Sunday, January 15, 2006

The Right To Privacy And The Ninth Amendment

so the wind is howling, and i can't fall asleep because of it. so i'm reading more conlaw and thinking about stuff. here's a not-so-original thought that i had as i reread griswold and roe and thought about the so-called "right to privacy":

the constitution is not a rights-creating document, but rather a government-creating one. the declaration of independence, as well as common sense, teaches us that the rights of the people exist independent of and prior to the formation of united states. the people established the united states to create a more perfect union of sovereign states as well as to promote the general welfare, to insure domestic tranquility, and so on. but the framers of the constitution and the bill of rights took special pains not to enumerate the rights of the people, but rather to enumerate the powers of government.

contrast article I, section 8...

"the congress shall have power...to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states."

...with section 1 of the fourteenth amendment...

"no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

...with the ninth amendment.

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


it seems clear to me at least that the constitution is supposed to define the limits within which government (first federal, and now state too) must operate concerning the rights of the people, whether or not those rights are specifically enumerated in the constitution. if this is indeed the case, then the right to privacy already exists "in the constitution" despite the fact that the word isn't there. (see the ninth amendment.)

when government passes a law, the burden of proof is (or at least should be) on the state to show that the constitution grants it the power to legislate and that its legislation is consistent with any express or implied constitutional limitations on that power. so government does have the power to abridge the right of privacy, but only so long as it meets those two criteria. it should be the first job of legislator, an executive, or a judge to determine whether or not a particular law can pass the test.

with respect to the federal government, the powers are clearly limited to article 1, section 8 and the empowering clauses of post-civil war amendments (13, 14, 15, 19, etc). the power of state government is closer to plenary, subject to limitations in individual state constitutions. but article I, section 10, most of the bill of rights, section 1 of the fourteenth amendment, and numerous other provisions in the constitution place specific and general limitations on government power.

but this doesn't change the fact that unenumerated civil rights and liberties that exist independent of the state (such as the "right to privacy") are necessarily incorporated in the constitution via the ninth amendment. the real question to be answered is whether the people have granted their government the power to abridge those rights and liberties, and in what way.

Monday, January 02, 2006

holy crap

sean, you're a madman. I think your brain must operate at about a million miles a minute. the flow volume of words and thoughts in and out of your head is probably breaking some records. for me, it takes five minutes just to decide what to eat for lunch. speaking of which...