How Would You Word a Right to Privacy in the Constitution?

[Alex]

We all know about the "penumbra" of clauses in the Constitution that the Supreme Court uses to claim a right to privacy. If there were to be a specific amendment to define the right to privacy, how would you word it?

 

[Oftencold]

At this juncture, I'm not sure I would.

Seriously, as much as I might wish to protect privacy, I'm not sure how it will be possible in the face of advancing technology.

 

[RightinNYC]

I usually love this type of thing, but I honestly don't think it's possible in this case. "Privacy" is one of those things that is best addressed through loooong, industry-specific legislation.

 

[JMak]

No, I don't know all about those shadows surrounding the provisions in the Bill of Rights that permit nine justices to divine from within those shadows that which is not explicitly expressed is the Constitution itself. All I know is that the Court had to invent these shadows to find a right to privacy that the Framers didn't explicitly cite in the Constitution.

 

[Dezaad]

No, I don't know all about those shadows surrounding the provisions in the Bill of Rights that permit nine justices to divine from within those shadows that which is not explicitly expressed is the Constitution itself. All I know is that the Court had to invent these shadows to find a right to privacy that the Framers didn't explicitly cite in the Constitution.

Are you sure they divined it solely from the Bill of Rights, or do you think that perhaps they took into account other amendments to the Constitution besides the first ten?

 

[JMak]

Are you sure they divined it solely from the Bill of Rights, or do you think that perhaps they took into account other amendments to the Constitution besides the first ten?

Either way the fact of the matter is that they relied on inventing shadows surrounding the amendments to the Constitution to divine such a right, no? So I'm not sure what your point is.

BTW, from Griswold:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

Revisiting Griswold:

The right of association contained in the penumbra of the First Amendment is one, as we have seen.

The right of association in the first amendment ain't found in a shadow of the amendment. It is explicitly cited in the amendment.

I had forgotten what penumbra meant:
1 a: a space of partial illumination (as in an eclipse) between the perfect shadow on all sides and the full light b: a shaded region surrounding the dark central portion of a sunspot
2: a surrounding or adjoining region in which something exists in a lesser degree : fringe
3: a body of rights held to be guaranteed by implication in a civil constitution
4: something that covers, surrounds, or obscures

So maybe I was harsh in describing the Court's reasoning as divination. Rather, the Court simply drew the implication that a right to privacy existed.

I wonder what other rights will be implied from the Constitution in the next 25 years... :roll:

 

[Ethereal]

Either way the fact of the matter is that they relied on inventing shadows surrounding the amendments to the Constitution to divine such a right, no? So I'm not sure what your point is.

BTW, from Griswold:

Quote:
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

Revisiting Griswold:

Quote:
The right of association contained in the penumbra of the First Amendment is one, as we have seen.

The right of association in the first amendment ain't found in a shadow of the amendment. It is explicitly cited in the amendment.

I had forgotten what penumbra meant:
1 a: a space of partial illumination (as in an eclipse) between the perfect shadow on all sides and the full light b: a shaded region surrounding the dark central portion of a sunspot
2: a surrounding or adjoining region in which something exists in a lesser degree : fringe
3: a body of rights held to be guaranteed by implication in a civil constitution
4: something that covers, surrounds, or obscures

So maybe I was harsh in describing the Court's reasoning as divination. Rather, the Court simply drew the implication that a right to privacy existed.

I wonder what other rights will be implied from the Constitution in the next 25 years...

Are you contending that implicit rights do not exist?

 

[Goobieman]

We all know about the "penumbra" of clauses in the Constitution that the Supreme Court uses to claim a right to privacy. If there were to be a specific amendment to define the right to privacy, how would you word it?

I think the 4th and 5th amendment cover it well enough.

 

[JMak]

Are you contending that implicit rights do not exist?

Nope. I am contending that the SCOTUS invented a right to privacy that it found in invented shadows of several amendments based on faulty legal reasoning.

I thought I was clear about that.

 

[Ethereal]

Nope. I am contending that the SCOTUS invented a right to privacy that it found in invented shadows of several amendments based on faulty legal reasoning.

I thought I was clear about that.

I'm not trying to be obtuse but it sounds like you're saying that a right may only exist so long as it is explicitly mentioned within the Constitution. Is this correct?

 

[JMak]

I'm not trying to be obtuse but it sounds like you're saying that a right may only exist so long as it is explicitly mentioned within the Constitution. Is this correct?

I appreciate your question.

There are privacy rights in the Constitution. The Fourth Amendment, for example, prohibits unreasonable searches and seizures. The entire constitutional framework is meant to limit government power and leave people alone most of the time. However, I don't believe that there is a generalized, abstract right to privacy unhinged from any Constitutional text.

The Court, in Griswold, created rights from nothing. And since then this so-called right has evolved from a "right to marital privacy" for a married couple to obtain contraceptives to a right for homosexuals to engage in sodomy (Lawrence) to a right for gays to marry (Masschusetts Supreme Court). The marriage was dropped and now we have a generalized right to privacy completely unhinged from the Constitution and the basis for "loose, flexible, uncontrolled standard for holding laws unconstitutional" as Justice Hugo Black would say.

I find it analogous to the Court's invention of a right to "liberty of contract" in the late 1800s and early 1900s. Fortunately, the Court righted itself and recognized that such a concept was merely the Court imposing its own policy preferences.

Wishful thinking that the Court will recognize the same with the so-called right to privacy.

 

[RightinNYC]

I appreciate your question.

There are privacy rights in the Constitution. The Fourth Amendment, for example, prohibits unreasonable searches and seizures. The entire constitutional framework is meant to limit government power and leave people alone most of the time. However, I don't believe that there is a generalized, abstract right to privacy unhinged from any Constitutional text.

The Court, in Griswold, created rights from nothing. And since then this so-called right has evolved from a "right to marital privacy" for a married couple to obtain contraceptives to a right for homosexuals to engage in sodomy (Lawrence) to a right for gays to marry (Masschusetts Supreme Court). The marriage was dropped and now we have a generalized right to privacy completely unhinged from the Constitution and the basis for "loose, flexible, uncontrolled standard for holding laws unconstitutional" as Justice Hugo Black would say.

I find it analogous to the Court's invention of a right to "liberty of contract" in the late 1800s and early 1900s. Fortunately, the Court righted itself and recognized that such a concept was merely the Court imposing its own policy preferences.

Wishful thinking that the Court will recognize the same with the so-called right to privacy.

I agree with all of this except for the part about the Lochner era.

 

[Ethereal]

There are privacy rights in the Constitution. The Fourth Amendment, for example, prohibits unreasonable searches and seizures. The entire constitutional framework is meant to limit government power and leave people alone most of the time. However, I don't believe that there is a generalized, abstract right to privacy unhinged from any Constitutional text.

So you would contend that only specific rights to privacy exist and that such specific privacy rights can only be extrapolated from explicit citations of such?

The Court, in Griswold, created rights from nothing. And since then this so-called right has evolved from a "right to marital privacy" for a married couple to obtain contraceptives to a right for homosexuals to engage in sodomy (Lawrence) to a right for gays to marry (Masschusetts Supreme Court). The marriage was dropped and now we have a generalized right to privacy completely unhinged from the Constitution and the basis for "loose, flexible, uncontrolled standard for holding laws unconstitutional" as Justice Hugo Black would say.

It seems Justice Black's only problem with a generalized right to privacy is that it errs on the side of individual rights rather than legislative authority. Given the Ninth Amendment's inclusive and liberal attitude towards the exercise of rights I find his objection to be somewhat backwards.

"A curious inconsistency often exists between approaches to the Ninth and Tenth Amendments....Several scholars have sought a middle position, arguing that the Ninth and Tenth Amendments are really canons of construction, instructing judges how to read the text of the Constitution. The Ninth Amendment is said to be a direction to read the rights-bearing clauses broadly, while the Tenth is a warning to read the power-granting clauses narrowly."
-New York University School of Law. Fundamentals of American Law, pg. 115.

 

[Goobieman]

So you would contend that only specific rights to privacy exist and that such specific privacy rights can only be extrapolated from explicit citations of such?

I think the point here is that the "right to privacy" as expressed in the Constitution covers actions by the government intended to gain information that it can use against its citizens; logically, it then follows that you can extrapolate this idea to similar corcumstances.

However, the right to have an abortion does NOT follow this pattern, and therefore isn't represented by the 'right to privacy' as expressed in the 4th/5th.

 

[RightinNYC]

So you would contend that only specific rights to privacy exist and that such specific privacy rights can only be extrapolated from explicit citations of such?

What would be wrong with this? The Constitution isn't designed to list every single specific protection to which individuals are entitled. The states (and federal government) are entitled to pass legislation extending privacy rights however they want.

The Constitution only says that there is "freedom of speech," a "right to be secure in persons and homes," and a "right to a speedy and public trial," yet we have hundreds of other laws that detail exactly what each of those terms means. Why not the same approach for privacy?

 

[JMak]

So you would contend that only specific rights to privacy exist and that such specific privacy rights can only be extrapolated from explicit citations of such?

No. I contend that there are privacy interests in the Constitution. The BoR explicitly cites rights that the government may not infringe (though, that's been no barrier to our branches of government). That it does not explicitly cite a privacy right doesn't mean that the Constitution, though, doesn't address privary interests. You see this in the 4th and 5th amendments where the BoR doesn't grant citizens total immunity from governmental searches and seizures but instead pits the government's interest in public order against the individual's liberty interest. The problem is that this privacy interest has been totally unhinged from the Constitutional text and turned into an enumerated right and has been abused to strike down laws that supposedly violate this invented right. Just like the "liberty of contract" nonsense the Court dabbled in before.

It seems Justice Black's only problem with a generalized right to privacy is that it errs on the side of individual rights rather than legislative authority. Given the Ninth Amendment's inclusive and liberal attitude towards the exercise of rights I find his objection to be somewhat backwards.

I don't follow.

"A curious inconsistency often exists between approaches to the Ninth and Tenth Amendments....Several scholars have sought a middle position, arguing that the Ninth and Tenth Amendments are really canons of construction, instructing judges how to read the text of the Constitution. The Ninth Amendment is said to be a direction to read the rights-bearing clauses broadly, while the Tenth is a warning to read the power-granting clauses narrowly."
-New York University School of Law. Fundamentals of American Law, pg. 115.

Convenient for those who disrespect the Constitution's foundation for limited government the Constitution's limited role for the Courts.

 

[Ethereal]

I think the point here is that the "right to privacy" as expressed in the Constitution covers actions by the government intended to gain information that it can use against its citizens; logically, it then follows that you can extrapolate this idea to similar corcumstances.

However, the right to have an abortion does NOT follow this pattern, and therefore isn't represented by the 'right to privacy' as expressed in the 4th/5th.

Just because certain practices may not fall under the penumbra of a right does not mean said right is nonexistent.

What would be wrong with this? The Constitution isn't designed to list every single specific protection to which individuals are entitled. The states (and federal government) are entitled to pass legislation extending privacy rights however they want.

But wouldn't this construction conversely permit legislative bodies to retract or withhold privacy rights?

The Constitution only says that there is "freedom of speech," a "right to be secure in persons and homes," and a "right to a speedy and public trial," yet we have hundreds of other laws that detail exactly what each of those terms means. Why not the same approach for privacy?

You're comparing explicit rights to an implicit one. The very fact that a right to privacy is not explicitly mentioned or outlined in the Constitution means it is far more vulnerable than those which are. It's easy to maintain the integrity of explicit rights against over-zealous legislators; the same cannot be said for implicit ones. I simply wish to err on the side of liberty.

No. I contend that there are privacy interests in the Constitution. The BoR explicitly cites rights that the government may not infringe (though, that's been no barrier to our branches of government). That it does not explicitly cite a privacy right doesn't mean that the Constitution, though, doesn't address privary interests. You see this in the 4th and 5th amendments where the BoR doesn't grant citizens total immunity from governmental searches and seizures but instead pits the government's interest in public order against the individual's liberty interest. The problem is that this privacy interest has been totally unhinged from the Constitutional text and turned into an enumerated right and has been abused to strike down laws that supposedly violate this invented right. Just like the "liberty of contract" nonsense the Court dabbled in before.

It seems the problem isn't necessarily the concept of a right to privacy but rather the manner in which the judiciary has implemented it and to what practices it may apply. Would you agree?

I don't follow.

To me it seems his only objection to a generalized right to privacy is that it may be used to strike down laws; hence his main concern is that liberty may impede the efforts of legislators. Perhaps I am mistaken.

Convenient for those who disrespect the Constitution's foundation for limited government the Constitution's limited role for the Courts.

I'm not sure how this applies to my quotation. A liberal and broad interpretation of rights in conjunction with a narrow interpretation of governmental powers errs totally on the side of limited government. Moreover, a canon of construction is not an invitation to extend the role of the judiciary, so I'm not sure I see your point in that regard.

 

[Goobieman]

Just because certain practices may not fall under the penumbra of a right does not mean said right is nonexistent.

This is true.
However, if the right does not specifically fall under one of the enumerated rights, then there is serious question as to how much protection said right is afforded by the Constitution.

But then, that wasn't the point I was making.

 

[RightinNYC]

But wouldn't this construction conversely permit legislative bodies to retract or withhold privacy rights?

Of course, just like legislative bodies retract or withhold particular speech rights, gun rights, search/seizure rights, and trial rights.

You're comparing explicit rights to an implicit one. The very fact that a right to privacy is not explicitly mentioned or outlined in the Constitution means it is far more vulnerable than those which are.

One could also say that the fact that it's not explicitly mentioned means that it doesn't merit the same level of protection as rights that are explicitly mentioned. If the right to bear arms, a right that is explicitly mentioned in the constitution, can be abrogated strongly by state and federal legislation, then why should a right to "privacy" be sacrosanct?

Further, the fact that "privacy" isn't explicitly mentioned in the Constitution doesn't mean that the main elements of it aren't there. In 1789, there were no things like emails, wiretaps, medical records, etc. The 4th Amendment covered the majority of things that would conceivably be considered private.

It's easy to maintain the integrity of explicit rights against over-zealous legislators;

How do you figure? There are fights over what explicit rights mean every day.

the same cannot be said for implicit ones. I simply wish to err on the side of liberty.

And that's completely reasonable, but how do you define liberty? I'm simply arguing that the Constitution doesn't explicitly need to protect privacy for there to be liberty. The Constitution wasn't intended to protect "liberty," it was designed to lay out a framework for what broad types of rights could not be infringed upon. Everything else is up to the people.

 

[JMak]

Just because certain practices may not fall under the penumbra of a right does not mean said right is nonexistent.

Penumbra...you know what that word is, right? A shadow eminating from something. Using this logic any "right" could be divined from those shadows. I don't see the legitimacy in that.

You're comparing explicit rights to an implicit one. The very fact that a right to privacy is not explicitly mentioned or outlined in the Constitution means it is far more vulnerable than those which are. It's easy to maintain the integrity of explicit rights against over-zealous legislators; the same cannot be said for implicit ones. I simply wish to err on the side of liberty.

So we adopt an invented right to privacy that has no discernable standard or construct to...protect liberty? No thanks.

It seems the problem isn't necessarily the concept of a right to privacy but rather the manner in which the judiciary has implemented it and to what practices it may apply. Would you agree?

I would. An implied judicial review authority has evolved into judicial supremacy.

To me it seems his only objection to a generalized right to privacy is that it may be used to strike down laws; hence his main concern is that liberty may impede the efforts of legislators. Perhaps I am mistaken.

You are.

Blacks' concern was that such a right constitutes a loose, flexible, uncontrollable standard that invites judicial mischief, such as striking down laws as unconstitutional that otherwise would have passed muster.

My concern on this is that this evolution from review to supremacy has, in this instance, led to the invention of a right which has restricted liberty. Liberty in the sense that this invention of a right has short-circuited the democratic process for our citizens to exercise their liberty. Rather than settling political questions politically, judicial supremacy is rendering the ballot box useless.

I'm not sure how this applies to my quotation. A liberal and broad interpretation of rights in conjunction with a narrow interpretation of governmental powers errs totally on the side of limited government. Moreover, a canon of construction is not an invitation to extend the role of the judiciary, so I'm not sure I see your point in that regard.

The philosophy that you quoted would doesn't recognize the proper limited role of the Judiciary, hence, it's a convenient philosophy for those interested in expanding the authority of the courts relative to the other branches.

And it may not be an invitation but that would be the practical result as, again, as Black phrases it, "loose, flexible, and uncontrollable standards" would inevitably lead to inconsistent applications, unpredictable decisions, and unreliable precedents, imo.

 

[Ethereal]

This is true.
However, if the right does not specifically fall under one of the enumerated rights, then there is serious question as to how much protection said right is afforded by the Constitution.

Why would there be serious question as to how much protection a right is afforded by the Constitution? The Constitution makes no mention as to the relative primacy or importance of explicit or implicit rights, so why would such a determination be necessary or even correct?

Of course, just like legislative bodies retract or withhold particular speech rights, gun rights, search/seizure rights, and trial rights.

Well, this I cannot agree with. Our rights are not to be infringed upon. Legislation must pass a litmus test per the Constitution, not the other way around.

One could also say that the fact that it's not explicitly mentioned means that it doesn't merit the same level of protection as rights that are explicitly mentioned. If the right to bear arms, a right that is explicitly mentioned in the constitution, can be abrogated strongly by state and federal legislation, then why should a right to "privacy" be sacrosanct?

One, I do not understand why an explicit right would be afforded more protection than an implicit one as there is no guiding principle or instruction contained within the Constitution that outlines such a criteria, and two, the abrogation of an explicit right does not rationalize the abrogation of an implicit one, or would you disagree?

Further, the fact that "privacy" isn't explicitly mentioned in the Constitution doesn't mean that the main elements of it aren't there.

Of course. I believe these "main elements" in conjunction with the Ninth Amendment legitimize the concept of generalized privacy rights.

In 1789, there were no things like emails, wiretaps, medical records, etc. The 4th Amendment covered the majority of things that would conceivably be considered private.

I'm not sure I follow. Apologies.

How do you figure? There are fights over what explicit rights mean every day.

This is a good point. Allow me to rephrase, it's easier to defend explicit rights against legislators than it is implicit ones.

And that's completely reasonable, but how do you define liberty?

I see it as the ability to be free of unreasonable government intrusion on one's life and property; basically the concept of negative rights. I feel that privacy would fall under such a definition.

I'm simply arguing that the Constitution doesn't explicitly need to protect privacy for there to be liberty.

I agree that, in theory, privacy as an implicit right would serve the interests of liberty just as well as it would an explicit right, but in practice it seems less likely. You even said it yourself that perhaps implicit rights should not be afforded the same level of protection as explicit ones.

The Constitution wasn't intended to protect "liberty," it was designed to lay out a framework for what broad types of rights could not be infringed upon.

These concepts seem inclusive to one another as natural rights are an extension of liberty.

Everything else is up to the people.

How does an enumerated right to privacy complicate this?

 

[RightinNYC]

Well, this I cannot agree with. Our rights are not to be infringed upon. Legislation must pass a litmus test per the Constitution, not the other way around.

Well yes, but the point is that legislative bodies do have a large amount of authority to limit those rights within the context of the constitution. "Privacy" is no different from any of those and doesn't deserve some special protection.

One, I do not understand why an explicit right would be afforded more protection than an implicit one as there is no guiding principle or instruction contained within the Constitution that outlines such a criteria,

Because it's explicit?

and two, the abrogation of an explicit right does not rationalize the abrogation of an implicit one, or would you disagree?

Are you arguing that although explicit rights such as speech and free exercise of religion can (and are) abrogated and legislated in many ways, implicit rights such as the right to privacy should not be?

Of course. I believe these "main elements" in conjunction with the Ninth Amendment legitimize the concept of generalized privacy rights.

I'm not sure I follow. Apologies.

Nowadays, when we think of "privacy," we think of things like warrantless wiretapping, snooping in emails, medical records, birth control, abortion, etc. When the framers drafted the Constitution, they didn't use the word "privacy" to describe any rights they were creating. However, they did create a right for individuals to be free of search and seizure of their homes and persons. In 1789, "privacy" consisted primarily of not having people search your house or go through your papers.

My point is that if we traveled back to 1789 and asked the framers why there was no "right to privacy" in the Constitution, it's likely that they would give us a strange look and point to the fourth amendment. When we say that "there is no right to privacy" in the Constitution, we mean that there is no right to privacy as we define the word.

This is a good point. Allow me to rephrase, it's easier to defend explicit rights against legislators than it is implicit ones.

Agreed.

I see it as the ability to be free of unreasonable government intrusion on one's life and property; basically the concept of negative rights. I feel that privacy would fall under such a definition.

Assuming this is true, we still have to determine what constitutes "unreasonable" intrusion. The way that these things are defined is through legislation. While you might feel that that right grants people the ability to have abortions or do drugs in their own homes, someone else might not find it unreasonable for the government to regulate those things. Rather than let a court decide what our society deems "unreasonable government intrusion," legislators are tasked with determining the lines.

I agree that, in theory, privacy as an implicit right would serve the interests of liberty just as well as it would an explicit right, but in practice it seems less likely. You even said it yourself that perhaps implicit rights should not be afforded the same level of protection as explicit ones.

At the very least, I don't see how it could be afforded a more significant protection.

These concepts seem inclusive to one another as natural rights are an extension of liberty.

How does an enumerated right to privacy complicate this?

I'm not arguing that it does, but merely that like everything else that is protected by the constitution, the text of the constitution merely places us on in a room full of blocks and gives us a few ground rules for how the blocks can be used. It's up to the legislature (i.e. the people) to determine what structure they want to build.

 

[Goobieman]

Why would there be serious question as to how much protection a right is afforded by the Constitution? The Constitution makes no mention as to the relative primacy or importance of explicit or implicit rights, so why would such a determination be necessary or even correct?

Seems pretty obvious to me -- that a right exists is one thing; the amount of protection afforded that right by the Constitution dictates to what degree the government can Constitutionally restrict that right.

Well, this I cannot agree with. Our rights are not to be infringed upon. Legislation must pass a litmus test per the Constitution, not the other way around.

Yes... and that 'litmust test' is based on the degree of protection afforded by the Constitution.

 

[JMak]

Well, this I cannot agree with. Our rights are not to be infringed upon. Legislation must pass a litmus test per the Constitution, not the other way around.

The Constitution makes room for such infringement, see the 4th Amendment protection not against any search or seizure but rather provides for such searches and seizures if they are reasonable. An obvious infringment upon a person's liberty right.

 

[American]

At this juncture, I'm not sure I would.

Seriously, as much as I might wish to protect privacy, I'm not sure how it will be possible in the face of advancing technology.

I suggest that the bounds of privacy must first be defined.