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:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X:
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.
Now, where’s the right to privacy?
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.“
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).
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.
In my daily life, privacy is mainly freedom from unwanted telephone solicitations, panhandlers, and various salesmen at my door. I don’t see anything in the Constitution regarding these mundane items, and they are apparently allowed as long as I’m able to turn away without being detained or threatened. The effectiveness of so-called “do not call” lists is hard to judge without knowing how many calls you’d have received had your number not been on the lists. I still regularly receive calls from various “veterans” and law-enforcement fund-raisers. I suppose the lists are legal because most uninvited solicitation calls disturb the sanctity of the home.
Lemastre – you bring up a very important point. Most people actually read the Constitution backwards – not in its words, but in its meaning.
The Constitution was written under a principle called “positive grant” what this means is simple – if a power is specifically listed (positively there) in the constitution, then (and only then) can the federal government use that power.
The founders felt this principle was so important that they codified it in law as the 10th Amendment.
In short, if a power isn’t spelled out in the constitution and given to the feds, they can’t do it.
The government are the ones who take pictures of us from google earth and all the stuff up above, not the state. That is invading EVERYONE'S right to privacy. That is a definate invasion of our privacy. This is suppose to be the land of the free! Where are we free anymore with the government watching our every move?
Someone has never heard the various expectations of privacy used in law. How do you have a reasonable expectation of privacy when you are outdoors and able to be photographed? There's no privacy there. You don't have a reasonable expectation of privacy outdoors. I could walk up to you on the street and take your picture and post it on a website and you'd have no legal grounds for an invasion of privacy case because your expectation of privacy is significantly reduced when you are outside of your home. People are even allowed to dig through your trash and it's legal and not a violation of your privacy. You threw it away, so it's no longer yours or in your home, thus YOUR privacy has not been invaded; that person is just going through trash. Abandon the paranoia and come back to reality.
what about former sex offender right to privy and their name work address and email are posted all over the internet ?
The right to privacy is included in the Constitution because it doesn’t say that the government has the right to take away the right to privacy? That’s circular reasoning if I have ever heard it.
That’s like saying that my right to an amazing footwear collection is in the Constitution because the Constitution doesn’t say that the government has the right to take it away from me. Yeah, sure, I have the right to obtain an amazing footwear collection, as long as I don’t break any other laws in obtaining it. But it’s NOT IN THE CONTSITUTION.
our constitutional rights have dwindled since obama coming to office,but for years rights have been violated by local and state governments for which the fed was knowledged of, and did nothing, people such as myself have spent tens of thousands of dollars on attorneys court fees prosecuting the government agencies and officials involved, and some of the officials are still there even though they have been convicted and judged against by the supreme courts rulings, why are they there if they have been proven to violate the constitutional rights they swore to protect…….
and yes SHERIFF JOE ARPAIO is one of the worst in this, he has lost so many lawsuits for civil and constitutional violations and is being prosecuted on invasion of privacy, illegal surveilance fraud and grand larceny extortion as we or as i am tryping this…
i did not “enjoy” this post whatsoever!!!! …when you post about homosexuals engaging in activity that is an abomination to God…this makes me sick !!! fuck you
The rights of the sex offenders have been constitutionally violated. But they put the reason for public registry under the notion of ”Public Safety”. But if that were true, then why isn’t there a public registry for those who commit HATE CRIMES against society, or make a list available to the public about those individual who knowingly spread HIV and AIDS through the community. But they don’t, because the everyone knows that our right to bare arms is taken a way from the criminals, so it is know that they will not be armed. But the they go a step further for the sex offender by posting your name, your face, where you live, and what you where accused or convicted of knowing the public can not be trusted with such information. Due to the likely event that they will take the law into there own hands. These days everyone who has an open criminal record, is already on the internet. But to single them out for public execution by those individuals who are more that willing to take the law into their own hands. Honestly, I think that the U.S. Supreme Court should change 1 or 2 about the “Adam Walsh Act” like all sex offenders being made public for only a certain amount of time, ranging from 15 to 25 years and that should be considered probation or parole, but not a life sentence. Life sentences are for those in prison, not for the ones who are trying to turn there lives around and become productive members of society. Or only allow law enforcement officials access to this information. After all if it is quoted by one famous politician who said “We do not Torturer People” then that means, no foreign citizens of the world and surely not our own.So it should be one or the other but the U.S Supreme Courts Should allow both.