro-polygamy.com/articles.php?news=0024
    Quote:
    The true conservative position is that of strictly limited government. Constitutionally, government’s only legitimate role is to protect each individual’s rights from being infringed by anyone else — including government. Government’s purpose is not for social engineering.

    The Tenth Amendment constrains federal government power to only specifically enumerated authority. The Ninth Amendment codifies that the rights of individuals do not have to be enumerated whatsoever.

    Without such constraint upon government power and such protections of un-enumerated individuals’ rights, any minority is vulnerable to the tyranny of any then-current majority.

    What this shows is that polygamists have been making this same argument. It’s not a penumbra to create “polygamy rights.” Instead it is that government has no constitutional authority to prevent polygamy for consenting-adults. Government is not for social engineering, but is only for protecting natural rights from being infringed.

    Comment by Pro-Polygamy — August 31, 2006 @ 3:42 pm
  2. The Presumption of Liberty And Kelo

    Brad Warbiany at The Liberty Papers explains how the Kelo decision resulted from the abandonment of the presumption of liberty.

    Trackback by PLF on Eminent Domain — September 1, 2006 @ 5:46 am
  3. Carnival of Liberty no. 61

    Welcome to the sixty-first edition of the Carnival of Liberty. This is a round-up of blog postings on topics of interest to the Life, Liberty, Property (LLP) group. To skip to a particular set of posts, you can use this…

    Trackback by Quotulatiousness — September 5, 2006 @ 5:01 am
  4. [...] The Right To Privacy In our current Constitutional jurisprudence, the Right to Privacy is an exception to unlimited government power. If we returned to a Presumption of Liberty, the Right to Privacy, along with a host of other rights and liberties, wouldn’t be an exception (tags: constitution liberties rights privacy-anonymity law) [...]

    Pingback by Silent Lucidity » links for 2006-09-05 — September 7, 2006 @ 2:48 am

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