Right to Privacy

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[Emsworth]

Absolutely not. There are several provisions that protect privacy in specific circumstances (e.g., the Third Amendment). However, there is no generic or general right to privacy (whatever that might mean).

[A18]

'Generic' in how broad a sense?

[John Dibble]

Absolutely not. There are several provisions that protect privacy in specific circumstances (e.g., the Third Amendment). However, there is no generic or general right to privacy (whatever that might mean).

[True Federalist (진정한 연방 주의자)]

Absolutely.  The Fourth Amendment makes it clear that it exists in certain situations and te Ninth makes it clear that it like all rights are general and nature.  In terms of Roe v. Wade and related cases, the question that pertains is whether the act of abortion is a private act.   There is no Constitutional basis for deciding that question directly, tho the court could make reasonable inferments about how Congress and/or the States have decided that question via how other legislation considered the legal status of fetuses.  If the fetus has a legal status apart from the mother, I can't see how one can regard abortion as a private act.

[Emsworth]

The Fourth Amendment makes it clear that it exists in certain situations...

If the Constitution makes it clear that a right exists in certain situations, then it does not follow that the same right exists in all situations. In fact, the very opposite might be implied.

In order to reach decisions such as Griswold, the courts have had to construct absurd chains of implications. The Fourth Amendment protects one from unreasonable searches and seizures, so the Constitution must protect the right to privacy. The Constitution protects the right to privacy, so every couple is entitled to reproductive autonomy. A couple is entitled to reproductive autonomy, so it must be allowed to use contraceptives. It must be allowed to use contraceptives, so it has a constitutional right to buy contraceptives. And thus, the Court finds the right to purchase contraceptives in the "penumbra" of the Fourth Amendment, even though there is clearly no connection between buying contraceptives and freedom from unreasonable searches and seizures.

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The Ninth Amendment is a federalism provision. It provides that, just because the Constitution lists certain exceptions to federal power, it does not follow that Congress possesses all powers not specifically excluded. Like the Tenth Amendment, it chains the federal government to powers specifically enumerated--and like the Tenth Amendment, it is incapable of being incorporated.

[True Federalist (진정한 연방 주의자)]

The Fourth Amendment makes it clear that it exists in certain situations...

If the Constitution makes it clear that a right exists in certain situations, then it does not follow that the same right exists in all situations. In fact, the very opposite might be implied.

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The Ninth Amendment is a federalism provision. It provides that, just because the Constitution lists certain exceptions to federal power, it does not follow that Congress possesses all powers not specifically excluded. Like the Tenth Amendment, it chains the federal government to powers specifically enumerated--and like the Tenth Amendment, it is incapable of being incorporated.

The Ninth is a general rights provision.  "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  It clearly is intended to avoid the construction you make that because some rights are listed, those that aren't listed might not exist.  Griswold is a totally reasonable decision because it is clear that sex between two consenting adults is a private act.

The legal status of fetuses is not directly addressed by the Constitution. It might be possible to resurrect the ghost of the Dred Scott decision, since while they clearly are not citizens of the United States, they might be a citizen of a State.  The way the Fourteenth is worded it is still possible for a person to be a citizen of a State without being a citizen of the United States as it only excludes the reverse.

They also might have status as a person under the Fourteenth.  After all, if activist judges were able to find that corporations were persons under the Fourteenth, it surely isn't a stretch to find that fetuses are.  However, let's leave aside judicial activism as much as possible.

However, in both cases, I don't see where it is up to the Supreme Court to determine the status of a fetus.  It can use the status as determined elsewhere (either the States or the Congress) to decide whether privacy rights pertain here, but making up an absolute right to abortion (or an absolute prohibition of abortion) based on just the Constitution is bunk.

[A18]

The Ninth Amendment was passed to alleviate fears that by listing certain exceptions to federal power, many of which have only the most remote connection to the enumerated powers, you would make the enumerated powers seem far more expansive than they were ever understood to be.

That's it; it's a rule of construction preserving the right of local self-government. And this was recognized in Supreme Court case law up until the 1930s.

[Emsworth]

The Ninth is a general rights provision.  "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  It clearly is intended to avoid the construction you make that because some rights are listed, those that aren't listed might not exist.

I am not denying that the Constitution protects rights beyond those listed. I am merely claiming that such protections relate solely to the federal government, and do not apply to the states.

The Ninth Amendment declares that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. What exactly are these "other" rights? The amendment does not say. It is necessary, therefore, to discern what the society that adopted the Ninth Amendment understood the word "right" to mean. Once the original meaning of this term is comprehended, it becomes abundantly clear that the Ninth Amendment is a provision related to federalism.

It is important to remember that, to the framing generation, rights and powers were like two sides of the same coin. James Wilson, for example, said that "A bill of rights annexed to a constitution is an enumeration of the powers reserved." If the Constitution does not delegate a power to the government, then the people have a corresponding right against the exercise of that power. Similarly, if the Constitution does delegate a power to the government, then the people do not have any such corresponding right. Taking the original understanding of the word "right" into account, the Ninth Amendment can be taken to mean as follows: the enumeration of certain limitations on federal power shall not be taken to imply that federal power is otherwise unlimited.

For example, the Constitution does not grant the federal government the power to regulate abortion in the states. However, it does not specifically prohibit the federal government from regulating abortion either. Can someone argue that, because the Constitution fails to specifically mention a prohibition on federal abortion, the federal government has the power to regulate it? No, the Ninth Amendment prohibits such a line of reasoning. The people of the several states have a Ninth Amendment "right" to be free from federal abortion regulation, and the failure to enumerate that right does not imply an expansion of federal power. This "right" to abortion does not stem from any theory of natural rights, natural justice, or the like. It merely stems from the fact that the power to regulate abortion is not enumerated. 

Although it is not necessary to investigate the history of the Ninth Amendment, doing so will (I believe) confirm the interpretation that A18 and I have advanced in this thread. The Ninth Amendment was an answer to federalist objections about the Bill of Rights. At the Pennsylvania ratifying convention, for example, James Wilson expressed these fears as follows:

"A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration [of reserved powers], every thing that is not enumerated is presumed to be given."

Wilson argued that, if the Constitution enumerated only some limitations on federal power, it might be assumed that federal power was unlimited in all other areas. Thus, he said, it would be safer to simply enumerate the powers of government, rather than enumerating exceptions to those powers.

Several state ratifying conventions were concerned about the same problem. For example, the New York ratifying convention made the following declaration:

"[T]hose Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater caution."

James Madison introduced the Ninth Amendment to address these concerns. He said, when proposing it to the House of Representatives:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure."

Clearly, Madison equates "rights" and "exceptions to the grant of power." He was concerned that if the Constitution listed only some exceptions to federal power, some might assume that all powers not specifically excluded were meant to be granted to the "General Government." Hence, the history and purpose of the Ninth Amendment fit very neatly with the explanation suggested above.

If the Ninth Amendment is indeed a provision related to the extent of enumerated powers, then, clearly, it cannot be incorporated. Applying the Ninth Amendment to the states would make just about as much sense as incorporating the Tenth. The Framers of the Fourteenth Amendment, of course, recognized this fact. Consider, for instance, one speech by John Bingham (the author of the privileges or immunities clause):

"Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights. Those amendments secured the citizens against any deprivation of any essential rights of person by any act of Congress ...

"Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows…

"These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' are an express prohibition upon every State of the Union."

[opebo]

Yes, obviously, though I can understand why it frustrates the fascists.

[MasterJedi]

Absolutely not. There are several provisions that protect privacy in specific circumstances (e.g., the Third Amendment). However, there is no generic or general right to privacy (whatever that might mean).

[True Federalist (진정한 연방 주의자)]

While we clearly disagree on how to get there, we do agree on the end result, namely that there is no right to abortion (or a prohibition thereof) to be found in the Constitution.  It's clearly a matter to be legislated and unless a compelling reason can be shown for Congress to do it, the Tenth Amendment leaves it up to the States to decide for themselves.

[Emsworth]

While we clearly disagree on how to get there, we do agree on the end result, namely that there is no right to abortion (or a prohibition thereof) to be found in the Constitution.

Yes, but I would say the same about sex, contraception, "privacy," and so forth.

[Frodo]

While we clearly disagree on how to get there, we do agree on the end result, namely that there is no right to abortion (or a prohibition thereof) to be found in the Constitution.  It's clearly a matter to be legislated and unless a compelling reason can be shown for Congress to do it, the Tenth Amendment leaves it up to the States to decide for themselves.

^^^^^^^^^^

I couldn't agree more. 

[Kaine for Senate '18]

Yes.  The Right to Privacy is one of the Rights no explicity named in the 9th Amendment.  I don't put abortion under that umbrella, but such a right does exist.

[Earth]

Absolutely not. There are several provisions that protect privacy in specific circumstances (e.g., the Third Amendment). However, there is no generic or general right to privacy (whatever that might mean).

[Vepres]

Yes.  The Right to Privacy is one of the Rights no explicity named in the 9th Amendment.  I don't put abortion under that umbrella, but such a right does exist.

[RIP Robert H Bork]

Might as well quote this myself.

Absolutely not. There are several provisions that protect privacy in specific circumstances (e.g., the Third Amendment). However, there is no generic or general right to privacy (whatever that might mean).

[Senator Robert A. Taft]

Yes.  The Right to Privacy is one of the Rights no explicity named in the 9th Amendment.  I don't put abortion under that umbrella, but such a right does exist.

[Earth]

Yes.  The Right to Privacy is one of the Rights no explicity named in the 9th Amendment.  I don't put abortion under that umbrella, but such a right does exist.

For it to be a substantial "right" in any sense, there would have to be some actual explicit statement to that fact, not simply placed under the entirely vague heading of the 9th amendment.

In a wiki paragraph referencing Robert Bork, this came up, and I think it's most spot on concerning the 9th amendment:

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[12th Doctor]

Let's see.  Right to privacy.  Right to privacy.  Right to Privacy.

Nope, don't see it anywhere in this Constitution.

[J. J.]

I would say that there is no absolute right to privacy.  I don't have a right to assembly nuclear weapons in my living room.

[True Federalist (진정한 연방 주의자)]

Let's see.  Right to privacy.  Right to privacy.  Right to Privacy.

Nope, don't see it anywhere in this Constitution.

Try the Fourth and Ninth Amendments.  While the exact phrase is never used, the Fourth quite clearly establishes an intent that an intrusion by the government into privacy in the context of searches and seizures of persons, houses, papers, and effects is subject to a reasonableness standard.  Certainly the broader right to privacy exists, subject to being intruded upon by the government in reasonable ways.  Where the right to privacy case law goes awry is in those cases where the judicial branch has reserved to itself alone the authority to determine what is "reasonable" or "unreasonable".

[Earth]

Where the right to privacy case law goes awry is in those cases where the judicial branch has reserved to itself alone the authority to determine what is "reasonable" or "unreasonable".

This is where the caveat comes in. unreasonable search and seizure is up to the courts, but  it's no guaranteed protection against intrusive behavior, particularly surveillance or confidential information. Unless it's enumerated, it doesn't exist, for all intents and purposes. 

[Mint]

Yes.  The Right to Privacy is one of the Rights no explicity named in the 9th Amendment.  I don't put abortion under that umbrella, but such a right does exist.