Last night, my wife and I watched an episode of “Law and Order” on TV. It’s not one of the programs that we regularly watch, but most of our regular programs are currently in between seasons so we try to find substitutes that look interesting.
In this episode, the legal team (the prosecution) had located and read the e-mails of a suspect, but weren’t sure the evidence obtained from those e-mails would be admissible in court – because reading them might be considered an invasion of privacy. The lead lawyer of the team brought up the fact, seemingly out of the blue, that he had opposed the Roe vs. Wade decision. My immediate thought was “Huh? What does his opinion on abortion have to do with this case?” But he answered my question by saying he believed the Supreme Court erred in affirming a person’s right to privacy. He maintained that (1) privacy cannot be found in the Constitution; and that (2) the fact that the Founding Fathers didn’t include some things in their enumeration of rights indicated that they didn’t believe we had those “rights”. After all, they must have had some reason for not mentioning them as protected rights.
Please excuse me if I sound rude in my response; but I see that argument as either profound ignorance of the Bill of Rights in the Constitution, or else a reliance on the profound ignorance of the Constitution on the part of those who are watching that program or otherwise hear that kind of argument. Both points in that kind of reasoning are absolutely false.
My first thought with regard to the assertion that privacy is nowhere to be found in the Constitution was that the term itself does not need to be present in order for the concept to be there. However, the words “private property” are in fact in Article 5 of the Bill of Rights: “nor shall private property be taken for public use, without just compensation.” Here it is expressly acknowledged that property may be privately owned; and by necessary implication that means not only that the government may not simply confiscate such property for public use, but that the owner may use his property for private purposes, and has a right to expect privacy with respect to his property. That’s why we have laws against trespassing, among other things.
But even if the word “private” had not appeared in Article 5 of the Bill or Rights – and even if I’m reading too much into that term as it appears there –the concept of privacy is clearly and emphatically stated in Article 4: “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.” The word “privacy” is just a one word description of what that Article clearly states. Anyone who says “privacy” as a concept is not to be found in the U.S. Constitution either does not know how to use his/her reason, or is a blatant liar using deception to further an agenda (like the “Patriot Act”, maybe?).
The words “right of self defense”, I’m pretty sure, are not to be found in the Bill of Rights. Does that mean that our Founding Fathers didn’t believe that self defense is a right within “the laws of nature and of nature’s God”? Certainly not! The concept of the right of self defense can be clearly seen in the second Amendment (Article 2 of the Bill of Rights): “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 right of a “free State” to defend itself against aggressive actions of other States is clear and plain. By necessary implication, the right of the individual to defend him/herself against aggressive actions by other individuals or groups is recognized. In fact, the right of the State to defend itself grows out of the right of individuals to defend themselves.
However, let’s say for the sake of argument that even the concepts of “right of privacy” and “right of self defense” were not to be found enumerated in the Bill of Rights of the Constitution. Perhaps I’m wrong in “clearly” seeing their presence in the fourth and second Amendments. Would argument number 2 as given on the TV show “Law and Order” then be accurate in saying that our Founding Fathers must not have recognized them as rights? Emphatically not!
The Founding Fathers themselves explicitly denied such an inference by giving us Amendments 9 and 10. Amendment 9 says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The ability to reason on the level of a Supreme Court Justice is not necessary to understand that statement. The fact that the Founding Fathers only included certain rights in their enumeration does not mean that they “obviously” didn’t acknowledge other rights. It only means that some of the “self evident” and “unalienable” rights to be found in the laws of nature’s God were listed because they were considered to be the ones most likely to be infringed by governments. And the purpose of the Constitution was to define and limit government (not to define and limit the rights of the people).
In keeping with this purpose, Amendment 10 says this: “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.” The Federal government has only those rights which are specifically delegated to it by the Constitution. If it’s not listed in the Constitution as a “right” or “power” of the Federal government, that “right” or “power” of Federal government does not exist! People like those portrayed on “Law and Order” would like us to believe that the Federal government has vast and extensive powers – virtually whatever they so desire – except what is specifically prohibited by the Constitution; whereas the rights of the people are so limited that only what is specifically “given” to them by the Constitution actually belongs to them. Obviously, the Founding Fathers did not agree, and wisely saw fit to explicitly state that fact. It is only our ignorance that allows us to be hoodwinked by the specious reasoning of would be tyrants.
What our Founding Fathers believed was that human rights are given by nature’s God, are extensive, and are self evident. They don’t need to be enumerated in a “Bill of Rights” to be valid. It is for this reason that the Declaration of Independence says: “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.” “Life, Liberty, and the pursuit of Happiness” are unalienable rights with which our Creator has endowed us; but they are only 3 among all of the rights and truths which are “self-evident”. And that is why Amendment 9 was placed in the Bill of Rights, unambiguously stating that while certain rights had been enumerated in it, it was by no means to be concluded that unalienable civil rights were restricted to those which were listed.
I believe that every human being naturally recognizes his/her right to do, say, or write things in secrecy and privacy; and he/she will be deeply indignant when anyone (including police and government officials) seeks to trample on his/her right to such privacy and secrecy. It is a “law of nature and of nature’s God” written within our being and consciousness, and is valid whether or not it can be found in an ancient document. We are not – or at least should not be – willing to give this up because police and government find it “inconvenient”. Let us recognize the kind of argument given to deprive us of our “right of privacy” –or other unalienable rights – for the malicious propaganda of would be tyrants that it is, and do everything within our power (morally and ethically) to oppose such tyranny.