January 15, 2006


Figment of imagination: There is no constitutional right to privacy. Call a national referendum to settle the issue (JUDGE HAROLD R. DEMOSS JR., 1/15/06, Houston Chronicle)

In this season of politicized and contentious confirmation hearings to fill vacancies on the U.S. Supreme Court, some of the sharpest debate and disagreement concerns a so-called "right of privacy" in the U.S. Constitution.

The advocates of a constitutional right of privacy speak as though that right were expressly stated and enumerated in the Constitution. But the text of the Constitution does not contain the word "privacy" or the phrase "right of privacy."

Consequently, in my view, a constitutional "right of privacy" could only be unenumerated and is therefore a figment of the imagination of a majority of the justices on the modern Supreme Court.

Posted by Orrin Judd at January 15, 2006 1:16 PM

Harold, you ignorant slut. We don't do national referenda. Never have, because there's no constitutional basis for them. What we do have is Article 5, but it seems everyone gave up on that route when the ERA died its well deserved death. If you want an enumerated "right to privacy", or want to explicitly exclude it, then draw up the amendment and start the ratification process. If you think Congress already has that power, to tell the Supreme Court to "butt out", then get Congress to use it.

You don't fix one unconstitutional process (emanations from penumbras) with another unconstitutional process (referenda). Sheesh.

Posted by: Raoul Ortega at January 15, 2006 2:46 PM

I guess Harold is expecting to be nominated to SCOTUS anytime real soon.

Posted by: Robert Schwartz at January 15, 2006 3:03 PM

It seems to me that the right of privacy is assumed as the basis of the fourth amendment: the right to be secure in one's person, property, and papers absent a search warrant sounds like a balancing of limits to that privacy interest, and it's not that controversial. What becomes controversial is the asserrion of this limited right to cover up what was a crime in common law, that is, an abortion.

Posted by: Arnold Williams at January 15, 2006 4:37 PM

"Privacy" was invented by Louis Brandeis in 1890 out of personal pique and was not much more than one of the most successful property grabs in world history.

Posted by: David Cohen at January 15, 2006 7:42 PM

Raoul beat me to it, and I very much concur with what he has written, although I retain a certain reticence about publicly calling a judge an "ignorant slut."

In this case, however the ignorant slut has compelled the appelation.

Fot one thing, the constitution very much does expressly protect privacy in certain circumstances, from certain intrusions, as noted in Arnold's comment. The problem is that the Court has used the word "privacy," which people value, to erect out of a whole cloth, literally by smoke and mirrors, a regime of baby-murder and a license to eff anything, anytime, anyplace.

A referendum to construe the Constition has itself no constitutional basis, the general right of amendment having been expressly provided for. Judge DeMoss' argument that the right of the people to construe directly their own unenumerated rights springs from the emanations of the penumbras of the Ninth and Tenth Amendments misunderstands those portions of the Bill of Rights and would not solve the proplem as the judge intends.

If the referendum question were framed to determine whether our unemumerated rights included the option to make a holocaust of our children at will, one result would obtain. The opposite outcome would be predicted if citizens voted on whether they had an abstract "right to privacy."

Should we then have a new referendum every time a party presents a new case and controversy by raising a claim of unenumerated right?

Away with this nonsense! We have just had two referenda on whether the Constitution protects the "right" to slaughter the unborn. In each of the last two presidential elections, one of the candidate ran on a pledge to appoint Supreme Court justices who were "strict constructionists," after the manner of Scalia and Thomas." That is how the popular will on these matters is expressed, short of a second constitutional convention or a second revolution.

Posted by: Lou Gots at January 15, 2006 7:46 PM

It's sad that many of the same people screaming about the constitutional right to abortion, which isn't expressed in that document, want to stifle the expressed constitutional right of free speech for abortion protesters.

Posted by: sharon at January 15, 2006 11:08 PM

I agree that there is no direct "right to privacy" in the Constitution. As noted, that "right" is an emergent property which exists because the federal government is not authorized to perform the actions that would violate it (e.g., "unreasonable" searches). We would get a much better "right" to privacy if we stoppped asking what rights the citizenry has and started asking "by what (Constitutional) enumerated power is this government action authorized?".

Posted by: Annoying Old Guy at January 16, 2006 1:57 PM


No, you wouldn't:

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Posted by: oj at January 16, 2006 2:26 PM

Mr. Judd;

You completely lost me on that one. What does the pre-amble have to do with enumerated powers or my point?

Posted by: Annoying Old Guy at January 16, 2006 10:30 PM

If you ask what powers the government created by the Constitution has the answer is extensive ones.

Posted by: oj at January 16, 2006 10:38 PM