Friday, November 04, 2005

Is there a right to privacy in the Constitution?

My new friend Greg Prince at Uncorrelated has written a thoughtful and thought-provoking post on whether or not the Constitution as is includes a right to privacy, a response in part to Dan Savage's suggestion at The Stranger that Democrats propose a so-called "Right to Privacy" amendment. It's an interesting idea, and Democrats might to well to go ahead with it (would Republicans or conservatives more specifically come out against privacy?), but, like Greg (and liberals generally) I tend to think that the Constitution already includes the right to privacy -- it's just not mentioned by name. (Andrew Sullivan weighs in here, John Cole here.)

Here's what Justice William Douglas wrote on behalf of the majority in Griswold v. Connecticut, a key privacy case that validated the use of contraception by married couples:

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. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender tohis detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Fourth and Fifth Amendments were described... as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life."

We have had many controversies over these penumbral rights of "privacy and repose." These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

So then, in this case:

We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

I am not a lawyer and certainly not a constitutional scholar. And I admit that there are powerful and persuasive arguments against this "right" to privacy.

An amendment could help, no doubt, but we who hold that the Constitution already includes the right to privacy must be more vocal in our defence of that right and in our opposition to those who would take that right away from the American people.

America is a liberal country, liberal in its founding political philosophy and liberal in its ideals. Liberalism holds that there are by nature only limited and narrow justifications for the abrogation of privacy, individual and otherwise, in civil society.

Human beings possess by nature the inalienable rights to life, liberty, and the pursuit of happiness. In most cases, when the rights of one do not impede the rights of another or others, they must be able to pursue happiness in private. The Framers of the Constitution surely knew that. They may not have written the word "privacy" into the Bill of Rights, but it is inconceivable that they, good liberals that they were, would have denied a fundamental right to privacy to Americans.

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