What is a right?
A few folks (like these guys) are taking issue with the claim that there is no right to privacy. I think it’s a trick question. There is no right to privacy specifically enumerated in the Constitution. Some folks seem to think that the ninth amendment (say, are we using that one . . . I think we’re only using the third at the moment) enumerates that right, which acknowledges unenumerated rights, is applicable. Or that the fourth amendment confers such a right. The ninth says:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
If we assume that the ninth means what it says (our courts have consistently ruled that most amendments don’t actually mean what they say), how do we identify those rights? Is there really a right that journalists have that allows them to break laws? I tend to think not. There could some danger in recognizing rights not enumerated in the Constitution (ownership of slaves was thought to be a right once).
So, gentle reader, where do unenumerated rights come from? Are they what the people say they are? Are they what the .gov tells us they are?
Beats me. Your turn.
Update: Jon says in comments:
Simply put, the Declaration of Independence and the Constitution of the United States are documents that define what the government limitations are. Confused People tend to believe those documents are intended to limit the citizens.
The Right to Privacy of the Citizens is property of the Citizens because it has not been explicitly given to the government by these documents.
Sounds like a start. I’ve read where some of the founders actually opposed a Bill of Rights because they figured a list would mean other rights didn’t exist. It is important to clarify that the Constitution typically limits or grants powers to the .gov.
Update 2: Blake has a whole lot more than I expected anyone to write about the subject.
August 11th, 2005 at 10:06 am
building a loooong post on that at the moment. I’ll let you know when it’s done.
August 11th, 2005 at 10:22 am
Simply put, the Declartion of Independance and the Constitution of the United States are documents that define what the _government limitations_ are. Confused People tend to believe those documents are intended to limit the citizens.
The Right to Privacy of the Citizens is property of the Citizens because it has not been explicitly given to the government by these documents.
August 11th, 2005 at 12:17 pm
I don’t think anyone argues that the ninth amendment specifically enumerates that right. It does not. But the fourth amendment makes no sense without some expectation of privacy, and the ninth amendment stipulates that just because a right isn’t enumerated doesn’t mean it ain’t there. The ninth is, essentially, a counter-argument to the silly argument that there’s no protected right to privacy because such a right isn’t enumerated.
August 11th, 2005 at 12:22 pm
Tom, I realize that but apparently am struggling with sentence structure today. :0
August 11th, 2005 at 1:45 pm
I got the concept from a book called “Restoring The Lost Constitution”.
It’s a difficult read. Lot’s of legal and precedent references.
One thing that stuck with me was this metaphor (written from memory):
The United States is supposed to be structured such that government limitations were like islands in an ocean of freedom. What we have moved to is a structure where citizen’s freedoms are like islands in an ocean of government restrictions.
I agree.
August 11th, 2005 at 3:17 pm
I used this opportunity to write a long winded post about rights over at my place. http://nashvillefiles.com/blog/archives/001019.html
By the way, Jon….ever since reading “Restoring the Lost Constitution,” I’ve used that same quote a lot. It’s a perfect description of where we are today.
August 11th, 2005 at 3:18 pm
Those Darn Unenumerated Rights and the 9th Amendment
Today SayUncle asks “What is a right?” Specifically, what are the rights that fall under the 9th Amendment. I had been meaning to write some on this, so I think that at SayUncle’s prompting, it makes for a perfect time….
August 14th, 2005 at 10:22 am
One thing about a right, if someone else must provide it for you, it isn’t a right…such as healthcare or education. On the other hand, rights are to be secured by law, according to the Preamble of the Constitution.
August 14th, 2005 at 11:42 pm
[…] Say Uncle discusses ‘What is a Right?’ […]
August 15th, 2005 at 9:27 am
[…] In my discussion of What Is A Right?, reader Ron W. writes: One thing about a right, if someone else must provide it for you, it isn’t a right…such as healthcare or education. […]
August 15th, 2005 at 5:03 pm
I tend to think of “rights” as opposed to “privileges” (sp?). For instance, the argument comes up with regard to the “right to life” espoused by the anti-choice side of the abortion debate.
If there is a right to life, then the death penalty should be abolished, as that legal penalty renders life a privilege, and not a right. A driver’s license, on the other hand, is a privilege, revocable in the face of a history of traffice tickets, accidents, drunk driving.
Thanks for the opportunity to share my $0.02.
August 15th, 2005 at 6:02 pm
Bob, that argument proves too much. Most of us also think there’s a right to liberty and property, but both can be taken away after due process as punishment for a crime, and both can be infringed somewhat even without a crime.