INTRODUCTION
It is not yet clear to me whether the average American should be amused or horrified by the recent statement made by a leading jurist that privacy is not guaranteed in the Constitution, implying that Americans should not assume that they have such a right.
Before we begin to dissect this curious piece of reasoning, I am inclined to share with readers a comment made by Elizabeth Gurley Flynn at her trial in 1910 in Spokane, Washington. The workers who tried to organize a union were being punished and their speakers arrested, which then turned into a free speech fight. Ms. Flynn writes:
During my testimony the judge asked me upon what I based my speeches.
I replied: “The Bill of Rights.”
He said: “But you’re not a lawyer. How can you interpret them?”
I answered: “They are in plain English, your Honor, anyone can understand them. They were not written for lawyers but for the people!”[1]
It is truly amazing that conservative leaders in the political and judicial sphere speak without thinking matters through; they act as though Americans are not intelligent enough to understand the Bill of Rights. These leaders either have not read the Constitution recently or no longer remember its purpose. A close examination of the Bill of Rights will explain my meaning.
There is a pressing need to expose this magician’s sleight-of-hand trick that conservatives are increasingly fond of adopting. The ruse they’ve chosen is simple: they assert that since the word “privacy” does not appear in the Constitution, then a person must conclude there is no right of privacy. They choose to ignore all those passages where the idea of privacy is clearly conveyed even when the word itself is absent.
1
To illustrate the point, let us start with a simple parallel example: the word “slavery” does not appear in the 1787 Constitution (it first appears in the 13th Amendment in 1865). Following the hypnotic effect of the magician’s trick, should readers conclude that slavery never existed?
It pains me to say something so obvious to men and women of such stature but state it I must: chattel slavery did exist in the United States for two and a half centuries, including both the Colonial Era and the period from 1789 (Constitution ratified) until 1865 (slavery abolished).
Indeed, one wonders why the 13th Amendment was needed to abolish slavery if slavery did not already exist—if we go with the theory that the absence of that word in the Constitution should be interpreted to mean slavery never had a socio-cultural reality all its own.
If the absence of the word “privacy” is being used to suggest the right of privacy does not exist, then does not the missing word “slavery” suggest that it never existed as well?
Let us see if the practice of holding enslaved persons was expressed without recourse to the word “slavery” itself. We shall find our answer in Article IV:
“No person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” (the spelling of “Labour” follows the British model).
In brief, if any state allowed slavery and a slave from that state escaped to another state, the second state must send the slave back from whence he started—back to the slave-owner. Even though the word “slavery” is not found anywhere in the Constitution prior to 1865, a slave-owner had the right to expect another state to honor this constitutional provision to help him recover his runaway slave.
Whenever we study American history, it is helpful to take a look at actual social conditions which preceded and inspired the articles and amendments found within the Constitution.
If a person today can be tricked into believing that there is no right of privacy because that word does not appear in the Constitution, it seems likely there are other people who can be fooled into believing slavery never existed, either—the absence of that word in the Constitution must mean slavery wasn’t real, either!
That is the parallel between the words “slavery” and “privacy” and the various corresponding social phenomena to which both refer: given to the reader half-mockingly, of course—and yet half-seriously as well.
2
It is not until the Thirteenth Amendment that the word “slavery” is added to the Constitution:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. (Ratified December 1865).
To claim slavery did not exist before 1865 because the word “slavery” was not part of the 1787 Constitution is certainly rather foolish but no more foolish than arguing the right of privacy does not exist because the word “privacy” was not part of the Constitution. That is the cheapest sort of sophistry and exposes the so-called “originalists” as little more than linguistic tricksters.
The late Supreme Court Justice Antonio Scalia tried his hand at this magic trick but met with limited success, understandably so. Still, he broached the subject and ran up a trial balloon, leaving the way open for other jurists to get the balloon a little higher off the ground next time.
Justice Scalia said during a televised interview with Chris Wallace: “There is no right to privacy. No generalized right to privacy.”[2] While it is true Justice Scalia defended privacy rights in a number of cases that came before the Court, he nevertheless sometimes maintained the opposite.
Conservatives get wrapped up in highly abstract entanglements while trying to create a toehold for their rightwing viewpoints concerning politics and religion; they drift away from the beauty and spirit of the Constitution and from the ideals of the Revolution that gave rise to its creation.
In point of fact, the amendments in the Bill of Rights frequently address one or more aspects of a person’s right of privacy, at least when readers take the time to understand fully what they actually say.
As Elizabeth Gurley Flynn remarked: “They are in plain English, your Honor, anyone can understand them. They were not written for lawyers but for the people!”
THE FIRST AMENDMENT
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Let us consider the state of affairs at the time the Constitution was adopted in order to compare the colonists’ social conditions under the British crown with their new lives as free-born Americans. In general, one of the aims of the Revolution was to acquire certain fundamental rights for the American people that were not granted under the reign of King George III.[3]
The First Amendment guarantees freedom of religion, speech, press, and the right of peaceful protest. Nearly everyone appears to be agreed upon this point since that is what the language states explicitly–which is to say, Americans may think and speak freely.
No one can command you, as an American, to believe something not natural or sympathetic to your conscience—liberty of conscience is a fundamental right guaranteed to us all. You cannot be told what to think or believe. Your thoughts and your beliefs are your own, private, and protected from coercion.
This personal liberty represents a fundamental dimension of privacy, does it not? The freedoms of the First Amendment do not limit but expand the rights of privacy for Americans. Perhaps there is no greater sense of privacy than this right to believe as you choose and to speak your own mind to family, friends, and society without fear of persecution or legal repercussion.
Every amendment in the Bill of Rights reflects the Founding Fathers’ keen awareness of those rights denied their fellow colonists under British rule. The adoption of these ten amendments was not done haphazardly. The new guaranteed rights were meant to overcome monarchy’s suppression of individual rights in the colonies.
The Bill of Rights proved itself revolutionary in rejecting the historical relationship between royal authority and the people–between monarchy’s prerogatives and Crown subjects expected to submit in quiet obedience to royal authority, however arbitrarily exercised.
The colonists were not free to discuss their grievances or organize a movement to bring about change–it was even unlawful to criticize the king and royal governors![4]
The first amendment takes that royal reality and turns it around. Freedom of speech would remain a weak liberty, indeed, if it failed to include the right of Americans to criticize their government. Liberty of conscience in general—including the privacy of one’s personal convictions—must likewise be protected from the incursions of governmental authority.
Understanding the First Amendment is essential to appreciating how the concept of privacy is recognized and protected in the Constitution. It is not the only amendment to do so, however. Let us turn to the rights embedded in the other amendments—which will help us develop a better understanding of the purpose and role of the Bill of Rights when taken as a whole.
THE SECOND AMENDMENT
“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The Second Amendment is much in the news lately; its wording has been hotly debated due to the on-going factional battle between advocates of “unrestricted gun rights” and their opponents who favor “tighter gun control” laws.
Fortunately, we need not descend into the acrimony of that debate. We simply acknowledge that Americans have the right to own and bear arms as the Supreme Court ruled in 2008.[5] This decision reinforces the understanding that Americans may defend their homes–and right of privacy–by force of arms if necessary to hold off intruders, robbers, or trespassers.
Prior to the Revolution, the king of England ordered the colonists to disarm to prevent rebellion. The Founding Fathers and their revolutionary compatriots refused to comply. Instead, they hid gunpowder and military supplies at Concord and other towns; it was the British Army’s mission to find and destroy these arms in the spring of 1775 that served as the spark for the American Revolution.
One cannot help but note the anti-British connection between the First and Second Amendments. The framers of the Constitution were intent on countering the arbitrary abuses of royal authority that had plagued the colonies for years. Trying to head off the gathering storm, the king had also forbidden colonists from gathering in groups larger than three or four. The First Amendment in turn specifically recognizes “the right of the people peaceably to assemble”.
The First and Second Amendments, taken together, granted liberties the royal crown strove hard to prohibit. Owing to the very nature of the rights granted in these two amendments, the right of privacy is found alive and well in every word and breath. Otherwise, these guaranteed liberties would be virtually meaningless!
It is prudent to recognize how each amendment anticipates and amplifies the rights found in adjoining amendments and how they in turn reinforce the rights already recognized.
THE THIRD AMENDMENT
The King and Parliament passed four Coercive Acts which did not sit well with the colonists. The first, the Quartering Act, was particularly offensive. The Third Amendment soon fixed it:
“No soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
The expression “A man’s home is his castle” is a common bit of folk wisdom as well as actual legal doctrine. It became a popular saying for a reason: Americans in their homes may lead private lives free from harassment, persecution, and the unwanted intrusions of others.
Wherever the king and his soldiers denied colonists their rights and infringed upon their privacy, the Bill of Rights would be the Founding Fathers’ reply.
Perhaps no amendment demonstrates the implied right of privacy more clearly than the Third for it juxtaposes the right of British soldiers to enter any American home before the revolution with what the new Constitution expressly prohibited after the Revolution.
The Third Amendment ended a much-detested practice: British soldiers could demand that towns provide them rooms for meetings. Under the Quartering Act, British soldiers could even enter the homes of colonists unannounced and without warrant. They could demand to be fed and bedded; stories abound of how they savagely broke furniture or set fires, leaving considerable wreckage in their wake.
The Founding Fathers aimed to make sure no soldier could ever again come barging into a house to demand food and lodging while taking over the house. Read again most carefully Amendment III to feel its full impact:
“No soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
This language is so unmistakable that the third amendment has engendered the least amount of litigation. Indeed, it is the only Bill of Rights amendment that has never led to a case requiring resolution from the Supreme Court. Its language is too clear to leave much doubt as to its intent: another layer of protection for the right of privacy.
Not bad for a document wherein Scalia-inspired conservatives wish to throw their hands up in the air to exclaim they cannot find even the smallest whiff of the notion of privacy!
THE FOURTH AMENDMENT
Not only are Americans happily free to exercise all the rights guaranteed to them by the first three amendments, we can note how, taken together, they boldly anticipate the language of the Fourth Amendment–which comes the closest to an open assertion of the right of privacy:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Not only were the provisions of the Quartering Act knocked out with a bang in Amendment III, the Founding Fathers took the matter one step further. They aimed to make sure no soldiers could ever again come uninvited into people’s houses to demand of Americans an immediate expression of loyalty to the Crown while they searched for papers to seize with which to convict the householder of a crime.
The Fourth Amendment put an end to it. If that is not a guarantee of privacy, then what is?
The first four amendments make abundantly clear that Americans are protected in their liberties in distinct and substantive ways: freedom of religion, speech, press and peaceful protest; freedom to bear arms; freedom from soldiers being forced upon them as unwanted boarders; and freedom “to be secure in their persons, houses, papers, and effects”. Their houses and their lives all have these many guarantees to protect them and their privacy!
Inasmuch as the vast majority of law-abiding citizens would never have an occasion to be served with a warrant at all, their right to privacy is virtually absolute. If this may seem like rhetorical excess, the author wishes to remind the reader that it is not my intent to examine the question of privacy from every possible legal angle and ramification. That job is better left to legal scholars.
Rather, in contradistinction to the notion that the right of privacy “does not exist” at all—simply because the word is not found in the Constitution—the author wishes to illustrate the multitude of ways in which a person’s right of privacy can be conceptually derived from the Bill of Rights with just a little bit of logic and insight.
These first four amendments clearly demonstrate that such a concept of privacy is recognized by the Constitution. To suggest otherwise is to misread the meaning of the amendments themselves as well as the larger, over-arching purpose of the Bill of Rights and the U.S. Constitution.
THE FIFTH AMENDMENT
Amendment V is one of the most fascinating amendments for the pungency of its language and the unmistakable manner in which it reveals the reasoning of the Founding Fathers; it is nearly as powerful as the Fourth Amendment when defining the rights and liberties of Americans:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”
Law-abiding citizens may not think of guaranteed protections for arrested suspects caught up in the justice system as having much to do with their own right of privacy, but consider the great difference between a defendant represented by an attorney and its opposite—an individual not guaranteed or granted access to a lawyer at all.
The need to set the highest standards possible when dealing with arrested individuals necessarily means that a suspect’s basic underlying rights are recognized and protected.
Following the dictum “innocent until proven guilty”, even a detained person retains many of the same basic rights as any other member of the general public.
If it is true, then, that even suspects in criminal proceedings are afforded such rights, how much more certain it is that all such rights are guaranteed to the law-abiding citizen?
Truth to tell, it is a challenge to know how best to begin to unpack all the rights found in the Fifth Amendment. Certainly, the phrase “nor be compelled in any criminal case to be a witness against himself” jumps out with special vigor. A defendant cannot be forced to speak or act against his will. The law recognizes a defendant’s right to remain silent if he so chooses.
Even as the First Amendment protects an American’s basic individual freedoms, the Fifth Amendment delineates additional rights while adding complexity and color to their spirit.
Americans cannot be intimidated, threatened, or physically coerced into giving testimony against their will since such testimony risks being either incriminating or perjurious (if it is derived from fear of bodily injury or the threat of harassment and persecution.)
If this point is not already abundantly clear, the Fifth Amendment anticipates the short but pithy language of the Eighth Amendment, to wit: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
These legal protections are largely self-explanatory but before moving on it is important to note that the Fifth Amendment takes special care to protect a defendant against double jeopardy and introduces one of the Constitution’s most historic phrases: “without due process of law.”
We shall resume our examination of this amendment after a brief review of the underlying political philosophy of the Declaration of Independence and the Constitution.
ALL MEN ARE CREATED EQUAL
All of the amendments so far examined affirm the Constitution’s recognition of the inherent human dignity of all Americans. The Founding Fathers drank deeply from the well of natural law and natural rights. When Thomas Jefferson penned the Declaration of Independence he included the most memorable of all lines: “All men are created equal”.
It is a beautiful phrase but we should never forget or minimize its genesis in the philosophy of Locke and others who upheld the full-bodied freedom of this moral and political philosophy.
Men like Jefferson, Adams, and Paine understood perfectly well the theoretical implications of what they were saying: human beings are born with rights and the Constitution must recognize and protect these rights. The sentiment was first announced in the Declaration of Independence:
“We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any form of Government becomes destructive of these Ends it is the Right of the People to alter or abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.”
Here the doctrine of popular sovereignty is announced: that ultimately it is the people who are sovereign. It is passing strange to think that the People, now free to govern themselves, would voluntarily give up their right to privacy–with no earthly cause demanding such a sacrifice of personal liberty. Why would the people surrender any of their freedoms when, under the doctrine of natural law, there was absolutely no moral or legal compunction to do so?
All the usual human rights and freedoms are theirs: these rights do not disappear even when additional legislative elaboration or judicial interpretation may become necessary. A critic may point to a modification decided by the courts, but stating that a person does not have the right to yell “Fire!” in a crowded theater hardly negates the broad reach and purpose of “freedom of speech” for millions of Americans: the fundamental right remains intact.
Should we ask Americans to sacrifice their right to “life, liberty, and the pursuit of happiness” merely because a jurist remarked on the absence of the word “privacy” in the Constitution? Should the people voluntarily agree to give up their rights and liberties when nearly every amendment of the Bill of Rights defends these rights, including the right of privacy, in one form or another?
It is illogical to think that the authors of the Constitution took such care to envision a world in which Americans would be free to exercise a broad and diverse range of personal rights and liberties… and yet overlooked the right of their fellow Americans to lead a private life of quiet dignity according to the dictates of their consciences.
How can anyone seriously believe that such an over-arching right as privacy is not to be counted among our liberties–when plain reasoning shows that the right of privacy is essential to the free exercise and enjoyment of every other right granted?
THE FIFTH AMENDMENT’S PURPOSE
Returning to the Fifth Amendment: although it is quite tempting to resume our analysis with how a person cannot “be compelled in any criminal case to be a witness against himself”, there’s a second phrase that exerts an even stronger pull, namely: “. . . nor shall private property be taken for public use without just compensation.”
I suspect that if we don’t stamp out their heretical revolutionary zeal immediately, there are some budding linguists and political scientists out there itching to show there’s a connection between “privacy” and “private property”.
Or are we to conclude that there can somehow be a right of “private property” without one’s property being considered “private”: i.e., property protected by the rights of privacy?
Shall we stoop to such word game lunacy merely to keep alive the fantasy illusions of right-wing ideologues by pretending the doctrine of privacy cannot be extrapolated from the Constitution?
To return to our first example of slavery: this would be akin to finding words such as “slave” and “enslaved” in the Constitution and yet stubbornly arguing that slavery never existed because the word “slavery” is not there! If “enslaved” is the adjective, then “slavery” must be the noun.
If “private” is the adjective, then “privacy” must be the noun. Indeed, it is exceedingly difficult, if not impossible, to separate these two words—adjective and noun—given the high degree of their interconnectedness through both linguistic form and substantive meaning.
Can anyone imagine an “enslaved” person without understanding that the unfortunate person was bound in slavery? Can anyone imagine “private property” without the owner having the right of privacy in his property?
I suppose it can be done … but only by resorting to the magician’s sleight of hand alluded to previously–and by adding to that magician’s ruse the contortionist’s ability to bend and twist words and their meaning into unimaginable pretzel-like shapes and unintelligible knots!
It is interesting to note all these phrases of the Fifth Amendment lend strong credence to the view that the Bill of Rights is intended to protect the rights of Americans in diverse ways–not the least of which is the basic right of Americans to live their lives however they choose without any unnecessary and unwanted interference from government, neighbor, or stranger.
That appears to rest very near the heart and essence of “the right of privacy”, does it not?
AMENDMENTS SIX, SEVEN, AND EIGHT
I will be brief with the next three amendments as they pack less of a wallop than the first five. Their chief significance is adherence to the rule of law–which is to say, Americans have rights that cannot be arbitrarily dismissed or limited. This rule of law, as a cornerstone of American democracy, must necessarily respect the rights of Americans to conduct their lives in private.
It is, after all, only the right of privacy that makes perfect sense of all the liberties found in the Bill of Rights. If an American did not have the right of privacy it would be pointless to assert: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”
Let us review briefly the wording of the Second Amendment: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Just as the Second Amendment opens with a dependent clause, one could do the same here to accentuate the meaning of the Fifth Amendment:
“Privacy being a fundamental right of a free people, the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”
Granted, the author has taken creative liberty here but the question remaining to be asked is, does adding this dependent clause hinder or clarify the amendment’s true meaning and purpose?
The Bill of Rights, in securing these rights, at the same time goes far beyond safeguarding only the specific liberties listed. Most importantly, the Bill of Rights also guarantees other rights not named—and which, as we shall soon see, is not a misguided fantasy of this author but a specific legal doctrine described by the Ninth Amendment.
First, however, an additional word is in order here concerning the adoption of the Bill of Rights.
THE DEBATE OVER THE BILL OF RIGHTS
When the idea of a Bill of Rights was first proposed at the time of the Constitutional Convention in 1787, it was not greeted with open arms by every delegate; instead, it even met with some fair degree of criticism. You might think that the opposition came from those delegates opposed to giving so many rights to their fellow countrymen.
You must also remember, however, that the Convention included many of the revolutionaries who had recently overthrown the rule of the British monarchy. They were hardly averse to asserting the rights of Americans under a new constitutional government, yet there were those who balked at creating a list of liberties such as was envisioned under a new Bill of Rights.
An entirely different line of reasoning emerged, however; the major concern was that if specific rights were referenced, what happened to those other rights not included?
As author Chris DeRose explains: “A bill of rights was also seen by many as superfluous. The Constitution already restricted governmental incursion on the people’s rights, some argued, by strictly enumerating the government’s powers in the text of the Constitution. Individual rights were thereby implicitly reserved. There was even a possibility that enumerating some rights might mean implicitly ceding others.”[6]
Another delegate to the Constitutional Convention, James Jackson, “argued that Americans would become ‘objects of scorn’ in the eyes of other nations. Amending the recently adopted Constitution would make the United States look unstable and confused . . . If Congress had no power to regulate free speech, he argued, no amendment was necessary to protect that right.”[7]
Additionally, this single thought–that rights not specified might be construed as having no legal standing–was one of the main factors that slowed down the ratification process. The issue was hotly contested before a consensus was reached in favor of adding a bill of rights.
It wasn’t fear of granting “too many rights” that motivated the opposition so much as how best to mark the distinction between specified and unspecified liberties . . . as well as certain niceties regarding the delineation of powers and restrictions between state and governmental authority.
James Madison’s name is most closely associated with this contentious debate for one reason: he first opposed the Bill of Rights before reversing himself and became its leading champion. It goes without saying that “the Father of the Constitution” (as Madison is called) was intimately involved in the drafting of the actual language.
Whenever we wish to plumb to the depths the extent of this controversy, we can trace the example of Madison’s leadership and reasoning; through his arguments we can learn to appreciate the why and wherefore of his transformation during the Bill of Rights debate.
Consider this hypothetical example: Americans move about the country freely. Yet if this right of movement was not specifically recognized, could a claim be made that the right did not exist?
We shall return to this point when we examine the Ninth Amendment. For now, let us continue with our sequential review of the Bill of Rights.
THE SIXTH AMENDMENT
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel for his defense.”
Like the Fifth Amendment, the Sixth Amendment deals with the rights of suspects who have run afoul of the law. The language is intended to guarantee a fair trial based on evidence and witness testimony, a far cry from what passed for “justice”—or at least the worst abuses thereof–during the long history of monarchy in Great Britain.
If suspects accused of crimes, whether minor or heinous, have such specific rights even after being arrested, can we think of law-abiding citizens as having fewer rights in less portentous circumstances? The Bill of Right’s protection of the rights of individuals facing judicial prosecution speaks to its expansive nobility of purpose.
Even persons accused of crimes have well-defined rights not to be infringed or denied; clearly, the Bill of Rights is not intended merely as “feel-good” suggestions. Each and every right listed in the ten amendments has firm legal standing and the full enforcement power of the courts.
THE SEVENTH AMENDMENT
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
We shall pass by this amendment in relative silence; the amount has been raised considerably in criminal proceedings ($75,000) but the rest holds true. What is perhaps most noteworthy is “the right of a trial by jury” and the declaration that Americans may take advantage of such a right when circumstances so demand.
It is this very liberty of exercising one’s constitutional rights that lends enormous credence to the recognition of the right of privacy—even law enforcement and judicial protocols for the purpose of criminal proceedings must be done carefully and lawfully. When a defendant meets with his attorney, the session is private whether held in law office or prison.
It should be noted that in certain other areas—doctor-patient, husband-wife, and priest-penitent relationships–society affixes the privilege of privacy to all such communication. Thus certain rights of privacy, both as precedent and historical fact, exist socially whether or not they are precisely described in the Constitution; Americans have many rights in which the element of privacy is an essential part, derived from historical experience.
The phrase in the Sixth Amendment, “to have the assistance of counsel for his defense” is a legal right necessary for a defendant to receive a fair trial. It would lose all its significance if meetings between defendant and counsel were not private (Allowing the prosecution to hear every statement and strategy discussed would unfairly influence the outcome of the trial).
The attorney-client relationship remains privileged and cannot be abrogated or circumvented by trick or ruse. This legal protection suggests that the notion of “private” and “privacy” was not unknown to the authors of the Constitution; indeed, they clearly recognized the concept as they drafted their Articles and most especially the ten amendments guaranteeing individual liberties.
THE EIGHTH AMENDMENT
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Like the Second Amendment’s right to bear arms, the usually quiet Eighth Amendment has become more controversial of late, ever since September 11, 2001. As the United States sought the parties responsible for the attack on the Twin Towers in New York City, moral and legal questions were raised concerning what actions are allowed during wartime. Some rather thorny philosophical theories concerning permitted practices have surfaced and remain a hot topic.
After the U.S. used force to depose Iraq’s Sadam Hussein, a question arose as to what standards of treatment should be set for enemy combatants taken as prisoners of war. Photographs from the prison at Abu Graib showed unusually harsh mistreatment of Muslim prisoners. The practice of water-boarding at Guantanamo Bay and elsewhere raised grave questions concerning torture in place of humane treatment of the many prisoners held there.
We have already noted how the words “privacy” and “slavery” do not appear in the Constitution. We are faced with yet a third term in like circumstance; the word “torture” does not appear anywhere in the document, either, although we find a clear prohibition against inflicting “cruel and unusual punishments”.
For Americans, their own physical form—the body–is recognized as private and sacrosanct and is not to be defiled, beaten, maimed, or tortured as a form of punishment. The Revolution upended historical practice in this regard; prisoners were not to be tortured into “confessing”.
The difference between “torture” and “cruel and unusual punishment” is exceedingly slim, if indeed any distinction can be made at all. Nevertheless, at least one clumsy attempt was made when the Bush administration argued that water-boarding was not torture.
(It appears that the prisoners being tortured as a form of “enhanced interrogation” did not get to express an opinion; it takes no great power of imagination to conjecture in which direction their opinions most certainly would have leaned–or that of anyone else, for that matter, subjected to such barbaric and medieval cruelty.)
Hypothetically, one might argue that torture is permissible so long as it does not become “cruel and unusual punishment”…but that particular word game quickly dissolves in the wet sands of its own insanity. The phrase as given is a perfect definition of torture.
Like the examples of the fallacious reasoning found around the terms “privacy” and “slavery”, any effort to suggest that the Constitution does not prohibit “torture” fails miserably. One can attempt to do so only by violating all the laws of logic and values of morality by fabricating incredibly convoluted rationalizations to suit some ulterior purpose.
Thus we see that despite the absence of certain words like “slavery”, “privacy”, and “torture” in the Constitution, a reasonable person can assert: slavery existed; private property is recognized; and torture is prohibited. The right of privacy can be inferred from the Bill of Rights.
If the first eight amendments paved the way for readers to conclude that they have the right of privacy, with what greater enthusiasm shall they rejoice when we examine Amendment Nine?
THE NINTH AMENDMENT
“The enumeration of the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Now here’s a how-de-doo! This wording brings us back to our previous point, that part of the opposition to the Bill of Rights revolved around two simple questions: must the framers list all rights that Americans were to have? And if they were to include some rights but not others, how were Americans to be assured that rights not listed were as fully guaranteed as those that were?
Madison, who first opposed the Bill of Rights before transforming himself into its leading advocate, provided the answer; now championing its passage, he successfully guided the push to add the Bill of Rights to victory. The normally quiet Ninth Amendment was an integral part of the solution that made his change-of-heart advocacy, and subsequent success, possible.
Let us consider a few rights not listed and ask: Do Americans have the right to move about the country freely? Do they have the right of literacy, the right to read and study and contemplate? Do voters have the right to cast secret ballots? Do couples have the right to engage in sexual activity in private even if the Constitution does not state so explicitly?
The right to move about the country freely is an implied right that surely exists under the Ninth Amendment. If the previous eight amendments do not convince the most-hardened skeptic that the right of privacy exists, what shall he say when he meets that broad range of rights protected by the Ninth Amendment? Fundamentally, if nothing in the Constitution specifically prohibits Americans’ choice of liberties, including the right of privacy, then it can and does exist!
The language of the Ninth Amendment is brilliant and reflects admirably the genius of the men who drafted the Constitution. Only this wording and interpretation makes sense of natural law and natural rights, the underpinning of nearly all tenets of our American democratic philosophy.
It is nothing short of comical to imagine ways in which unintended social consequences would mount up if one were to extend such foolish reasoning in the opposite direction based upon the denial of the right of privacy: Does anyone seriously believe that wealthy families, high-ranking elected officials, and solemn robe-wearing judges would fail to object to unwanted and random incursions upon their privacy?
Do you think the rich and powerful would tolerate total strangers crossing the threshold of their homes unannounced and uninvited because it was successfully argued by someone somewhere that the right of privacy “does not exist” and therefore they have no reasonable expectation of privacy? As the wise man said: the answer is in the question!
THE TENTH AMENDMENT
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Last but not least, the Tenth Amendment stands guard as a faithful companion to its immediate predecessor, the Ninth; therefore, they can best be understood when taken together as a pair.
The Constitution recognizes that certain rights belong to the United States and still others are “prohibited by it to the States”—most significantly, the Tenth Amendment reiterates that in the absence of any specific constitutional language to the contrary, Americans are free to enjoy the broadest range of rights imaginable, both enumerated and implied. All powers (rights) not specifically delegated or prohibited elsewhere, “are reserved to the States . . . or to the people.”
The Ninth Amendment already provided Madison’s answer to that thorny issue of the extent of popular rights, including those liberties not specifically enumerated. In a single sentence, the amendment makes it abundantly clear that other rights do exist:
“The enumeration of the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
The Tenth Amendment strongly reinforces this philosophical position, after first delineating ways in which certain powers could be awarded or denied to the national or state governments. For instance, only Congress may make treaties with other nations. Therefore, this is not a right that can belong to either an individual or State.
There are other powers not granted to the States. The “Contract Clause” of the Constitution prohibits states from entering into treaties, coining money, or passing laws that impair contract rights, among other prohibitions. (Article I, Section 10).
These two categories must be given their full weight and consideration: powers delegated to the government and powers the States are prohibited from exercising. They deal with large-scale issues best handled by the government or States and assigned accordingly to one or the other; beyond these governmental administrative functions, however, remain those powers that are reserved to the States or to the people.
In this approach the Tenth Amendment follows the Ninth Amendment; it does not attempt to list all possible powers and rights of the people. Instead, it conceptualizes the specific rights granted to the government and not the States (in the Constitution) while providing that all other powers will belong to the States or the people. That is the meaning of the Tenth Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
When added to the voice of the Ninth Amendment, the intent and import of these words of the Founding Fathers become abundantly clear: “The enumeration of the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
As nothing in the Constitution prohibits the right of privacy, we must conclude that this right exists for the American people. As Elizabeth Gurley Flynn once said about the Bill of Rights:
“They are in plain English, your Honor, anyone can understand them. They were not written for lawyers but for the people!”
CONCLUSION: DEAR MR. SCALIA
While this article has focused on the Bill of Rights, an examination of the entire Constitution will produce additional evidence that the Constitution recognizes implicitly and explicitly many liberties derived from or associated with the right of privacy: liberties that would have no true breadth or substance without the all-pervading protection afforded by personal privacy alone!
The movement toward “originalism” may have some justification in certain judicial contexts. There are undoubtedly numerous linguistic subtleties (and hair-splitting legalistic interpretations) that will eventually be added to the field for both law and philosophy.
For my part, I have tried to simplify the term “originalism” as used here to refer to one particular tenet of this highly conservative viewpoint: namely, that approach which asserts that judges should adhere as closely as possible to the exact text of the Constitution to avoid unwarranted interpretation and application.
In doing so, I have relied on the time-honored method of setting up a straw dog argument or two, the better to knock them down. However, the phrases discussed here have neither been invented nor embellished by the author—there was an actual assertion made “in real life” that the right of privacy does not exist.
This assertion led to my suggestion that since “slavery” is another term that does not appear in the Constitution (pre-1865) then it could be reasonably assumed that slavery likewise lacked any basis in reality. While offered tongue-in-cheek, the parallel chosen was to make a simple point: the absence of the word “slavery” does not mean slavery did not exist.
In the same manner, the absence of the word “privacy” does not prevent us from discovering how the concept of the right of privacy is thoroughly embedded in the Bill of Rights.
My counter-argument is that if the doctrine of originalism is to be taken seriously, its proponents should make more of a conscientious effort to avoid such simplistic sleight-of-hand magic tricks.
They only succeed in making themselves look foolish by defending the notion that the right of privacy is absent from the Constitution.
They conveniently overlook the nature and purpose of the Constitution taken in its entirety–and most especially the Bill of Rights, the document’s heart and soul when it comes to the rights and liberties of the American people.
I will return to this topic in future endeavors and will try to be more respectful of their point of view…if they can conclusively demonstrate to me that slavery never existed in the United States of America merely because the word “slavery” does not appear in the original Constitution!
Until that day,
Professor www.rogeramericanwriter.com
POST SCRIPT
One might wonder why any of this matters or by what social pressures did a Supreme Court Justice reach the dubious position of casting doubt on the freedoms and privileges long associated with the right of privacy? The answer is two-fold: technology and terrorism.
Some groups would like to expand the powers of surveillance through technology at the expense of the individual’s expectation of controlling his or her own sense of privacy.
Businesses can benefit from tracking customers’ shopping habits; their tracking technology can accelerate if protections for privacy are knocked down.
Police and intelligence agencies seeking to defend our country against acts of terrorism could move more swiftly if their hands were “untied” by traditional American respect for our fundamental constitutional values of individual liberties.
This is a separate aspect of the question so far discussed: not whether the right of privacy exists (it does!) but to what extent Americans are willing to see that right curtailed, if at all.
We save that discussion for another day–hopefully a day that will continue to dawn under the bright sun of American freedom.
[1] Flynn, Elizabeth Gurley, The Rebel Girl: An Autobiography– My First Life (1906-1926) (New York: International Publishers, 1955), p. 110.
[2] www.msnbc.com/rachel-maddow-show/scalia-rejects-privacy-rights
[3] See “Before the American Revolution” on www.rogeramericanwriter.com for a comparison of rights held by the colonists before and after the American Revolution.
[4] It is true that as early as 1735 an American jury refused to convict publisher John Peter Zenger for committing libel against New York’s colonial governor—his lawyer Andrew Hamilton successfully argued that truth provides its own defense against the charge of libel!
[5] District of Columbia v. Heller (2008)
[6] Chris DeRose, Founding Rivals: Madison vs. Monroe, the Bill of Rights, and the Election That Saved a Nation (Washington, DC: Regnery History, 2011), p. 152.
[7] Ibid., p. 261.
