Scary Constitutional Arguments, \"Law & Order\" Style

I know getting your constitutional theory from Law & Order is like getting your medical advice from Scrubs, but, for what it's worth, here's how the Constitution looks to everyone's favorite DA, Jack McCoy:

The fact that the Constitution explicitly protects some rights and not others necessarily suggests that the framers did not intend to protect those rights they chose to omit. They chose to omit privacy; therefore it must be a legal fiction.

What scares me is how few people would find this uncomfortable.

Mr. McCoy, meet Mr. Ninth Amendment.

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What gets me is not that

What gets me is not that privacy isn't a great idea, it's that the phrase "right to privacy" is so very, very stupid.

The word "privacy," as it is used here, is essentially expressing the idea that the government ought not to be allowed to interfere with our lives in some particular manner.

The thing is, this is what a "right" is, too. It's an area of civic life where the government has no power and cannot go.

So, the phrase "right to privacy" is redundant, and therefore meaningless. It might as well be called "the right to have rights."

(By the way, if you really want to get under certain people's skin, start throwing around the phrase "economic privacy." It takes all of the the riteous indignation over sexual privacy and extends it to money and economic matters. The reaction you get can be priceless.)

Yeah, I'm not a big fan of

Yeah, I'm not a big fan of the phrase "right to privacy" in general, either; but the bigger point was the idea that any right to X had to be explicit, else it did not exist.

Plus, I hear it's in some

Plus, I hear it's in some penumbra somewhere.

Well, "right to a job" isn't

Well, "right to a job" isn't listed either. Neither is "right to social assistance", that hasn't stopped anyone.

Well that is precisely the

Well that is precisely the position of legal positivists like Bork, so it's a little late to be shocked. I suppose the fact that this view has bubbled up to pop culture is mildly worrying, though...

Certainly not shocked, Matt;

Certainly not shocked, Matt; just saddened. Plus, I figure Bork and McCoy come from different sides of the aisle - which makes it even sadder.

Picking up on George's

Picking up on George's point, it can be useful to reveal to someone that infringing upon international "economic privacy" in order to nab those multinationals and wealthy individuals also interferes with peaceful Muslim citizens sending money back overseas to their families and communities.
The same weapon that is used to persecute offshore tax havens is used to track terrorists in the much maligned Bush administration's War on Terror.

For a while now, I felt the

For a while now, I felt the presence of the Bill of Rightsinverted the nature of the Constitution. Apparently someone else agrees.

It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the Barons, sword in hand, from king John….It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. "We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power.

(Alexander Hamilton, Federalist, no. 84, 575-581, 28 May 1788)

Fred Thompson is far better

Fred Thompson is far better a guide for constitutional advice...especially the scene when he explained to the rest of the crew that the "right to abortion" appears no where in the constitution.

Where is my "Right to eat an

Where is my "Right to eat an Apple"?

The word “privacy,” as

The word “privacy,” as it is used here, is essentially expressing the idea that the government ought not to be allowed to interfere with our lives in some particular manner.

The thing is, this is what a “right” is, too. It’s an area of civic life where the government has no power and cannot go.

So, the phrase “right to privacy” is redundant, and therefore meaningless.

A right is a legally-enforceable claim. It contains claims that stop government interference, but it also contains claims that enjoin government interference - i.e. to catch criminals, enforce contracts, and compel repayment for torts. The "right to privacy" is a bundle of claims that prevent the government from acting towards individuals in a certain way, but that is far from the only kind of right.

- Josh

Oops, not "enjoin". I saw

Oops, not "enjoin". I saw that as soon as I hit post. That clause should read, "...but it also contains claims that invite government interference..."

- Josh

Those are powers, Josh, not

Those are powers, Josh, not rights. The idea being that the "people" empowered the government to perform certain tasks, but reserved other areas as off limits from government control, even if the those areas would only be affected in the ordinary course of executing those powers.

Constitutional rights are all zones of protection from government interference. Rights (in this context) are therefore the inverse of a power -- i.e., an exception to a power. That is what the term "privacy" (in this context) is also supposed to mean.

(Of course, one must take this formulation with a grain of salt. It's only theory now, not practice. After all, the federal government now seems to believe that it has no enumerated powers, but general powers, just as Hamilton predicted, or at least the enumerated powers are so broad and subject to flexible interpretation that they might as well not be enumerated at all. )

I suspect the term "right to privacy" was invented by people who do not subscribe to the doctrine of enumerated powers, or fail to recognize that rights and powers offset one another in a zero-sum game.

Yeah, thats why I never

Yeah, thats why I never liked regular law and order. It seemed like every episode was McCoy vs. The Constitution.

"For a while now, I felt the

"For a while now, I felt the presence of the Bill of Rightsinverted the nature of the Constitution. Apparently someone else agrees."

Well, that was the argument at the time and it certainly has its merits. However, there were some who felt that without a BOR it would be dangerous to not have certain, special guarantees in writing even though they may be technically redundant. Regardless of the fact that modern times have tended to view anything not explicitly stated in the BOR as fair game for government intrusion, I can only imagine that it would be far, far worse without it. Despite the gradual erosion of our rights over time, I sincerely doubt we'd have anything close to our current level of liberty without the BOR. Ultimately, I don't think the BOR gives politicians significantly greater leeway to subvert the spirit of the constitution (they're devious enough on their own), while it does provide a final bulwark for those most basic rights in a free society.

Isn't all constitutional

Isn't all constitutional reasoning scary?

Mr. McBride, meet Mr. Spooner.

Constitutional rights are

Constitutional rights are all zones of protection from government interference.

Even this is wrong:

Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved...

This is not a natural right.

Amendment XIII
1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

This is a claim to invite government interference against private parties as well as states.

Add in the voting rights amendments (15th, 19th, 24th, 26th) as well. These are also claims that invite government interference.

You're just straight up wrong.

- Josh

Constitutional reasoning is

Constitutional reasoning is not, in itself, scary. Private defence agencies in an anarchic order will have to deal with all the structural questions that states do now. Markets will determine which ones succeed and which fail, but determining the proper structure and relationship of the PDA parts is constitutionalism of the same sort.

- Josh

You’re just straight up

You’re just straight up wrong.

No, you misunderstand me. I was over-broad, particularly with the use of the word "all." I'll clarify.

When I said "in this context" I was referring to the type of right that normally falls within the ambit of the so-called "right to privacy." Specifically, this particular class of rights is a form of protection from government interference.

I should have been more clear that I am distinguishing between:
(1) rights against the government and
(2) rights against other private persons.

The reason for this distinction should be obvious. The source of our rights against other persons is not the government. We are endowed with these rights by our Creator, as someone once said. They are not the gift of government. They exist before and apart from government. We create government to secure them, not to make them.

In contrast, the government's powers are (in early American Constitutional theory, at least) granted to it by the sovereign, independent people. As Mr. Hamilton was explaining above, we delegate these powers to governments, and whatever we reserve are rights. We thus have rights against the government precisely to the extent to which we do not grant it a power.

Now, whoever invented the phrase "right to privacy" did not seem to understand this basic structure of American government. The rights that fall within this concept consist of rights against government power -- the right to be free of laws regulating sexual conduct, abortion, etc. The so-called "right to privacy," therefore, is a right against the government, just like the right to be free of unreasonable search and seizure, the right to the free exercise of religion, etc. This group also includes the right to be free of arbitrary governmental action against us, which therefore includes the right to trial by jury, which may look like a right against another private person, but it is actually a right against the government, even though that governmental action is instigated by another private person in the context of a civil suit. (So, your first example is misplaced.)

The term "privacy" (as it is used in the context of the "right to privacy"), means nothing other than a generalized freedom from governmental action.

In that sense, ALL rights against the government are FORMS of "privacy!" The right to be free from government seizure of firearms, free from having troops quartered in our homes, to not be punished without specific trial procedures ... all of these are rights against the government. All of these are FORMS OF PRIVACY.

As I said, my disagreement with the idea of a "right to privacy" is that the term is stupid, meaningless, redundant, etc. If they wanted to call it a "right to sexual privacy," it might be a little better, but it would be better if the word "privacy" were removed altogether.

My larger point is that whatever the word "privacy" is meant to cover is already covered by the fundamental structure of a constitutional government.

But, the kind of people who toss the term "right to privacy" around also happen to be the same people (generally speaking) who also seem to reject the idea of a federal government of limited and enumerated powers (i.e., leftists and liberals). Why is that? Why do they so vigorously reject the idea of a federal government that was never granted the power to do 90% of what it does now?

Because they are the poltitical beneficiaries of those governmental functions. If we simply respected the idea of a government that has no power except those that were expressly granted, then the New Deal would be eradicated, the Great Society too, etc. States would have a great deal more power than they do now. This all goes against the left-liberal agenda.

If the left-liberals advocated a government of limited and enumerated powers (i.e., reading the Constitution as it actually is, not as they'd like it to be), then they would not need the idea of a "right to privacy." They would be able to merely point to the Constitution, show that there is no power granted to regulate such matters, and that would be the sum total of the argument. They don't do this because that would also undermine everything else on their agenda, particularly as to economic matters. So, they invent and rely on the vague, meaningless term "right to privacy" in order to make up for this deficiency.

That's as "straight up" as I can be, Josh.

Funny about the 9th

Funny about the 9th amendment. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people". It say nothing.

What are those right that the people retain even thought not explicitly protected by the Bill of Rights, who will decided? It all end up being judges and elected officials pushing as far as they can and avoid a popular revolt at the same time.

So yes the people and state do have rights that is not articulated in the Bill of Right but these rights only exist as long as people willing no tolerate it infringement by not electing any officials that would infringe on these undeclare rights. That what we have elected official for. Every law created is a reduction in rights.

What are those right that

What are those right that the people retain even thought not explicitly protected by the Bill of Rights, who will decided? It all end up being judges and elected officials pushing as far as they can and avoid a popular revolt at the same time.

The idea was that every power NOT delegated to the US government was an implicit right. It didn't work out that way, of course, but that was the theory.

Another mechanism (besides the limited, enumerated powers in a written Constitution) that was supposed to prevent the growth of the power of the federal government was federalism: if a State believed that the federal government had acted unconstitutionally, that state could veto the federal government. This was spelled out in the Kentucky Resolution of 1798, which Jefferson (and maybe Madison) also wrote, in response to the Alien & Sedition Acts.

the several States composing the United States of America are not united on the principle of unlimited submission to their general government; but that by compact under the style and title of a Constitution for the United States and of Amendments thereto, they constituted a general government for special purposes, delegated to that government definite powers, reserving each State to itself, the residuary mass of right to their own self government. And that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.

where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them

The so-called "Civil War" put an end to federalism. The 17th Amendment providing for the direct election of Senators was just the final nail in the coffin.

Federalism is a means to achieve decentralization. It's clumsy and imperfect, but it is certainly better for liberty than having a unitary government that can decide for itself how much power it has.

It all went to hell when

It all went to hell when they chucked out the Articles if you ask me. But yeah, the War of Northern Aggression really clinched it.

After the War and the New Deal (FDR's, not Lincoln's), how can anyone think either party is on the side of good?

Josh, "Markets will

Josh,

"Markets will determine which ones succeed and which fail, but determining the proper structure and relationship of the PDA parts is constitutionalism of the same sort."

No, to be legitimate such arrangements would have to be by legitimate contract. The constitution is no such thing.

You're thinking about an offer, or a business plan, or a contract; there's no sense in likening those to the constitution.

I don't know what

I don't know what jurisdiction lawn order is set in, but 10 states have constitutions with the term "right to privacy" in their bills of rights.
Get to know your state constitution's bill of rights - you might need it someday.
But the US bill of rights also protects the right to privacy.
The 1st amendment is in there because of peter zenger. His right to freedom of the press included the right to print anonymous books.
Talley v California (1960).
The 4th amendment is a right to privacy - it prohibits unreasonable invasions of your privacy in your home person papers and effects.
The 5th amendment contains a right of privacy - the cops aren't supposed to beat a confession out of you.
Ask me sometime what happened when the cops said "you have the right to remain silent - do you understand these rights?" and I said "No."
The 9th and tenth at least arguably are about privacy. and oh yeah the third. so that's what at least 6 out of 10, and the others tend to be procedural protections of the substantive rights (arms, counsel, juries, etc.)