The Constitution and the Right to Privacy
For a long, long time, we’ve heard people debate back and forth about whether or not there’s a “right to privacy” in the Constitution (and Bill of Rights).
For an excellent lesson on this issue, see a classic article from Harry Browne:
The ninth and tenth amendments were included to make absolutely sure there was no misunderstanding about the limited powers the Constitution grants to the federal government.
Amendment IX:
Amendment X: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Now, where’s the right to privacy? 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.
It is clearly in those two amendments.
The government has no power to tell people what to do except in areas specifically authorized in the Constitution.
That means it has no right to tell people whether or not they can engage in homosexual acts; no right to invade our privacy; no right to manage our health-care system; no right to tell us what a marriage is; no right to run our lives; no right to do anything that wasn’t specifically authorized in the Constitution.
It’s pretty straightforward. There is a right to privacy. Why? Because the government isn’t specifically given the power to violate your privacy.
That’s what the 10th Amendment is all about - government is strictly limited to doing those activities which are specifically authorized to it by the Constitution.
Everything else is left to “the States, respectively, or to the People.“
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The only point that I would add is that there exists a fundamental difference between the Federal Government, which these amendments limits, and the State Governments, which the 10th Amendment empowers. Actually, ‘empowers’ is not the right term because power not delegated is ‘reserved.’ That would entail that it (supposedly) never left the States in the first place!
This means that the States have the Power to engage in the topics that the author listed with no further restrictions. This means that every single State can handle gay marriage in a different way. This means that every single State can have restrictions on abortion and virtually every State’s statutory law can look different than every single other State.
It just means that the Federal Government cannot have any influence in these, and other topics, because, once again, Power is not delegated!
Good post, and good points. But don’t leave out the fundamental difference in those that the Constitution limits and those that the Constitution empowers.
I sort of agree and sort of do not. The federal government cannot do anything not defined in the constitution, a limit which has been violated to an extreme degree. However the states’ rights to limit personal freedom are not defined by the Federal constitution (and should not be). The ninth amendment, does, however, give a strong argument in favor of even the states not being able to limit personal freedom (although the real purpose of the ninth amendment was to encompass specifically those rights not mentioned in the bill of rights that had previously been rights of the colonists under Birtish law, plus it’s disputable whether the ninth amendment applies to the how the states can limit freedom, since it’s questionable whether the Federal constitution has jurisdiction of what the state’s can and can’t do do, other than where specifically mentioned. The Confederate constitution, for example, stated that if the national constitution and a state’s constitution were at odds, the state won). The line should be drawn at limiting freedom that has no real or direct effect on the public. Sodomy, prostitution (possibly), and assisted suicide for example, should not be illegal, while abortion, being murder, should be illegal (on the state level unitl a constitutional amendment bans it, although the ninth and fourteenth amendments could justify a standard federal statute against it), gay marrriage is a tough call. On one hand, it is a public not a private institution and additonally involve certains government benefits which could be construed to effect the entire public, such as the tax benefits that come with marriage. Based on this, one could argue that it is the duty of the people of the state, county, or city recognizing the marriage to decided whether or not they wish to recognize such an institution, since it’s a government by the people for the people. On the other hand, certain priveleges of marriage, such as next of kin rights, are strictly private, and the government has no bussiness banning them from gays, even if the constitution technically allows such a ban. Also, the federal government can, technically speaking, gain jurisdiction in one of these questions by means of a constitutional amendment, although, in the spirit of the constitution and the traditions left by the founding fathers, amendments restricting personal liberties should be extremely sparing (I do personally strongly support an amendment defining abortion as first degree murder, but most other amendments restricting personal liberty I oppose, such as flag burning, and I’m split on gay marriage).
[...] In response to “The Constitution and the Right to Privacy“ [...]
While I fully agree with the statements in the main article, I have to comment on a comment. Aborting a fetus that would not be viable outside of the mother seems a far sight from murder in my humble opinion. Sorry for the threadjack, back on topic, marriage, gay or otherwise, seems to tread a ground outside the Constitution. It seems too much of religion and government blending together. Marriage needs to be left out of the legal arena. If my religion allows for marriage to multiple partners how can the 10th override the 1st? When the threat to send in the army into Utah territory to end the multiple marriage of the LDS church that was braking the 1st in a major way. As to my previous point I don’t see how the 10th can override any other amendment, this is the only area that seems grey to me.