INTRODUCTION: DEAR MR. SCALIA
It is not yet clear to me whether the average American
should be amused or horrified by the recent statement made by a leading jurist
that privacy is not guaranteed in the Constitution, implying that Americans
should not assume that they have such a right.
Before we begin to dissect this diabolical imbecility, I am
inclined to share with readers a comment made by Elizabeth Gurley Flynn at her
trial in 1910 in Spokane, Washington.
The workers who tried to organize a union were being punished and their
speakers arrested, which then turned into a free speech fight. Ms. Flynn writes:
During my testimony the judge asked me upon what I based my
speeches.
I replied: “The Bill of Rights.”
He said: “But you’re not a lawyer. How can you interpret them?”
I answered: “They are in plain English, your Honor, anyone
can understand them. They were not
written for lawyers but for the people!”
It is truly amazing that conservative leaders in the
political and judicial sphere speak without thinking matters through; they act
as though Americans are not intelligent enough to understand the Bill of
Rights. These leaders either have not
read the Constitution recently or no longer remember its purpose. A close examination of the Bill of Rights
will explain my meaning.
There is a pressing need to expose this magician’s
sleight-of-hand trick the ultra-conservatives are increasingly fond of
adopting. The ruse they’ve chosen is
simple: they assert that since the word “privacy” does not appear in the
Constitution, then one must conclude there is no right of privacy. They choose to ignore all those passages
where the idea of privacy is clearly conveyed even when the word itself is
absent.
To illustrate the point, let us start with a simple parallel
example: the word “slavery” does not appear in the 1787 Constitution (it’s
first used in the 13th Amendment in 1865). Following the hypnotic effect of the
magician’s trick, should readers conclude that slavery never existed?
It pains me to say something so obvious to men and women of
such stature but state it I must: chattel slavery did exist in the United States for about two and a half centuries,
including the Colonial Era and the period from 1789 (Constitution ratified)
until 1865 (slavery abolished).
Indeed, one wonders why the 13th Amendment was needed
to abolish slavery if slavery did not
already exist—if we go with the theory that the absence of that word in the
Constitution should be interpreted to mean slavery never had a socio-cultural
reality all its own.
If the absence of the word “privacy” is being used to
suggest the right of privacy does not exist, then does not the missing word
“slavery” suggest that institution never existed as well?
OPENING
Let us see if the practice of holding enslaved persons was
expressed without recourse to the word “slavery” itself. We shall find our answer in Article IV:
“No person held to
Service or Labour in one State, under the Laws thereof, escaping into another, shall,
in Consequence of any Law or Regulation therein, be discharged from such
Service or Labour, but shall be delivered up on Claim of the Party to whom such
Service or Labour may be due.” (the spelling of “Labour” follows the
British model).
In brief, if any state allowed slavery and a slave from that
state escaped to another state, the second state must send the slave back from
whence he started—back to the slave-owner. Even though the word “slavery” is not found anywhere
in the Constitution prior to 1865, a slave-owner had the right to expect
another state to honor this constitutional provision to help him recover his
runaway slave.
Whenever we study American history, it is helpful to take a
look at actual social conditions which preceded and inspired the articles and
amendments found within the Constitution.
If a person today can be tricked into believing that there
is no right of privacy because that word
does not appear in the Constitution, it seems likely there are other people who
can be fooled into believing slavery never existed in the country—the absence
of that word in the Constitution must
mean slavery wasn’t real, either!
That is the parallel between the words “slavery” and “privacy”
and the various corresponding social phenomena to which both refer: given to
the reader half-mockingly, of course—and yet quite seriously as well.
SLAVERY
It is not until the Thirteenth Amendment that the word
“slavery” is added to the Constitution:
Section 1. Neither slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place subject to their
jurisdiction. (Ratified December 1865).
To claim slavery did not exist before 1865 because the word
“slavery” was not part of the 1787 Constitution is certainly rather foolish but
no more foolish than arguing the right of privacy does not exist because the
word “privacy” was not part of the Constitution. That is the cheapest sort of sophistry and
exposes the so-called “originalists” as little more than judicial con
artists.
The late Supreme Court Justice Antonio Scalia tried his hand
at this magic trick but met with limited success, understandably so. Still, he broached the subject and ran up a
trial balloon, leaving the way open for other jurists to attempt to get the
balloon a little higher off the ground next time.
Justice Scalia said during a televised interview with Chris
Wallace: “There is no right to privacy.
No generalized right to privacy.”
While it is true Justice Scalia defended
privacy rights in a number of cases that came before the Court, he nevertheless
sometimes maintained the opposite.
These conservatives get wrapped up in highly abstract entanglements
while trying to create a toehold for their right-wing viewpoints concerning
politics and religion; they drift away from the beauty and spirit of the Constitution
and from the ideals of the Revolution that gave rise to its creation.
In point of fact, many of the amendments in the Bill of
Rights addresses one or more aspects of a person’s right of privacy, at least when
a reader takes the time to understand
what they actually say. As Elizabeth
Gurley Flynn remarked: “They are in plain English, your Honor, anyone can
understand them. They were not written
for lawyers but for the people!”
THE FIRST AMENDMENT
“Congress shall make
no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press, or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.”
Let us consider the state of affairs at the time the
Constitution was adopted in order to compare the colonists’ subjugation under
the British crown with their new lives as free-born Americans. In general, one of the aims of the Revolution
was the acquiring of certain fundamental rights that were not granted under the
reign of King George III.
The First Amendment guarantees freedom of religion, speech,
press, and the right of peaceful protest.
Nearly everyone appears to be agreed upon this point since that is what
the language states--which is to say an American may think and speak freely.
No one can command you,
as an American, to believe something not natural or sympathetic to your conscience—liberty
of conscience is a fundamental right guaranteed to us all. You cannot be told what to think or believe:
your thoughts and your beliefs are your own, private, and protected from coercion.
This legal and moral liberty represents a fundamental
dimension of privacy, does it not? The
freedoms of the First Amendment do not limit but expand the rights of privacy
for Americans. Perhaps there is no
greater sense of privacy than this right to believe as you choose and to speak
your own mind to family and friends without fear of persecution or legal repercussion.
Every amendment in the Bill of Rights reflects the Founding
Fathers’ keen awareness of rights denied their fellow colonists under British
rule; the adoption of these ten amendments was meant to overturn a long-standing
suppression of individual rights in the historical relationship between ruler
and ruled, between monarchy’s prerogatives and the colonists’ required obedience
to royal authority. The colonists were
not free to discuss their grievances or organize a movement to bring about
change--it was even unlawful to criticize the king and royal governors!
The first amendment takes that reality and turns it around. Freedom of speech remains a weak liberty,
indeed, if it fails to include the right of Americans to criticize their
government. Liberty of conscience—including
the privacy of one’s personal convictions—must likewise be protected from the
incursions of governmental authority.
Understanding the First Amendment is essential to appreciating
how privacy is recognized and protected in the Constitution. It is not the only amendment to do so, however;
let us turn to the rights embedded in the other amendments—which will help us develop
a better understanding of the purpose and role of the Bill of Rights when taken
as a whole.
THE SECOND AMENDMENT
“A well-regulated
Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.”
The Second Amendment is much in the news lately; its wording
has been hotly debated due to the on-going factional battle between advocates
of unrestricted “gun rights” and their opponents who favor tighter “gun control”
laws.
Fortunately, we need not descend into the acrimony of that
debate. We simply acknowledge that Americans
have the right to own and bear arms as the Supreme Court ruled in 2008.
This decision reinforces the
understanding that Americans may defend their homes--
and right of privacy--by force of arms if necessary to hold off
intruders, robbers, or trespassers.
Prior to the Revolution, the king of England ordered the
colonists to disarm to prevent rebellion; the Founding Fathers and their
revolutionary compatriots refused to comply.
Instead, they hid gunpowder and other military supplies at Concord and
other towns; it was the British Army’s mission to find and destroy these arms
on a bright spring day in April 1775 that served as the spark for the American
Revolution.
One cannot help but note the anti-British connection between
the First and Second Amendments. The framers of the Constitution were intent on
countering the arbitrary abuses of royal authority that had plagued the
colonies for years. Trying to head off
the gathering storm, the king also forbade colonists from gathering in groups
larger than three or four. The First
Amendment in turn specifically recognizes “the right of the people peaceably to
assemble”.
The First and Second Amendments, taken together, granted liberties
the royal crown strove hard to prohibit.
Owing to the very nature of the rights granted in these two amendments,
the right of privacy is found alive and well in every word and breath;
otherwise, these other liberties would be virtually meaningless!
It is prudent to
recognize how each amendment anticipates and amplifies the rights found in
adjoining amendments and how they in turn reinforce the rights already
recognized.
THE THIRD AMENDMENT
The King and Parliament passed four Coercive Acts which did
not sit well with the colonists. The first, the Quartering Act, was
particularly offensive. The Third
Amendment soon fixed it:
“No soldier shall, in
time of peace be quartered in any house, without the consent of the Owner, nor
in time of war, but in a manner to be prescribed by law.”
The expression “A man’s home is his castle” is a common bit
of folk wisdom as well as actual legal doctrine and became a popular saying: Americans
in their home may lead private lives free from harassment, persecution, and the
unwanted intrusions of others. Wherever
the king and his soldiers denied colonists their rights and infringed upon
their privacy, the Bill of Rights would be the Founding Fathers’ reply.
Perhaps no amendment demonstrates the implied right of privacy
more clearly than the third for it juxtaposes the right of British soldiers to
enter any American home before the
revolution with what the new Constitution expressly prohibited after the Revolution.
The Third Amendment ended a much-detested practice: British
soldiers could demand that towns provide them rooms for meetings. Under the Quartering Act, British soldiers
could even enter the homes of colonists unannounced and without warrant; they
could demand to be fed and bedded; stories abound of how they savagely broke furniture
for sport and left considerable wreckage in their wake.
The Founding Fathers aimed to make sure no soldier could ever
again come barging into a house to demand food and lodging while taking over
the house. Read again most carefully
Amendment III to feel its full impact:
“No soldier shall, in
time of peace be quartered in any house, without the consent of the Owner, nor
in time of war, but in a manner to be prescribed by law.”
This language is so unmistakable that the third amendment
has engendered the least amount of litigation.
Indeed, it is the only Bill of Rights amendment that has never led to a case
requiring resolution from the Supreme Court.
Its language is too clear to leave much doubt as to its intent: another layer of protection for the right of privacy.
Not bad for a document wherein certain Scalia-inspired followers
now wish to throw their hands up in the air to exclaim they cannot find even
the smallest whiff of the notion of privacy!
THE FOURTH AMENDMENT
Not only are Americans happily free to exercise all the
rights guaranteed to them by the first three amendments, we can note how--taken
together--they boldly anticipate the language of the Fourth Amendment: that which
comes closest to an open assertion of the right of privacy:
“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.”
Not only were the provisions of the Quartering Act knocked
out with a bang, the Founding Fathers aimed to make sure no soldier could ever
again come barging into houses to demand an immediate expression of loyalty to
the Crown while they looked for papers to seize with which to try and convict
the householder of a crime. If that is
not a guarantee of privacy, then what is?
The first four amendments make abundantly clear that
Americans are protected in their liberties in distinct and substantive ways:
freedom of religion, speech, press and peaceful protest; freedom to bear arms;
freedom from soldiers being forced upon them as unwanted boarders; and freedom
“to be secure in their persons, houses, papers, and effects”. Their houses and their lives all have these many
protections to protect privacy!
Inasmuch as the vast majority of law-abiding citizens would
never have an occasion to be served with a warrant at all, their right to
privacy is virtually absolute. If this
may seem like rhetorical excess, I remind the reader that it is not my intent
to examine the question of privacy from every possible legal angle and
ramification. That job is better left to
legal scholars.
Rather, in contradistinction to the notion that the right of
privacy “does not exist” at all--because the word is not found in the Constitution--I
merely wish to illustrate the many ways in which a person’s right of privacy can
be constitutionally derived despite the word’s absence.
These first four amendments clearly demonstrate that such a
concept of privacy is recognized by the
Constitution. To suggest otherwise is to
misread the meaning of the amendments themselves as well as the larger purpose
of the Bill of Rights.
THE FIFTH AMENDMENT
Amendment V is one of the most fascinating amendments for
the pungency of its language and the unmistakable manner in which it reveals the
reasoning of the Founding Fathers; it is nearly as powerful as the Fourth
Amendment when defining the rights and liberties of Americans:
“No person shall be
held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land
or naval forces, or in the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the same offence to be twice
put in jeopardy of life or limb, nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use
without just compensation.”
Law-abiding readers may not think of guaranteed protections for
individuals caught up in the justice system as having much to do with their own
right of privacy, but consider this scenario: the difference between a
defendant being represented by an attorney and its absolute opposite--not being
guaranteed access to a lawyer at all.
The need to set the highest standards possible when dealing with the arrest
of an individual necessarily means that his basic rights are to be recognized and
protected, even when he is suspected
of committing a crime.
If it is true, then, that suspects in criminal proceedings
are afforded these procedural rights, how much more is guaranteed to the
law-abiding citizen in the way of fundamental rights?
Truth to tell, it is a challenge to know how best to begin
to unpack the rights found in the Fifth Amendment! Certainly, the phrase “nor be compelled in
any criminal case to be a witness against himself” jumps out with special
vigor. When we see that a defendant
cannot be forced to speak or act against his will, the law recognizes the
implied right of privacy: thus, a defendant’s right to remain silent is
protected.
Even as the First Amendment protects freedom of speech, the
Fifth Amendment honors that same right while adding complexity and color to its
spirit.
Americans cannot be intimidated, threatened, or physically
coerced into giving testimony against their will, since such testimony risks
being either incriminating or perjurious (from fear of bodily injury or the
threat of further harassment and persecution.)
If this point is not already abundantly clear, the Fifth Amendment
anticipates the short but pithy language of the Eighth Amendment, to wit: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.”
The legal protections are largely self-explanatory yet
before moving on it is important to observe that the Fifth Amendment takes
special care to protect a defendant against double jeopardy; it also introduces
one of the Constitution’s most historic phrases: “without due process of
law.”
We shall continue with our examination of this amendment after
a brief detour to review the underlying political philosophy of the Declaration
of Independence and the Constitution.
ALL MEN ARE CREATED EQUAL
All of the amendments so far examined appear to affirm the Constitution’s
recognition of the inherent human dignity of all Americans. The Founding Fathers drank deeply from the
well of natural law and natural rights. When
Thomas Jefferson penned the Declaration of Independence he wrote “All men are
created equal”. It is a beautiful phrase
but we should never forget or minimize its genesis in the philosophy of Locke
and others who upheld the doctrines of this moral and political philosophy.
Men like Jefferson, Adams, and Paine understood perfectly well
the theoretical implications of what they were saying: human beings are born with rights
and the Constitution must recognize and protect these rights. The sentiment was first announced in the
Declaration of Independence:
“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 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 seem most likely to effect their Safety and
Happiness.”
Here is the doctrine of popular sovereignty: that ultimately
it is the people who are sovereign. It
is passing strange to think that the People, now free to govern themselves,
would voluntarily give up their right to privacy--with no earthly cause
demanding such a sacrifice of personal liberty when there was no moral or legal
compunction to do so!
All the normal rights and freedoms are theirs: these rights
do not disappear even when additional elaboration, interpretation, or restriction
become necessary. Stating that a person
does not have the right to yell “Fire!” in a crowded theater does not negate
the broad reach and purpose of “freedom of speech” for millions upon millions
of Americans: the fundamental right contained in the phrase remains intact.
Should we ask Americans to sacrifice their right to “life,
liberty, and the pursuit of happiness” merely because someone remarked on the
absence of the word “privacy” in the Constitution? Should we now agree to give up our rights and
liberties when every amendment of the Bill of Rights defends the right of
privacy in one form or another? Never!
It is madness to think that the authors of the Constitution took
such care to envision a world in which Americans would be free to exercise such
a broad and diverse range of personal rights… and yet overlooked the right of
Americans to lead a private life of quiet dignity and enjoyment according to
the dictates of their consciences.
How can anyone seriously believe that such an over-arching
right as privacy is not to be counted among our liberties--when plain reasoning
shows that the right of privacy is
essential to the free exercise and enjoyment of every other right granted!
THE FIFTH AMENDMENT’S PURPOSE
Returning to the Fifth Amendment: although it is quite
tempting to resume our analysis with how a person cannot “be compelled in any
criminal case to be a witness against himself”, there’s another fascinating
phrase that exerts an even stronger pull: namely, “private property”.
I suspect that if we don’t stamp out their heretical revolutionary
zeal immediately, there are some budding linguists and political scientists out
there itching to show there’s a connection between “privacy” and
“private”. Or are we to believe that
there is a right of “private property” without the right to think of one’s
property as “private”: i.e., property protected by the right of privacy?
Shall we stoop to such word game lunacy merely to keep alive
the fantasy illusions of right-wing ideologues by pretending the doctrine of
privacy cannot be extrapolated from the Constitution?
To return to our first example of slavery: this would be
akin to finding words such as “slave” and “enslaved” in the Constitution and yet
stubbornly arguing that slavery never existed because the word “slavery” is not
there!
If “enslaved” is the adjective, then “slavery” must be the
noun. If “private” is the adjective,
then “privacy” must be the noun! It is
exceedingly difficult to separate these two words—adjective and noun—given the
high degree of their interconnectedness through both linguistic form and
substantive meaning.
Can anyone imagine an “enslaved” person without having that
person bound in slavery? Can anyone imagine “private property” without
the owner having the right of privacy
in his property?
I suppose it can be done … but only by resorting to the
magician’s sleight of hand alluded to previously--and by adding to that
magician’s ruse the contortionist’s ability to bend and twist words and their
meaning into unimaginable pretzel-like shapes and unintelligible knots!
It is interesting to note all these phrases of the Fifth
Amendment that lend strong credence to the view that the Bill of Rights is
intended to protect the rights of Americans in many diverse ways--not the least
of which is the basic right of Americans to live their lives however they
choose, without any unnecessary and unwanted interference from government,
neighbor, or stranger.
That appears to rest very near the heart and essence of “the
right of privacy”, does it not?
AMENDMENTS SIX, SEVEN, AND EIGHT
I will be brief with the next three amendments as they pack
less of a wallop than the first five.
Their chief significance is adherence to the rule of law which is to
say, Americans have rights that cannot be arbitrarily dismissed or
limited. This rule of law, as a
cornerstone of American democracy, must necessarily respect the rights of
Americans to conduct their lives in private.
It is, after all, only the right of privacy that makes
perfect sense of all the liberties found in the Bill of Rights. If an American did not have the right of
privacy it would be pointless to assert: “The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated . . .”
The Bill of Rights, in securing these various rights, at the
same time is guaranteeing other rights
not named, including the right of privacy—and which, we shall see, is not a
fantasy of the author but a specific legal doctrine described by the Ninth
Amendment. First, an additional word is
in order here concerning the adoption of the Bill of Rights.
THE DEBATE OVER THE BILL OF RIGHTS
When the idea of a Bill of Rights was first proposed, it met
with some fair degree of criticism and opposition. One might think that the opposition came from
those delegates opposed to giving too many rights to their fellow countrymen. It is a strange but true fact that an
entirely different line of reasoning emerged; the major concern was that if
specific rights were given, what happened to other rights not included?
“A bill of rights was also seen by many as superfluous. The Constitution already restricted
governmental incursion on the people’s rights, some argued, by strictly
enumerating the government’s powers in the text of the Constitution. Individual rights were thereby implicitly
reserved. There was even a possibility
that enumerating some rights might mean implicitly ceding others.”
Another delegate to the Constitutional Convention, James
Jackson, “argued that Americans would become ‘objects of scorn’ in the eyes of
other nations. Amending the recently
adopted Constitution would make the United States look unstable and confused .
. . If Congress had no power to regulate free speech, he argued, no amendment
was necessary to protect that right.”
This thought, that rights not specified might be construed
as having no legal standing, was one of several factors that slowed down the
ratification process. The issue was
hotly contested before a consensus was reached in favor of adding a bill of
rights. It wasn’t merely fear of
granting “too many rights” that motivated the opposition so much as a concern
over the distinction between specified and unspecified liberties, as well as
certain niceties regarding the delineation of powers and restrictions between
state and governmental authority.
James Madison’s name is most closely associated with this contentious
debate for one simple reason: he first opposed the Bill of Rights before
becoming its leading champion. In
addition, he was intimately involved in the drafting of the actual
language. Whenever we wish to trace the
course of this controversy, we have the example of Madison’s leadership and
reasoning to understand the why and wherefore of his transformation during the
Bill of Rights debate.
Consider this hypothetical example: Americans move about the
country freely. Yet if this right of
movement was not specifically recognized, could a claim be made that the right
did not exist?
We shall return to this point when we reach the Ninth
Amendment; for now let us continue with our review of the Bill of Rights.
THE SIXTH AMENDMENT
“In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been committed;
which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in
his favor and to have the assistance of counsel for his defense.”
Like Amendment V, the Sixth Amendment deals with suspects who
have run afoul of the law. The language
is intended to guarantee a fair trial based on evidence and witness testimony,
a far cry from what passed for “justice” under the monarchy in Great Britain in
that nation’s history.
If suspects accused of crimes, whether minor or heinous, have
such specific rights even after being arrested, can we think of law-abiding
citizens as somehow having fewer rights in less portentous circumstances? The Bill of Right’s protection of the rights
of individuals facing judicial prosecution speaks to its expansive nobility of
purpose.
THE SEVENTH AMENDMENT
“In Suits at common
law, where the value in controversy shall exceed twenty dollars, the right of
trial by jury shall be preserved, and no fact tried by a jury shall be
otherwise re-examined in any Court of the United States, than according to the
rules of the common law.”
We shall pass by this amendment in relative silence; the
amount has been raised considerably in criminal proceedings ($75,000) but the
rest holds true. What is perhaps most
noteworthy is the right of a trial by jury and the declaration that Americans
may take advantage of such rights when circumstances so demand.
It is this very liberty of exercising one’s constitutional
rights that lends enormous credence to the recognition of the right of privacy—even
law enforcement and judicial protocols for the purpose of criminal proceedings
must be done carefully and lawfully. When
a defendant meets with his attorney, the session is private whether held in law office or prison.
(It should be noted that in two other areas—the
doctor-patient and priest-penitent relationship--society affixes the privilege
of privacy to all communication. Thus certain
privacy rights, both as precedent and historical
fact, exist socially whether or not they are specifically included in the
Constitution; Americans have many rights in which the element of privacy is an
essential part.)
The attorney-client relationship remains privileged and
cannot be abrogated or circumvented by trick or ruse. It suggests that the notion of “private” and
“privacy” was not unknown to the authors of the Constitution; indeed, they clearly
recognized the concept and practice as they drafted their Articles and most
especially the ten amendments guaranteeing individual liberty.
THE EIGHTH AMENDMENT
“Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.”
Like the Second Amendment’s right to bear arms, the usually
quiet Eighth Amendment has become more controversial of late, ever since
September 11, 2001. As the United States
sought the parties responsible for the attack on the Twin Towers in New York
City, moral and legal questions were raised concerning what actions are allowed
during wartime. Some rather thorny
philosophical theories concerning permitted practices have surfaced and remain
a hot topic.
After the U.S. used force to depose Iraq’s Sadam Hussein, a
question arose as to what standards of treatment should be set for enemy
combatants taken as prisoners of war. Photographs
from the prison at Abu Graib showed unusually harsh mistreatment of Muslim prisoners. The practice of water-boarding at Guantanamo
Bay and elsewhere raised grave questions concerning torture in place of humane
treatment of the many prisoners held there.
We have already noted how the words “privacy” and “slavery”
do not appear in the Constitution. We
are faced with yet a third term in like circumstance; the word “torture” does
not appear either but in its place we find a clear prohibition against
inflicting “cruel and unusual punishments”.
For Americans, their own physical form—the body--is recognized as
private and is not to be defiled, beaten, maimed, or tortured as a form of
punishment.
The difference between “torture” and “cruel and unusual
punishment” is exceedingly slim, if indeed any distinction can be made at
all. Nevertheless, one clumsy attempt was
made when the Bush administration argued that water-boarding was not
torture. (It appears the prisoners being
tortured—oops, I meant to say “water-boarded”—did not get to express an
opinion; it takes no great power of imagination to conjecture in which
direction their opinions would have leaned.)
Hypothetically, one might argue that torture is permissible
so long as it does not become “cruel and unusual punishment”…but that particularly
nasty word game quickly dissolves in the wet sands of its own insanity.
Like the examples of the fallacious reasoning found around
the terms “privacy” and “slavery”, any effort to suggest that the Constitution
does not prohibit “torture” fails miserably.
One can attempt to do so only by violating all the laws of logic and fabricating
incredibly convoluted rationalizations to suit some nefarious ulterior purpose.
Despite the absence of certain words like slavery, privacy,
and torture, a reasonable person can confidently assert: slavery existed;
private property is real; torture is prohibited; and the right of privacy can be
inferred from the actual wording of the ten amendments of the Bill of Rights.
If the first eight amendments paved the way for readers to
conclude that they have the right of privacy, with what greater enthusiasm
shall they rejoice when we examine Amendment IX?
THE NINTH AMENDMENT
“The enumeration of
the Constitution of certain rights shall not be construed to deny or disparage
others retained by the people.”
Now here’s a how-de-doo!
This wording brings us back to a previous point, that part of the
opposition to the Bill of Rights revolved around two simple questions: must the
framers list all rights that Americans were to have? And if they were to include some rights but
not others, how were Americans to be assured that rights not listed were as
fully guaranteed as those that were?
Madison, who first opposed the Bill of Rights before
transforming himself into its leading advocate, had to provide an answer; championing
its passage, he successfully guided it to victory. Amendment IX was an integral part of the
solution that made his change-of-heart advocacy possible.
Let us consider a few rights not listed and ask: do
Americans have the right to move about the country freely? Do they have the right of literacy, the right
to read and study and contemplate? Do
voters have the right to cast secret ballots?
Do couples have the right to engage in sexual relations in private even
if the Constitution does not state so explicitly?
The right to move about the country freely is an implied
right that surely exists under the Ninth Amendment. If the previous eight amendments
do not convince the most-hardened skeptic that the right of privacy exists,
what shall be said when he meets that broad range of rights protected by the
Ninth Amendment?
Fundamentally, if nothing
in the Constitution specifically prohibits American liberties, including the right of privacy, then it can and does exist!
The language of the Ninth Amendment is brilliant and reflects
admirably the genius of the men who drafted the Constitution. Only this interpretation makes sense of
natural law and natural rights, the underpinning of nearly all tenets of our
American democratic philosophy.
It is nothing short of comical to imagine ways in which
unintended social consequences would ensue if one were to extend such foolish
reasoning based upon the denial of the right of privacy:
Does anyone seriously believe that rich people, high-ranking
elected officials, and robe-wearing solemn judges would fail to object to
unwanted and random incursions upon their
privacy?
Do you think they would tolerate strangers crossing the threshold
of their homes because they have no right of privacy? As the wise man said: the answer is in the
question!
THE TENTH AMENDMENT
“The powers not
delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.”
Last but not least, the Tenth Amendment stands guard as a
faithful companion to its immediate predecessor, the Ninth; they can best be
understood when taken together as a pair.
The Bill of Rights here recognizes that certain rights belong
to the United States and still others are “prohibited by it to the States”—yet much
more significantly, the amendment reiterates that in the absence of any such specific constitutional language, all Americans
are free to enjoy the broadest range of rights imaginable, both enumerated and
implied.
The Ninth Amendment provided Madison’s answer to that thorny
issue of the extent of popular rights, including those liberties not mentioned
by name. In a single sentence, the
amendment makes it abundantly clear that other
rights do exist:
“The enumeration of
the Constitution of certain rights shall not be construed to deny or disparage
others retained by the people.”
While this article has focused on the Bill of Rights, an
examination of the rest of the Constitution will produce additional evidence for
our position that the Constitution recognizes implicitly and explicitly many
liberties derived from or associated with the right of privacy: liberties that
would have no true breadth or substance without the all-pervading protection
afforded by privacy alone!
CONCLUSION: DEAR MR. SCALIA
The movement toward “originalism” may have some justification
in certain judicial contexts. There are undoubtedly numerous linguistic
subtleties (and hair-splitting interpretations) that can be added to the field for
both law and philosophy. For my part, I
have tried to simplify the term as used here to refer to one particular tenet
of this conservative viewpoint: namely, the approach which asserts that judges
should adhere as closely as possible to the exact text of the Constitution to
avoid unwarranted interpretation and application.
In doing so, I have relied on the time-honored method of
setting up a straw dog argument or two, the better to knock them down. However, the phrases discussed here have
neither been invented nor embellished by the author—there has been an actual
assertion made “in real life” that the right of privacy does not exist. This assertion led to my suggestion that
since “slavery” is another term that does not appear in the Constitution (pre-1865)
then it could be reasonably assumed that slavery likewise lacked any basis in
reality.
While offered tongue-in-cheek, the parallel chosen was to
make a simple point: the absence of the word “slavery” does not mean slavery did not exist. In the same manner, the absence of the word “privacy”
does not prevent us from discovering how the right of privacy is thoroughly embedded
in the Bill of Rights.
My counter-argument is that if the doctrine of originalism is
to be taken seriously, its proponents should make more of a conscientious
effort to avoid such sleight-of-hand magic tricks. They make themselves look foolish by
defending the notion that the right of privacy is missing from the Constitution. They overlook the nature and purpose of the
Constitution taken in its entirety and most especially the Bill of Rights, the
document’s heart and soul.
I will return to this
topic in future endeavors and will try to be more respectful of their point of
view...if they can conclusively demonstrate to me that slavery never existed in
the United States of America merely because the word “slavery” does not appear in
the original Constitution!
Until that day,
POST SCRIPT
One might wonder why any of this matters or by what social
pressures did a Supreme Court Justice reach the dubious position of casting
doubt on the freedoms and privileges long associated with the right of privacy? The answer is two-fold: technology and
terrorism.
Some people would like to expand the powers of surveillance
through technology at the expense of the individual’s expectation of controlling
his or her own sense of privacy.
Businesses can benefit from tracking customers’ shopping habits; their tracking
technology can accelerate if protections for privacy are knocked down. Police and intelligence agencies seeking to
defend our country against acts of terrorism could move more swiftly if their
hands were “untied” by traditional American respect for our fundamental constitutional
values of individual liberties.
This is a separate aspect of the question so far discussed:
not whether the right of privacy exists (it does!) but to what extent Americans
are willing to see that right curtailed, if at all.
We save that discussion for another day--hopefully a day
that will dawn under the bright sun of American freedom.
Flynn, Elizabeth Gurley,
The Rebel Girl: An
Autobiography-- My First Life (1906-1926) (New York: International
Publishers, 1955), p. 110.
See “Before the American Revolution” on
www.rogeramericanwriter.com for a
comparison of rights held by the colonists
before and
after the American Revolution.
District of Columbia v. Heller (2008)
