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The “Mythical” Right to Privacy

August 10th, 2005

I hope to post soon in detail about Roe & Griswold and the right to privacy, but first, let me lob out this basic little question. Right-wingers are telling us that we should be strict constitutionalists, and therefore rights not strictly enumerated in the Constitution are not guaranteed–such as the Right to Privacy, for example.

Do I have that wrong? Because one look at the 9th Amendment shows this:

Amendment IX.

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

Did I miss something? Does this not include the right to privacy, right there? How do you argue against that?

Most importantly, how can one in any way reconcile the statement that ‘only a literal reading of the Constitution is acceptable’ with the very existence of the 9th Amendment, which practically shouts that the Constitution does not contain all of the rights that the Constitution protects? The very existence of the 9th Amendment demands the kind of interpretation that strict constructionists say must not be allowed.

If I’m just not getting it, then explain it to me.

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  1. YKW
    August 10th, 2005 at 07:37 | #1

    I think the US constitution is totally confusing. Take IX for example, it makes a comment about rights, yet what rights does it refer to, and what does one do when balancing “rights” for one person against “rights” for another? e.g. person X who wants privacy vs person Y who wants to be protected against bad people. What to do? I don’t think the constitution is helpful when balance competing “rights”, and that is where all the controversy is.

  2. Tim Kane
    August 10th, 2005 at 09:07 | #2


    The framers of the constituion framed the constitution with traditional common law rights in mind. In fact, denial of some of those common law rights is what lead to the war of independence for many of them.

    If the Constitution was to deny a common law right it would have been exclussively enumerated and so denied explicitly in the constitution.

    That begs the question: “was there a common law right to privacy at or prior to the creation of the constitution.”

    The answer is indeed there was. The law of torts recognizes a common law right to privacy. Tort law can be translated to the law of wrongs (as apposed to the law of rights). It is wrong for you to violate my privacy, and vice versa.

    So “a right” to privacy certainly existed in the Common Law and belonged to the people.

    The law of torts deals primarily with the relationship between people. Criminal law deals with the law between individuals and the state. Thus you can hit me with a crow bar, the state will try you for criminal assualt and/or battery, then I can so you in a civil action for the same and seek damages.

    The extent of the right to privacy thus, is another thing. Also, can a common law tort right hold up against the powers in the state.

    In regards to the former: the Supreme Court’s job is to decide, when two rights conflict, which one trumps the other – which right is more fundementally important than the other. Thus, a right to privacy wouldn’t guarantee a right to an abortion, because it conflicts with the right to life (of the life, liberty and property rights). This pushes the question to “when is there a life?”

    In regard to the power of the state – under our system the police power of the state is pleanary. People found this out recently when the Supreme Court allowed the state of Connecticut to exercise eminent domain for non public purposes. People were shocked, but this is not anything new, this is how the power of the state has always been viewed. We control it through our legislature and through our state constitutions. In short, the People give sovereignty to the State. The states then delegate some of that sovereignty to the Federal Government. So while the federal government can’t violate a right that belongs to the people (except for purely Federal enumerated purposes), including the right to privacy, it may very well be that the jurisprudence in the United States has evolved to that where an individual state, in its police power, could violate a persons right to privacy.

    All that being said, there is “a right” to privacy under the constitution.

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