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Right to Privacy

Egalia is usually a disingenuous, dishonest political hack. But even a broken clock is right twice a day (unless it’s a military clock). She was right once before, wrong a bunch, and now is right again on a Right To Privacy Amendment:

Because the right to privacy is the basis of the Griswold v. Connecticut (1965) ruling, which found that married women are too allowed to use birth control, and since said ruling was used as precedent in Roe v. Wade, conservatives are forced to forever argue that American citizens do not, and should not, have a right to privacy.

As Savage points out, in a full-fledged campaign for a Right to Privacy Amendment, conservatives would scare the public to death if they seriously argued against it. Yeah, I know, they already scare most of us.

I do think abortion should be legal but don’t think privacy has anything to do with abortion and that Roe v. Wade was a crap ruling. However, I do like the idea of a specifically enumerated right to privacy because there isn’t one specifically enumerated in the Constitution and this would put an end to that debate. And putting an end to that debate would keep some Republicans from looking silly. Well, unless they opposed it.

Conversely, it seems that support for this amendment may finally be an admission from the left that there is, in fact, no right to privacy specifically enumerated in the Constitution. Damned if you do . . .

Update: JJ asks:

Why do people believe that they must go to the government to request freedoms and rights we already possess? Have they never read the Constitution? Do they not understand how our government was founded? Are they even able to read?

Well, let me be the first to say that how it was founded and what it currently is are two very different things.

43 Responses to “Right to Privacy”

  1. J. J. Horner Says:

    I disagree with her. As I’ve said before, there is no right to privacy in the Constitution. There is a right to privacy granted by God, in my opinion. The Bill of Rights is not a listing of the rights of the citizenry. It is a listing of “various exceptions to powers not granted”, and now we see it is affording “a colorable pretext to claim more than were granted.”

    In other words, a constructionist view of the Constitution lays out that all powers already belong to the citizenry, and the citizenry grants powers to the Federal Government. By including a Bill of Rights, the left-leaning dimwits have the ability to claim government powers not granted, specifically the power to limit our gun rights, the power to limit our ability to raise our kids, and the power to limit free speech (McCain/Fiengold) .

    Here the left-leaning people are claiming that we have to ask the government for a right we already hold. It seems that the non-constructionists on the right and left have really hosed us.

    Read the Federalist Paper #84.

  2. SayUncle Says:

    Do you not think that specifically enumerating it would be a good idea then?

  3. Brutal Hugger Says:

    Supporting a right to privacy amendment would not be an admission that there is no current constitutional right to privacy. A “belts-and-suspenders” approach to law is fairly common, and there are other instances of rights being covered by more than one amendment– just look at the civil war amendments for amendments that overlap quite a bit.

    Or look at 5th and 14th amendment jurisprudence. For due process analysis, these amendments have pretty much merged.

    And the 15th Amendment is a pretty good example of an amendment that was passed just to be sure. At the time, people figured it was covered by the 13th and 14th, but they wanted to make it explicit so as to remove any possibility of argument or controversy. A privacy amendment would serve the same function.

    I’m all for a specific amendment enumerating a right to privacy. Without it, the Robert Borks of the world are too eager to hide privacy rights behind inkblots and other silly theories.

  4. Blake Says:

    Right to privacy…9th Amendment.

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

  5. Standard Mischief Says:

    Yea, she’s a shrill, hate-mongering, irresponsible blogger. To name just one thing, her choice of using obviously photoshopped and not so obviously photoshopped images side by side kills any creditability.

    But hey, I’ll throw may support behind a amendment stating my right to privacy. There’s been a lot of chatter about whether a certain judge respects a certain amendment but that amendment isn’t number nine. The right to privacy, the right to be left alone, not hassled, not probed by our federal overloads is just one of my gazillion and counting inalienable rights. The problem is that those congress-critters fail to recognize and respect the ones that aren’t enshrined for some reason.

    Let’s add something that states that Corporate thingys can only store your private data with your permission. No credit is as bad an bad credit, but can you imagine firing Experian or Equifax because they weren’t good stewards of your privacy or credit history? They would be no longer able to peddle your private data. How about suing Choicepoint for failing to keep your identity info out of the hands of identity thieves? This would also prevent the fed-goons from hiring private data corporations to store data for them that they themselves are not allowed to store (my sneaky suspicion with why the Instant Background Check Firearm Registration BATFE goons want to keep data around for a few days instead of deleting it immediately as the statute requires).

  6. persimmon Says:

    I always thought the right to privacy was encompassed by the Fourth Amendment:

    ” 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.”

    That sounds like privacy to me.

  7. SayUncle Says:

    Then how does that enumerate a right to abortion?

    And how does it keep the .gov from compiling your medical history, etc? After all, they’re not searching nor threatening the security of your persons, houses, papers, and effects.

  8. #9 Says:

    Regardless of whether the right to privacy exists in the Constitution didn’t Roe vs. Wade create a right to privacy via the Supreme Court?

    If so, then how are no-knock laws legal?

  9. J. J. Horner Says:

    My point is that we need to draw a line in the sand. Our freedoms and rights have been diminished too much already.

    Go through the books and kick out every law that interferes with the free exercise of religion, speech, and association. Kill every gun limitation law. Kill anything that sounds as though the federal government has power outside of those powers specifically granted in the Constitution. Unless it regulates interstate commerce, conducts foreign relations, or secures our borders, kill it.

    They’ve taken too much power because we let them, or we asked them to. Knock it off.

    I know, I know. Americans don’t want the responsibility this would imply. We want a federal safety net to protect us from ourselves. We want a federal government to protect us from the local governments we put in place. We want a federal government to protect us from the results of our unwise actions. We want a federal government to build bridges, redistribute incomes, and limit those Americans who have different beliefs than we do.

    Every government regulation we call for has unintended consequences. Realize that the government will take as much power as we give it, and those of you who support more federal power only have yourselves to blame. Liberals cry that conservatives in the government want to regulate sex. Conservatives cry that liberals in the government want to regulate everything else. It’s all true.

    Stop the regulation. Kick them out of our lives.

    Okay, I’m done ranting now.

  10. J. J. Horner Says:

    Oh, and again, there are no rights in the Constitution. We have protections on the free exercise of our rights. Repeat after me: the Bill of Rights are actually protections. Read the Federalist Papers (specifically #84). My favorite part:

    I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

  11. Xrlq Says:

    The Ninth Amendment argument is pretty strained, so I agree, if you want to end all debate on whether or not the Constitution protects a general right to privacy, as opposed to the specific privacy interests covered by the Third and Fourth Amendments, for example, then pushing an explicit constitutional amendment is the best way to do it. Hopefully, courts would apply that amendment in a less ad hoc way than they have applied the “constitutional” right they invented in Griswold, which AFAIK has never been applied to situations unrelated to sex.

  12. SayUncle Says:

    JJ, You’re preaching to the converted.

    Xrlq, I figured of all people who disagree on this, it would be you. I stand corrected ;-P

  13. persimmon Says:

    It seems pretty clear that a person’s medical history is part of their “papers” and “persons” and thus protected from government invasion by the Fourth Amendment. Protecting those records from ChoicePoint is another matter, of course.

    If you want to know how this right to privacy translates into a right to abortion, you should read the Griswold and Roe rulings. I just happen to think the Fourth Amendment does a good job enumerating our privacy rights, though it does not use the word “privacy” explicitly.

  14. SayUncle Says:

    It seems pretty clear that a persons medical history is part of their papers and persons and thus protected from government invasion by the Fourth Amendment.

    I don’t think it’s clear to .gov otherwise, they wouldn’t have access to your medical records. Or, a step further, why is it illegal to travel outside the country with $10K or more cash and not report it? Isn’t what you plan on spending it on private?

  15. tgirsch Says:

    #9:

    The right to privacy was recognized in Griswold, not in Roe. Roe simply applied the precedent (poorly, some argue) that was previously established in Griswold.

    That said, I think an explicitly listed right to privacy would be a good thing. As to abortion, that’s more of a personal autonomy issue than a privacy issue, IMO, but privacy and personal autonomy are often tightly coupled.

  16. Xrlq Says:

    I don’t think it’s so much a question of whether one’s medical records are their “papers” or “effects” so much as whether or not allowing certain branches of government to examine them for certain purposes constitutes a “search” or a “seizure,” and if so, whether such search or seizure is “unreasonable.” Any purported right to privacy that is subject to a reasonableness standard (or worse, a “not unreasonable” standard), is going to be a bit more flexible than some would like.

  17. DWPittelli Says:

    Privacy is a pretty vague right. The fact that the Constitution in several places secures rights which can be more or less broadly construed to amount to “privacy” (the right against searches without a warrant by the judiciary being the clearest) does not mean that everything that a defendant’s lawyer can call “privacy” is also covered. (How about Father-daughter incest in the privacy of one’s home?)

    Notably, Roe and Griswold aren’t really about privacy — abortion and birth control are of course sold openly — they’re about the right to control one’s own body. But the idea that such personal autonomy is guaranteed by a penumbration of privacy is both constitutionally suspect, and not really followed through. Why isn’t a right to use heroin at least as clear as a right to an abortion? There isn’t even arguably another life at stake in the former case, and historically it’s pretty clear that the framers (and essentially everyone else of their time) would be less shocked by the former.

    An Amendment protecting “privacy” without further specification would be both useless and dangerous due to its vagueness. Advocates of such a broader right should either have some broad guide for which they have specific clear language, or a list of examples of what is, or is not included. Either way, what would the Amendment actually say?

    Personally I’d like an Amendment reading something like this: “It is generally the job of the criminal code to protect people from each other; it is never the job of the criminal code to protect people from themselves. Therefore, crimes must have victims, or at least prospective victims, and their seriousness must be determined by reasonable interpretations of the damage done to such victims.” This would of course legalize vices and birth control and all other victimless crimes. (It is silent on abortion, though, as its opponents are of course those who see fetuses as its human victims; there is no way a federal Amendment on abortion — either permitting or banning it –could ever pass the requisite hurdles.)

  18. _Jon Says:

    ‘The right of the people to be “secure” in their persons…’

    Secure: (http://dictionary.reference.com/search?q=secure)

    Under –
    tr. v.
    #8. To protect or ensure the privacy or secrecy of (a telephone line, for example).


    Although dictionary.com is not a legal reference, I believe that “secure” has a definition of “private”.

  19. #9 Says:

    The right to privacy was recognized in Griswold, not in Roe. Roe simply applied the precedent (poorly, some argue) that was previously established in Griswold.

    So the right to privacy first recognized in Griswold and upheld in Roe? That would mean it has been challenged and survived? So if there is a right to privacy where is it? Does it only apply to abortion? Am example, a jeweler travels with $15,000 to a diamond show and has the bad fortune to pass through Roane County. She is pulled over for a burnout brake light. Against her wishes her car is searched (it has out of state plates) and the $ 15000 is confiscated? Where is the right to privacy?

    Now suppose the same woman decides to have an abortion. No problem because it is a right of privacy? I can think of many examples where we do not have any right to privacy.

    Does Griswold apply to contested searches and no-knock laws?

  20. persimmon Says:

    Uncle, most of that website about medical records deals with how your information is handled by insurance companies and HMOs, less so the .gov. I already said that protecting your private information from private entities is another matter, not related to a Constitutional Amendment. And just because the .gov does something does not mean it passes Constitutional muster. I may just mean that no one with the resources to challenge the .gov has mounted a challenge.

    #9, thanks for the needless clarification of how Griswold and Roe relate. Like I said, “If you want to know how this right to privacy translates into a right to abortion, you should read the Griswold and Roe rulings.”

  21. SayUncle Says:

    So, you didn’t see the bit about how the .gov has access to it?

  22. persimmon Says:

    Uh, yeah. It said the government can request your medical records to verify Medicare and Social Security claims and that sort of thing. I suppose you think that’s an unreasonable search. You could get a bunch of oxycontin junkies on TennCare to show up for your privacy amendment rallies!

  23. tgirsch Says:

    #9:

    Where the hell did all that come from. #1, your example clearly runs afoul of the fourth, even without Griswold. #2, the fact that the government doesn’t always live up to constitutional principles (or judicial precedents, for that matter) does not mean that they’re not there.

  24. SayUncle Says:

    Persimmon,

    You really think that said access would be limited to those cases? If so, I have this bridge. Seriously, privacy would have to be defined. You can use medical privacy, credit history, census info, etc. to illustrate your right to privacy ain’t quite working out.

  25. persimmon Says:

    Privacy is defined in the Fourth Amendment. I suppose I should entertain the wording you’d like to add to the Constitution before I dismiss it, but I just don’t see the need. Putting the word ‘privacy’ in an amendment is not going to stop Congress or the Executive from trying to erode our privacy. The tools for preventing that are a strong, independent judiciary, vigilance and electing honest and wise people to represent us. That’s the way it has always been and will always be.

  26. #9 Says:

    #1, your example clearly runs afoul of the fourth, even without Griswold. #2, the fact that the government doesnt always live up to constitutional principles (or judicial precedents, for that matter) does not mean that theyre not there.

    I know. Privacy is not a big tent issue. We allow it to be selectively interpreted and enforced. So people will march in the street over abortion rights but sit at home when the privacy rights of safe passage with our valuables or our right to have the police ring the doorbell instead of breaking down the door.

    The point is we should be just as upset and outraged over our loss of privacy in other areas.

    So who do we see over the fact that police all over the country ignore with the courts blessing the Fourth Amendment? Seems to me privacy does need to be spelled out since it can be so easily ignored.

  27. persimmon Says:

    Privacy is not a big tent issue. We allow it to be selectively interpreted and enforced. So people will march in the street over abortion rights but sit at home when the privacy rights of safe passage with our valuables or our right to have the police ring the doorbell instead of breaking down the door.

    Every liberal I’ve ever met was outraged over all sorts of privacy erosions from drug war affronts to surveillance greivances to abuse of privilege and secrecy. I’m not sure I know anyone not concerned about their privacy. I think it’s a huge tent issue.

    Do you know who has the courage to challenge privacy erosions like seizure laws and no-knock warrants? Few Democrats. Fewer Republicans. Few corporations. Often it’s the ACLU.

    The right to privacy is not absolute. If we had absolute privacy, the police would be helpless to investigate crimes. An amendment protecting privacy would have to allow for exceptions. I want to hear this proposed privacy amendment. Does it actually exist?

  28. # 9 Says:

    Every liberal Ive ever met was outraged over all sorts of privacy erosions from drug war affronts to surveillance greivances to abuse of privilege and secrecy. Im not sure I know anyone not concerned about their privacy. I think its a huge tent issue.

    If so, then why do we not see privacy as a litmus test issue for the Supreme Court nominees? Why do people not march in protests? Where is the passion? So you say people are outraged. They don’t do anything about it. But even hint about restrictions on abortion and people are in the street with signs.

  29. persimmon Says:

    why do we not see privacy as a litmus test

    We? You might want to avoid projecting your blind, hallucinatory perceptions onto the rest of us. In the real world, privacy was and is a major issue in the nominations of Roberts, Miers, and Alito.

    You are the one who wants to amend the Constitution. Why aren’t YOU in the streets protesting? Too many abortion rights protesters in your way? Can’t leave your house because the red light cameras are all pointing at your doors? I’m afraid I can’t explain your delusions nor the sad failure of other people to live up to your expectations, but I certainly support your right to live in your own private fantasy world.

  30. SayUncle Says:

    In the real world, privacy was and is a major issue in the nominations of Roberts, Miers, and Alito.

    I disagree. It was a major issue only in the sense that privacy is a code word for abortion.

  31. #9 Says:

    You are the one who wants to amend the Constitution. Why arent YOU in the streets protesting? Too many abortion rights protesters in your way? Cant leave your house because the red light cameras are all pointing at your doors? Im afraid I cant explain your delusions nor the sad failure of other people to live up to your expectations, but I certainly support your right to live in your own private fantasy world.

    Too much coffee this morning? I am only pointing out the contrast between a high passion issue, abortion rights, and a low passion issue, privacy rights. Have you found insulting and demeaning people to be an effective why to get them to come over to your point of view? That is a page from the Howard Dean playbook. But team building is not DNC trait is it?

    The debate over privacy rights would not exist if the Supreme Court and Circuit Courts could find a copy of the Constitution and Bill of Rights and understand them as written rather than tortuously interpreting them. Rights that are enumerated in the Constitution and Bill of Rights are not rights where they are ignored or mangled by the courts. Hence they have to be spelled out in more detail so they can be actual rights.

  32. persimmon Says:

    privacy is a code word for abortion

    Code wode, legal foundation, whatever. You guys don’t actually have a proposed amendment, do you?

  33. SayUncle Says:

    Who said we did? This is called the ‘idea stage.’

  34. #9 Says:

    privacy is a code word for abortion

    Code wode, legal foundation, whatever. You guys dont actually have a proposed amendment, do you?

    You are dismissing an important point. If all we have is the ACLU to protect our privacy rights we are in serious trouble. The difference is organization. There is no effective organized movement to protect our privacy rights and that is why we see the continuing erosion of those rights. There are many organizations that protect abortion rights. While not a third rail of politics like Social Security abortion rights are a highly organized and well-funded special interest group.

    So to start off the idea stage, how do we create a well-funded and highly organized special interest group to bring back our privacy rights? Then how should the amendment be worded?

  35. tgirsch Says:

    #9:

    So people will march in the street over abortion rights but sit at home when the privacy rights of safe passage with our valuables or our right to have the police ring the doorbell instead of breaking down the door.

    Well, a few things are in play here. For one, abortion supporters simply have better activists than proper-warrant supporters, in large part because there’s an exteremely vocal group of anti-abortion activists. There’s no pro-unwarranted-search group out there making noise, which makes for something of a difficult rallying point.

    For another, people are statistically far more likely to want an abortion — or to have a loved one who does — than to be illegally searched, or know someone who is. This leads to a mentality — often, but not always, fueled by conservatives — that if you have nothing to hide, you have nothing to worry about. Not saying it’s right or fair or any of that, but it is what it is.

    But perhaps most importantly, abortion (and, more importantly even, birth control) involves someone’s body, which people tend to be exponentially more defensive over than just their stuff. Not that having your home and your stuff violated isn’t egregious, but having your control over your body violated is exponentially more so, which is why people tend to get so much more worked up about it.

    I am only pointing out the contrast between a high passion issue, abortion rights, and a low passion issue, privacy rights.

    No, you contrasted the passions of two different kinds of privacy issues: one invovling one’s person, the other involving one’s stuff. They are all privacy issues to some degree or another.

    The debate over privacy rights would not exist if the Supreme Court and Circuit Courts could find a copy of the Constitution and Bill of Rights and understand them as written rather than tortuously interpreting them.

    To make that sentence more accurate, you could simply delete the words “The debate over.” 😉

    There is no effective organized movement to protect our privacy rights and that is why we see the continuing erosion of those rights.

    The ACLU has been more effective than you might think; in fact, they’ve been vilified for it in many cases.

    So to start off the idea stage, how do we create a well-funded and highly organized special interest group to bring back our privacy rights?

    I assume you mean “besides the ACLU,” because they do it all the time. But actually I think that’s a great idea.

    Uncle:

    It was a major issue only in the sense that privacy is a code word for abortion.

    Bullshit. Do the words “PATRIOT ACT” mean anything to you? Abortion may be the privacy issue that gets the most ink, but that doesn’t make it the only thing people care about WRT privacy. (And for what it’s worth, the privacy ruling actually protected birth control, not abortion.)

  36. SayUncle Says:

    Hmmm. So how many questions was Roberts asked about the PATRIOT Act as opposed to abortion? I went to the transcripts and did a ‘find’ for patriot. Results were no instances.

  37. SayUncle Says:

    oh, and persimmon: that PATRIOT Act would also represent some privacy violations that probably aren’t covered under the fourth. National security letters, sneak a peak warrants, etc. Also, the no-fly list i would think would violate non fourth amendment privacy.

  38. tgirsch Says:

    Uncle:

    Yep, those damned Democrats believe privacy is only about abortion:

    DURBIN: Forty years later, there have been new efforts to restrict the right of privacy, attempts to impose gag rules on doctors when they speak to their patients about family planning.You saw it in the sad debate over the tragedy of Terri Schiavo, a debate that led some members of Congress to threaten judges who disagree with their point of view with impeachment.And you can find it in the eagerness to authorize the government to pry into our financial records, medical records and library records.Whether the court continues to recognize and protect America’s right to privacy will have a profound impact on every American from birth to death.In your early writings that we have to rely on here, you referred to this right of privacy as an abstraction. We need to know if that’s what you believe.

    Gee, I guess I didn’t realize that “Schiavo,” “financial records,” “medical records,” and “library records” were all euphemisms for abortion.

    No one denies that abortion was the most contentious privacy right discussed, but it was far from the only one.

    See, had you searched the transcripts for “privacy” instead of “PATRIOT,” you would have seen that while abortion was discussed frequently and prominently, it was not the only thing mentioned under the banner of privacy. In addition to the above, Feinstein questioned him extensively on privacy rights as they pertain to right-to-die cases. Leahy questioned him on the right of the government to collect and keep more and more information about us. There are several such examples.

  39. SayUncle Says:

    Whoops. Foul on my part. I forgot the whole ‘right to die’ thing. So, it’s a codeword for two things? 😉

  40. tgirsch Says:

    (Of course, that depends on what your definitions for “only” and “major” are…) 😉

  41. tgirsch Says:

    I’m pretty sure it’s a codeword for “privacy,” just don’t quote me on that. 🙂

  42. persimmon Says:

    I suppose if you could explain what “non fourth amendment privacy” is, you’d at least have a starting point for your hypothetical new amendment. So what is “non fourth amendment privacy”?

  43. SayUncle Says:

    I’ve tried and you haven’t acknowledged it. Essentially, privacy that does not involve being secure in your person, papers and effects. Such as, say, various registries, the no-fly list, etc.

After several weeks of taking Viagra, I got used to it and took the drug only on the weekends. Noticing the changes, my girlfriend started to ask me why I'm so active on weekends. I had to honestly confess everything. She was not upset but supported me. So thanks to Viagra, I made sure that I'm loved just like the way I am.