Wednesday, December 16, 2009

Yeah, yeah, "Bill Of Rights Day" was yesterday...

Yesterday, lots of people got all weepy-eyed for Bill of Rights Day, the same way they would about a dead pet, (and for much the same reason.)

Me, I'm getting surly or something. I'm starting to think the Bill of Rights was a big, big mistake.

The next time I hear some conservative say "You don't have a right to privacy! Show me where the Constitution grants you the right to privacy!", I'm liable to punch the S.O.B. right in the snot locker. The Ninth Amendment is not just a closed book to these people, it's a closed book in a language they can't read on a shelf they can't reach.

The New Paltz Journal says it better, and with 89% less snot-locker-punching:
In short, conservatives who want to eschew a real analysis of rights as natural elements of natural law, will continue to attempt to force Americans to believe what for Americans is unbelievable, that there is no such thing as a right to privacy, when the law written in their hearts tells them that there most certainly is. So, for instance, having the shrill Ann Coulter blasting out from her sound truck that the right to privacy is non-existent is a contradiction of the American moral character itself. It would be far more true to the text of the Constitution to render an effective analysis of what rights are generally (claims that are just) and what the right to privacy is specifically (a just claim to a zone of personal being and action that first and foremost excludes the state). From there it would be far easier to say what the zone of privacy cannot include — such actions as killing one’s children, whether they are born or unborn, for instance.

43 comments:

BryanP said...

But it's for the children.

Jay G said...

There's a reason I hate the Republicans *and* the Democrats...

og said...

Stay surly.

OA said...

A government is only effective in the suppression of the people when said people fear the government and its laws. When a majority of the people ignore the government's efforts to remove the rights of the people, said government can no longer rule effectively. Either they dissolve or simply don't bother to enforce things (Italy, for instance).

In my world it's Bill of Rights Day every damned day.

Ed Rasimus said...

Not only the Ninth is operative with regard to privacy. How about the First where it allows us to assemble with whomever we choose, to speak our minds and to commune with whatever gods we prefer. How about the Fourth which preserves our PRIVACY in our homes, persons and property. Maybe the Fifth in which our interactions with spouse, minister, physician and attorney are protected from government intrusion. Or the Fourteenth which spreads those guarantees equally among all the states to all the citizens.

Privacy isn't a hard right to defend. Healthcare, on the other hand...

Weer'd Beard said...

"and with 89% less snot-locker-punching:"

heh do you coin these catchy euphemisms, or do you simply collect and distribute them?

That's funny right there!

Anonymous said...

Funny how made-up rights, such as the holy right right to privacy, only includes things that liberals want to do. However, the right to privacy does not include my guns, or my income.

Funny that. The fraud reaches almost scientific levels in "constitutional law".

theirritablearchitect said...

Oh, HELL YEAH!!!

Surly

This is more like it!

Punch S.O.B. in snot locker (check!)

The 9A is in a closed book in a language they can't read on a shelf they can't reach...I'm SO stealing that one.

Tam said...

"However, the right to privacy does not include my guns, or my income."

That is the rankest damned BS.

pax said...

Preach that.

Tam said...

ETA:

"Funny how made-up rights, such as the holy right right to privacy,"

This is exactly the kind of nonsense to which I refer.

[sing-song smug tone]"It's not in the Bill of Rights! It must be made up!"[/sing-song smug tone]

If you really believe this, then stay off my side. You're no more a fan of liberty than the "liberals" you claim to disdain.

The Raving Prophet said...

I used to be of the "hey, there's no right to privacy" written there, then I saw the light and amended my position to the one you have quoted. It isn't that there is no right to privacy (the Constitution and Bill of Rights weren't granting rights to the people nor were they listing every right retained by the people).

I agree that often it's amusing how the right to privacy seems only to include those things the political left adores, as it should encompass far more than that. You can see echoes of this right to privacy in various portions of the Bill of Rights- the freedom of religion, freedom from unreasonable search, etc. The idea was in the back of the minds of the framers and you can see it pop up here and there in the document.

alath said...

I read Anonymous as criticizing a *selective* right to privacy - one that only applies to lefty-approved choices.

Of course, the righties are often just as bad; being vehement believers in civil liberties but only inasmuch as the exercise thereof is consistent with right-leaning ideology.

There are very few individuals, and certainly no mass political movements, that vehemently support the exercise of liberties they *don't* like.

@OA, I'm not sure fear of the government is our biggest problem. Often it seems to me just the reverse; that Americans are far too ready to trust the government.

Matt G said...

It's true that it's not enumerated by the Constitution.

But our forefathers addressed that issue with handy little piece of writing called the Ninth Amendment:

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

If we skipped the Ninth Amendment, and just made a list of alllll the rights that you should have, the US Constitution would be pretty long. It also would turn out to be actually more restrictive, as we would find ourselves in a situation of "that which is not explicitly allowed, is forbidden!"

Just because one doesn't like where the decisions citing Griswold vs Connecticut went doesn't mean that the court was wrong to recognize the simple fact that there are rights beyond those listed in the Constitution. Hell, it says so, right in the Constitution.

You've read the thing, right, Anonymous?

Yes, by Gawd, we should have NO problem affirming the enumerated rights, and it's disgusting when we don't. But that doesn't invalidate the fact that the Right To Privacy is valid.

Ken said...

I read Anon's comment the same way alath did, for what it's worth. It was provocatively phrased, so it took a minute, but I read it as an indictment of the selective detection of a privacy right by "progressives."

Griswold was the right call, horribly made.

Robert McDonald, the Sarcastic Bastard said...

I often find myself looking both left and right and being filled with bile and disgust. This post is a gem, Tam. Give'em hell.

SympDogge said...

Rights are property, just as real as "real estate". Just because a "right" is not codified in the Bill of Rights does not mean that said "right" does not exist. The 5th Virginia Convention in 1776 freely acknowledged that the 16 articles in their "Va Declaration of Rights" did not codify all rights, only those that were deemed by the Convention to be acknowledged as essential to the forming of their new government. Among those men were George Mason and Patrick Henry, two men who wrote extensively about rights, and whom are seldom read (because that putz Jefferson outlived them)

Anonymous said...

1. The right to privacy was created from whole cloth by the law clerks of Goldberg and Douglas to rationalize what the bosses wanted to do.

Constitutional rights are dervied from structure, text and doctrine and in the case of what liberals want "pulled out of the air".

2. The "right to privacy" is the polestar of liberal constitutional doctrine of "I want it therefore it is constitutional".

3. Yes, I've read the whole Constitution and have even been tested on it several times. Yes, the Ninth Amendment was written as the "savings clause" by Madison as the rights of free men "are more numerous than grains of sand upon the beach." However, the right to privacy is not among them as it is a complete invention.

You don't have to take a particular side to call a fiction a fiction. There was no right to privacy until a liberal Supreme Court majority wanted to do something.

No greater support of my statement that it is fictional is the way that the vaunted "right to privacy" is applied. You'll note that it is only applied to things liberals want to do and not to things like, oh, I don't know, carry license databases.

Shootin' Buddy

Tam said...

See, and there's the problem.

Because this silly "Bill of Rights" thing did not specifically state "You have the right to go about your life without other people getting all up in your business," we wind up, barely two centuries later, with people telling me that I do not, in fact, have the right to go about my life without other people getting all up in my business. The document has failed.

Just because a right is unevenly applied, it does not automatically follow that the right does not therefore exist.

Joel said...

However, the right to privacy is not among them as it is a complete invention.

It would be enlightening to have you back that up with something besides a bald assertion. Roe v. Wade might be bad law for any number of reasons, but that hardly means there's no implicit right to privacy. The government really isn't supposed to be able to stick its nose in my business for any reason or no reason just 'cause the BoR doesn't say it can't.

And that's coming from a guy who's never had an abortion - hell, I've never even been pregnant.

Anonymous said...

Ah, yes, the rights manufacturing industry whereby desires become wants become needs become rights. One does not have a right to "do whatever they want", not even in Texas. One is subject to the rule of law, not the rule of flights of fancy.

Liberals and libertarians all want something for nothing and in the process constitutionalize desires. Certain issues may be good policy, e.g. abortion, making the beloved sacrament of Libertarians, pot, legal, but they are not Constitutional matters.

"Roe v. Wade might be bad law for any number of reasons"

Yes, primarily because it is devoid of law. It is merely liberals constitutionalizing their desires from the bench. Made up from whole cloth, the opinion reads like a statute.

Anywho, Griswold, where Justice Goldberg and Doughlas' law clerks made up the right to privacy, is the case you wanted to cite.

Shootin' Buddy

Anonymous said...

"Just because a right is unevenly applied, it does not automatically follow that the right does not therefore exist."

Where is the concern from the Supreme Court regarding privacy for anything that a liberal would not want to do?

Privacy was invented as a stalking horse to advance the liberal agenda.

Shootin' Buddy

Joel said...

Well, I don't know anything about the "liberal agenda;" I seem to have been taken off their distribution list. But if any government doesn't want to honor "if I'm not chewing on your sleeve, leave me the hell alone" I don't want to let it play. That goes for Republicans as well as Democrats.

Anonymous said...

This post is awfully wookie-suiterish. :)

Tam said...

"Where is the concern from the Supreme Court regarding privacy for anything that a liberal would not want to do?"

What does that have to do with the price of Pekoe in Peking?

Are we talking about the Supreme Court as in Supreme "Dred Scott" Court? As in Supreme "Kelo" Court? Those cretins wouldn't know a right if they choked on one.

theirritablearchitect said...

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures..."

Reads pretty close, to me at least, that the Gummint is pretty much to keep out of my fucking business, i.e., my private affairs.

It also seems to me that the Gummint has been almost continually violating the Fourth since, what, about 1791?

Anonymous said...

"Those cretins wouldn't know a right if they choked on one."

Well, those "cretins" on the Supreme Court invented the right to privacy from thin air so I think the maker would know its work.

Outside of what liberals want to do, where has the Supreme Court found a right to privacy?

Shootin' Buddy

Tam said...

"Outside of what liberals want to do, where has the Supreme Court found a right to privacy?"

Vice the current CCW database flap, I believe that's the wrong tack to take, no?

Dave R. said...

I'm a huge fan of the 9th and 10th amendments, but to give the right-wingers their due, when the only context they hear "right to privacy" in is that of a fed-gov enforced right to abortions, discovered 170 years after ratification, they're right to think they're being conned. Especially when said right to privacy isn't found in a straightforward reading of the 9th, but in the enamation of a penumbra of other rights.

If civil libertarians can ever make a serious and credible bid to apply the 9th to other issues I think they'll find the right to privacy a much easier sell. Working without excessive credentialing and pursuing medical treatment of your choosing without prohibition by the FDA.

Rick said...

The problem is not that anyone automatically assumes that only enumerated rights count.

It is that, unless there is a speedbump SOMEWHERE that requires people to stop and decide if this unenumerated action is a protected roigt or not, then we have effectively abandoned the idea of rights at all.

If ANYTHING can be a right (since it isn;t explicitly forbidden), then NOTHING is a right.

The system breaks down.

I have no problem with SCOTUS or Congress decalring that certain unenumerated activities are protected rights.

But I would like them to be somewhat consistant in application. Such as the "right to privacy", wheich in effect means only "the right to sexual freedom without restriction."

I call BS on that "right". If you want to claim an unenumerated right to sexual freedom, fine. But don't call it "privacy" and expect anything but contempt.

Tam said...

"I'm a huge fan of the 9th and 10th amendments, but to give the right-wingers their due, when the only context they hear "right to privacy" in is that of a fed-gov enforced right to abortions, discovered 170 years after ratification, they're right to think they're being conned."

"But I would like them to be somewhat consistant in application. Such as the "right to privacy", wheich in effect means only "the right to sexual freedom without restriction."

I call BS on that "right". If you want to claim an unenumerated right to sexual freedom, fine. But don't call it "privacy" and expect anything but contempt.
"

The correct response then is not to say "I don't have any right to privacy because UR DOIN IT RONG," but rather to take that right of privacy and correctly apply it, relentlessly and implacably, where it belongs, viz. the Bloomington CCW permit database.

To do otherwise smacks heavily of the "...then I'll take my ball and go home" school of jurisprudence.

TJP said...

I think a lot of people are confused by the fact that a truncated list of individual rights appears in a document that otherwise deals only with what government is allowed to do. Same result, but different context.

And hey, I'm looking in Article III--where do I find that part where the Supreme Court can override state legislatures' infanticide laws? As much as I hate abortion, I'd be as unhappy with a federal decision against it as I am with their decision for it.

Anyway, it's against the law to yell "Free Speech!" in a crowded firehouse....or something.

alath said...

My take:

Government ONLY has the authority to do what is enumerated in the Constitution.

I have the right to be free from the government doing anything else not so enumerated.

So, that's my definition of 'privacy' as regards government action: it's the all-encompassing everything the government isn't allowed to do, which includes everything except what is specifically authorized.

Tam said...

alath,

To that end, a "Bill of Allowances" probably would have better preserved freedom than a "Bill of Rights". Then we'd be arguing over "Is the .gov allowed to do thus-and-such?" instead of the incorrectly phrased "Does the Constitution give me the right to do so-and-so?"

The very idea of "That which is not specifically allowed is forbidden" should be repugnant to any right-thinking American.

Ken said...

To any human who understands natural rights.

Anonymous said...

Does the 2nd amendment describe a natural right?

theirritablearchitect said...

"Does the 2nd amendment describe a natural right?"

Easy answer; are you a moron?

wv: no shit here...extort

Mark said...

"The very idea of "That which is not specifically allowed is forbidden" should be repugnant to any right-thinking American."

Despite our arguments, there are times when you make me want to hug the monitor.

Matt G said...

Rick makes the best argument against penumbral rights that I've seen here:
"The problem is not that anyone automatically assumes that only enumerated rights count.

It is that, unless there is a speedbump SOMEWHERE that requires people to stop and decide if this unenumerated action is a protected roigt or not, then we have effectively abandoned the idea of rights at all.

If ANYTHING can be a right (since it isn;t explicitly forbidden), then NOTHING is a right.

The system breaks down."


That's admittedly a problem. Do we have to wait until the SCOTUS recognizes them?

"I gotta right to do X, Y, or Z!!!" Man, have I heard that a lot. Even when it wasn't so.

Shootin' Buddy, I have to admit that, the first time I briefed Griswold in PSCI Con Law: Rights And Privelidges, I actually felt exactly the way you do. 10 years later, I took PCSI Con Law: Powers Of Government, and had begun to switch.

Thus I withdraw my sarcastic rhetorical question.

But I'll say, it appears that you're getting awefully hung up on whether this position is Liberal, or not. That label thing is a trap, you know.

Blackwing1 said...

I think it was Randy Barnett who coined the phrase about the Constitution granting, "...islands of Federal power in an ocean of liberty". And has noted that the U.S. has now become exactly the opposite, with "islands of liberty in an ocean of Federal power".

There can be no such critter as "positive rights", since to require the output of other human beings is (one way or another) to enslave them.

Rights, whether clearly enumerated in a list (such as the BOR) or unenumerated (a literally infinite number of rights, as long as I don't infringe on the rights of others through the initiation or threat thereof of force or fraud) are retained by all individuals, everywhere, at all times.

The only question is how much a government will infringe on those rights, and how much of THAT a people will put up with before they dispose of that government.

Tam said...

Anon,

"Does the 2nd amendment describe a natural right?"

Can you make a fist?

Rick said...

My take is that is it is not an enumerated power of the government (federal, state, or local), then they absoluetly lack the authority.

If it is not an enumerated right, then it MAY not be a right. We'll have to enumerate it somewhere the populace can agree is authoritative to RECOGNIZE it legally.

I would prefer that it be enumerated in the Constitution, via Amendment, if it is an absolutely critical right. Given how deliberately difficult we made that process, it somewhat ensures that weakly supported things won;t get by, and what is likely to pass will be widely and enduringly supported. As evidence, I point to Prohibition -- the ONLY Amendment that was later overturned by the people.

Failing that, I would prefer CONGRESS to enumerate it (note that federal laws passed under the Constitution are ALSO considered "the supreme law of the land" -- many forget that). Congress may be full of liars, thieves, and idiots -- but they are reversible every two years or so.

My LEAST PREFERRED mode of enumeration is to have the Supreme Court decide what unenumerated rights are real and enforceable. Becuase once the Council of Nine Wizards has passed judgement with Judicial Infallibility, we're stuck with it, unless we can muster the horsepower to overturn them via amendment. (See my statement on amendments, above.)

theirritablearchitect said...

"...Given how deliberately difficult we made that process, it somewhat ensures that weakly supported things won;t get by, and what is likely to pass will be widely and enduringly supported..."

And guess what, no matter how hard or how much of a super majority takes hold of the issue, it still is probably going to be the wrong thing in the end. Pushing the issue to be, insisting in its righteousness merely because of its "popularity" does not at all make it ethically correct. That is merely mob rule, and most people are just A-OK with that shit these days.

It makes me sick.