Rights and the US Constitution
by Tibor R. Machan
It is a well known refrain of some conservative legal scholars - the most famous of them being Robert Bork - that there is no constitutional right to privacy in our country. Thus, the Justices of the US Supreme Court who strike down various laws that violate such a right are supposedly engaged in judicial malpractice.
Maybe a bit of this is understandable, in light of the fact that these days nearly every wish of every outspoken group of citizens is advanced as a right. Health care, education, unemployment compensation, a minimum wage, equal pay for equal work, free attendance of college and other higher education institutions - you name it and someone will claim he or she has a right to it.
But these and many others are bogus rights - they are, in fact, demands for others to supply one with benefits whether they want to or not. As I like to put it, quite accurately but not in terms widely used, such "rights" place others in involuntary servitude.
The only rights that are genuine, bona fide individual human rights are those that fend off intruders - murderers, rapists, aggressors, robbers, burglars, trespassers and the like. These rights - basically to out lives, liberties, and property - do not require others to do anything but merely to abstain from intruding on us. Their protection doesn't coerce people to do anything they don't want to do with what is their own - their lives, their liberty, and their property.
The bottom line is that bona fide rights must be compossible, a term that means capable of mutual exercise without conflict.
Now the US Constitution takes its idea of rights from the US Declaration of Independence, which is itself grounded in the idea introduced slowly throughout Western history but developed into a full blown theory by John Locke and his followers. In the US Constitution some rights are listed - enumerated - others are not - they are left unenumerated, as the Ninth Amendment states. The right to privacy would be one of these latter kind. Those conservative legal scholars who simply ignore or demean the Ninth Amendment have some explaining to do, since their stance not only does away with the right to privacy but with, say, the rights to laugh, to cry, to write poetry, to shine one's shoes and, indeed, to take all the innumerable peaceful actions human beings take day in and day out, all the time, that they certain have a right to take.
Obviously the right to do these things cannot be listed individually; so, instead, very basic rights are mentioned, such as the right to think for oneself, speak out on issues, associate with others, be undisturbed in one's own house unless one is seriously suspected of a crime, hold on to one's wealth unless there is a genuine public need for it, and then be properly compensated if it's taken, and so forth. Many other (derivative) rights we have - among them all those I have listed and thousands of more, including the right to privacy - are referred to generally as unenumerated, in the Ninth Amendment to the US Constitution.
We may assume that the Framers were not idiots and didn't simply put that amendment in there out of absentmindedness. So, what then explains why these conservative - and some liberal - legal scholars get so exercised about courts invoking those unenumerated rights?
Here goes an educated guess: they're frightened that an uncompromising respect for all the rights the Founders and Framers had in mind - and that can be inferred from them - would take the power away from governments they like to use for their own special purposes, not as governments are supposed to use it, for protecting our rights.
It's not the first time that theorists twist the law to serve their own agendas. If we allow them to get away with it, we will eventually have none of our rights recognized.
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