Who Creates Privacy Rights?
Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES
Sen. Rick Santorum, Pennsylvania Republican, and the pending challenge in the United States Supreme Court to homosexual sodomy laws in Lawrence vs. Texas have thrust a right of privacy onto center stage. What is chronically obscured is whether the dimensions of a right or privacy should be drawn by the United States Supreme Court through avant-garde constitutional interpretations or by legislatures spurred by a politically awakened citizenry. Who decides on rights is every bit as important as what is decided in making our Constitution live and flourish for the ages.
Americans cherish privacy, the right to be left alone absent a compelling reason for intermeddling. But our celebration of privacy should not dishonor the pivotal distinction between legislative and constitutional protections. To blur the two is to risk creating Platonic Guardians disguised as Supreme Court justices that would enervate self-government and citizen activism. Democracy's pulse would slow.
The Constitution protects treasured privacy interests, but creates no general right of privacy. The First Amendment shields beliefs and associations from government snooping or impairment. The home, possessions, the person and reasonable expectations of privacy generally cannot be disturbed without reasonable cause under the Fourth Amendment. The right to silence is safeguarded by the Fifth Amendment. And religious test oaths as a condition of public office are condemned by Article VI of the Constitution. But a right of privacy finds no expression in the constitutional text.
The Ninth Amendment advises that the enumeration of rights against the federal government should not be construed to create power where none was conferred by the Constitution. In other words, the federal government is a government of limited powers and cannot legislate at all unless supported by an affirmative grant in Article I or an amendment, such as the Article XVI Income Tax amendment. Accordingly, Congress enjoys no general authority to regulate marriage, private consensual sexual acts, or abortion.
States, in contrast to the federal government, are governments of general power. They may legislate unless prohibited by the Constitution. The 14th Amendment, for example, prohibits states from depriving any person of life, liberty or property without due process of law, or denying any person the equal protection of the laws. Article I, section 10 invalidates bills of attainder, ex post facto laws, or laws impairing the obligation of contracts enacted by states. But the prohibitory language of the Constitution does not erect a general right of privacy against state action.
Our political and legal culture, however, strains to find constitutional rights against laws thought obnoxious or bumptious. Repealing an unenlightened law is characteristically more arduous and less Mercury footed than a court edict. Persuasive arguments must be marshaled. …