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 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.


Blogger Sean Strasburg said...

This is my nerdy geometric way of thinking. To read this you first need a compass and straightedge.

List the enumerated power across the bottom of the page--everything in Art I, s.8, all eighteen or whatever paragraphs. The fact that you can't just keep on going to the right is made explicit by the 10th Amdt: powers not given are reserved.

Now how much congress can do with each of those puppies is going to be graphed on the vertical axis: under the postal clause, they can do a little (maybe a one inch-high bar), and under the commerce clause, they can do a lot (eight inches). How high these bars go is determined by the necessary and proper clause.

So Amar in his classes frequently said that the 10th Amdt doesn't "cut across" the enumerated powers: this picture shows that, the way it just limits how many their are on the horizontal axis, without limiting how tall those powers can grow.

Rights, generally, can cut across how high the bars can grow just as effectively as the n&p clause. You may think you can do lots with the post office, but you can't restrict people to only sending pro-government stuff: that's the 1st Amdt.

But n&p was killed by McCulloch: this effectively let certain enumerated powers become so engorged with silliness that they become entire additional powers. The military power or spending power or coining power or whatever was construed to include a national bank. Slowly, enumeration became less useful as a way of discussing powers, because anything even rationally related to an enumerated power was fine. The commerce clause became everybody's peg to hang their hat on. In fact, with the growth of government power, really the only cutter is rights, because the bars aren't growing straight up anymore, but are curving over to the right well into ground barred by the 10th Amdt.

And gradually this nice diagram of limited powers, limited on one side by the 10th and the other by the n&p clause, kind of fell apart.

So this gets us to where Deuce's post starts: what about the best cutter of all: the 9th Amdt? If rights can chop down those bars, and the 9th is somehow the Mother of All Rights, can't it be used to go nuts and hack away at government powers?

I honestly forgot what I was going to say. But if you turn in for an exam question a picture with bars leaning over to the right and scissors labelled "9th Amdt" then you are sure to get an A.

3:42 PM  

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