Right to Privacy - is it in the Constitution?
by Tibor R. Machan
One old criticism of a more libertarian interpretation of the US Constitution, one leveled at the court when it overturned a Connecticut law banning contraception and when it spoke of the right to privacy in Roe v. Wade, is that no right to privacy is mentioned in that famous legal document. And there certainly is none listed explicitly, not at least in the original version.
However, the US Constitution has contained the Ninth Amendment from the start. And it states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." What this means is hardly subject to rational dispute - there are other rights we have besides those listed in the Bill of Rights or anywhere else in the Constitution.
OK, but how are we to determine what those rights are?
Actually, it shouldn't be all that difficult to answer that question, given that before the US Constitution was produced by the Framers, there was the Declaration of Independence, which many of those same Framers signed. And in that statement - for it is not an official legal document but a succinct, some would say even sketchy, statement of the Founders' political philosophy - it is made clear that those who founded this country could agree that "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 rights 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 most likely to effect their safety and happiness."
A consistent reading of this passage implies, plainly, that we have the right to do anything that does not violate others' rights. So we have, indeed, an abundance of rights, contrary to what many champions of big government, Right and Left, would admit. But there is more.
The Bill of Rights lists some of the rights the Framers believed needed special mention - they didn't wish there to be any misunderstanding about their seriousness about these rights. Among them the First Amendment, the second and the fourth stand out. And these clearly presuppose the right to liberty or privacy.
Why, for example, would it be wrong for the government to carry out an unreasonable search if those being searched didn't have a right to be left alone unless cause could be shown that they were likely to be guilty of a crime? It makes no sense. A traditional monarchy, for example, isn't bound by such restraints since it doesn't recognize individual rights to liberty or privacy. But the Framers overthrew a monarchy precisely on grounds that it violated individual rights. Then there is the somewhat belated 14th Amendment in which it's explicitly stated that "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."
So, it is clear enough (to at least this lay but not entirely unschooled US citizen) that the unenumerated rights mentioned in the Ninth Amendment can very reasonably be said to include the right to liberty and/or privacy.
Such a right is a very broad one, of course, and our public officials, including among them members of most courts, can understandably be hesitant about admitting that it is one of our operational constitutional rights. For if they do admit this, it would pretty much bring to a screeching halt the bulk of meddlesome government regulations and related public policies which these officials wish to keep in place for a variety of reasons.
But what they wish for is not relevant. What is relevant is that if we consider the matter reasonably - by reference to the meaning of the terms involved (which is how the Framers signaled their intentions) - then the US Constitution was devised in part to make sure that rights not enumerated in it would be protected, and that one of those rights surely must be the right to liberty or privacy.
As I suggested above, this reading flies in the face of the wishes of nearly all politically active folks in our country. They all want government to do something or other to the rest of us that would of course limit our liberty and privacy. Yes, such a right clearly makes banning smoking pot in one's home unconstitutional. It would require overturning bans on prostitution, so long as it's confined to private realms. And there is an inordinately long list of rules and regulations across the land that this right would render unconstitutional, stuff that is cherished by Left and Right alike, with only minimal variation.
What is so upsetting to so many people is that a principled approach to politics will not make it possible for them to fight just for those liberties they prefer, leaving the liberties they dislike limited by government. And so they try against all reason to squeeze out of the Constitution a system of government that favors their own liberties and their own limits on other people's liberties. But, in fact, an honest reading of that document makes this exercise a futile one.
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