Concordia res Parvae Crescunt
by Harry Browne
Originally published on May 9, 2003 at HarryBrowne.org
Senator Rick Santorum recently caused a brouhaha when, during an Associated Press interview, he defended laws against sodomy – saying that permitting sodomy is as good as saying polygamy, incest, and adultery should be permitted.
This provoked a firestorm – and that caused a far more troubling Santorum statement to be overlooked. He said:
It all comes from, I would argue, this right to privacy that doesn’t exist in my opinion in the United States Constitution . . .
Is there a right to privacy in the Constitution?
Well, I searched my copy of the Constitution of the United States and I couldn’t find the word privacy anywhere in the document. Does this mean the Senator is right?
I also searched the Constitution and I couldn’t find the word marriage either. Does that mean I don’t have a right to be married – that a so-called “right to marriage” was invented by some bleeding-heart liberal judge somewhere?
The Constitution also doesn’t include the right to buy products from foreigners, or to have children, or to read a book, or even to eat food to survive.
How could the Constitution have overlooked such basic human rights?
Because the Constitution isn’t about what people can do; it’s about what government can do.
The Constitution was created to spell out the limited rights or powers given to the federal government. And it was clearly understood that the government had no powers that weren’t authorized in the Constitution.
The Bill of Rights
The original Constitution contained no Bill of Rights, because the authors believed it wasn’t necessary – since the Constitution clearly enumerated the few powers the federal government was given.
However, some of the Founding Fathers thought there could be misunderstandings. So a Bill of Rights was composed – and some states ratified the Constitution only on condition that those amendments would be added to the Constitution.
Whereas the main part of the Constitution spells out the few things that government may do or must do, the ten amendments of the Bill of Rights spell out what government may not do. For example:
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.
(Notice also that nowhere in the Constitution does it say that government may violate the Bill of Rights if the target of its wrath is a non-citizen. Government isn’t authorized to jail non-citizens indefinitely or deny them due process of law. There’s a good reason for that, but that’s another subject.)
Constitutional Ignorance
The irony in the Santorum diatribe is that if you were to ask him whether he believes the Constitution is a literal document – as opposed to one that can be reinvented by judges and politicians – I’m sure he’d say he’s squarely on the side of the Constitution as a literal document.
And yet he doesn’t even know what’s in it. And he wants to reinvent it as a document that gives the government the power to regulate your personal life and invade your privacy.
This is pitiful. Politicians swear an oath to uphold and defend the Constitution, and they don’t even understand what it is.
But then, most of them were educated in government schools, just like the rest of us. So why should we expect them to understand the importance of limiting governmental power?
When the Constitution is discussed in schools, the focus is generally on the constitutional procedures for appointing judges, electing politicians, terms of office, and other mundane matters.
There really are only two areas of the Constitution that every American should understand and understand well:
Article 1, Section 8 – which enumerates the areas in which Congress has the power to legislate. You’ll notice that no power is given there for Congress to pass laws regulating health care or education or charities or agriculture or any of thousands of other areas in which politicians now tell us how we must act.
The Bill of Rights – which makes it plain that the government has no authority to do anything that isn’t specified in Article 1, Section 8.
Perhaps the greatest mistake made in American history was in allowing government to educate our children. We can’t expect government employees to teach our children that the one unique aspect of our heritage – the one element that set America apart from the rest of the world – was ~.
Once government moved in on education in the 1800s, it was all downhill from there. In 1913, the income tax amendment was passed – giving the federal government virtually unlimited resources to trespass in any area of our lives that politicians took a fancy to.
Our two greatest needs, if we are to regain the liberty the Founding Fathers bequeathed to us, are to:
Only when those goals are achieved will America once again be the land of liberty – providing light and hope and inspiration to the entire world.
Harry Browne (RIP 1933-2006), the author of Why Government Doesn’t Work and many other books, was the Libertarian Party presidential candidate in 1996 and 2000, a co-founder of DownsizeDC, and the Director of Public Policy for the American Liberty Foundation. See his website.
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The solution, of course, is that neither the federal government, nor the written Constitution-- nor indeed even the State governments-- are in themselves limiting on ANY government's power; on the contrary, the ruling sovereign is the PEOPLE of the individual state, to construe the Constitution as they deem appropriate.
If the People of the state are not the ruling sovereign, then this defaults to the federal government; for the American population at large, certainly has no sovereign authority to make or overturn federal laws-- nor did they ever. On the contrary, power was only DELEGATED to state and federal governments by the People of each individual sovereign state; and they are the final arbiters thereof, with ALL laws being utterly subject to their final discretion, as the supreme ruling sovereigns within the boundaries of their state respectively.
Thus, a "strict constructionist" view of the Constitution-- ISN'T; i.e. the Constitution was never INTENDED to be limited strictly to its Four Corners in either what the governent could do-- nor indeed, in what it COULDN'T... contrary to Lincoln's claim that the federal government was only limited by the "expressly written rights" contained therein; or the various others who claim that the federal government's power is limited TO those things expressly written in the Constitution.
"I searched my copy of the Constitution of the United States and I couldn’t find the word privacy anywhere in the document. Does this mean the Senator is right?"
I wonder, did his copy of the Constitution contain a 9th amendment, which states that "The enumeration in this Constitution of certain rights, shall not be construed to deny or disparage others retained by the People?"
And maybe ONE of those rights might be a right to privacy.
Traditionally, the People of the states considered it a basic rigth to be safe from prying eyes and public scrutiny, as well as invasive surveillance by government officials and self-appointed nosy-bodies which today we equate with "Stalinism--" over 100 years before Stalin was even born.
Your freedoms exist within in your own ability to them and the authority to do those things comes from yourself and not from the constitution. A person's conscience is their own "constitution" the determines what limits that that person can do so the authority over one self is oneself. The government's conscience is the constitution that determines what limits that in can do so the constitution is the authority over the government.
Its so funny to hear so many people say that the constitution forbids the government from taking away your five rights in the first amendment because that assumes that it can't restrict your behavior in those areas but can in anything outside of those five freedoms. The argument suggest we only have five freedoms so I think if we want to expand our constitutional protections of our freedoms then we have to go back to the enumerated powers clause of the federal constitution since it restricts the laws that can be passed to a few areas therefore not allowing government to restrict our behavior outside those enumerated powers.
no it does not. unless you are female
Right! And just because it's constitutional for a state to do something, it doesn't mean that it should. For example - state level socialized health care.
Well, I can sure agree with you that the bottom line IS the practical reality.....
Oh, I am MOST definitely on your side. Make no mistake about that. I just don't think the semantics are of all that much importance. Like you said, if the people grant powers, they can take them back. In retort, I would say that if the people didn't grant powers, they can still take the dang place over. And if the government grants rights, the people can still TAKE more rights by force as they deem necessary or expedient. See what I mean?
If they found a missing scroll which contained a provision in the Constitution that said,"The people shall obey the feds at all turns," would you do so simply because it was "so written?" Not me. The words are not as important as the mood and circumstances.
There's a big difference between "giving up" rights and "delegating power" over an area. While you may consider that a semantic issue, it's not. It's the very foundation of the American system. Whomever "gives" or "delegates" rights, powers, etc - is "sovereign" And sovereignty is defined as final authority.
If "rights" are given by the government, then the government is the final authority and can decide whether or not to take those away. but, when people are sovereign - which is how it's supposed to be - then people can take back any delegated authority as they please. That's what the entire tenth amendment movement is all about.
And while we're in a place where the practical reality is that liberty is diminishing rapidly, it's essential to get the argument correct.....
join us.
The problem with the "right to privacy" is it is so broad that it would come to the exclusion of any and all other law.
Your right, there is no right to privacy or really much of any other right, as the Constitution is NOT about what the people can and cannot do, its about what the Federal government can and can not do and thus by exclusion the broad spectrum of things the people and their states alone could and could not do.
So don’t get upset about the constitution not including a right to privacy, buying a product ect... The U.S. Constitution’s propose was made to protect (by exclusion) a far broader spectrum of rights then them simply those finite and poorly defined rights.
Yes, the Constitution does not grant you the right to privacy or any other right. This is simply because a Constitution does not and cannot grant YOU an individual or Your State any Rights at all, as the rights came from you the individual, and thou you as your agent with regard to the central government your State to start with.
A Constitution in your ratification (consenting) to it, is you, either directly or thou your State granting of a finite and limited set of Rights/Powers to a government for a finite, limited, and defined set of proposes. That is what a Republican Constitution of civil (elected civilian) government is.
The moral of the story is, the constitution does not grant you rights, because YOU the individual are on this earth the originator of all rights/powers, and therefore cannot be granted that which you alone already have.
So no a constitution does not contain rights/powers for individuals or their States (in the case of the Federal Constitution), but rather defines the extent and otherwise limits of the rights/powers for that Government.
That is the very heart of American Republicanism, and ALL American government must follow that basic natural pecking order. Because American Government is not about the protecting the power of those that lead them, but rather All American Governments are about protecting the rights of the individual citizens under that Government.
I see few 'get it'...
After the revolutionary war, The United States of America went broke, totally and completely.
In 1938 all judges were notified that none of the 'laws' in existence or precedents, prior, were in effect or held any validity.
This includes all legal protections at all levels, etc.
We have been since that date under Maritime jurisdiction and the international law known as The Universal Commercial Code.
Our debt allowed this to come about.
Note the gold fringe and mast insignia on all flags in all courtrooms. This signifies Admiralty jurisdiction. This signifies the override of The UCC of all other forms of legality...nothing less, nothing more.
I strongly suggest finding a lawyer who is familiar with this area of international law.
I am involved in a case that can open all this to everyone and am actively seeking a lawyer familiar with this area of law. The merits allow for acknowledging, publicly, and forces admission of this 'condition', etc.
Matters have been taken out of our hands and entered into the arena of The World Court, hence negating everything else.
This is much more far reaching than most have any idea about.
No one has any 'rights' by any other legal definition...
I hope my efforts prove fruitful, for all of us.
This is pretty unbelievable, what you're saying. Are you serious?! I came upon this website because I've been arguing with my Republican peers for years that there doesn't have to be a right to privacy in the Constitution in order for us to HAVE a right to privacy, because the Constitution wasn't about WHAT WE CAN DO, but WHAT THE GOVERNMENT CANNOT DO. But in looking for people who understand this concept (it's hard to find these people - most Americans just don't grasp this, EVEN those who supposedly understand the Constitution), I came upon what you're saying here. This sounds really out there, but I'm going to look into it further. It actually sounds pretty scary.
Re: the income tax. There is so much ignorance about this, even among so-called libertarians.
www.losthorizons.com will clarify this for anyone. The power to tax is the power to control and to destroy.People do not know what they think they know. Ignorance rules, along with fear. Knowledge dispels fear.
Guns and jail dispel insisting that knowledge dispels fear. As much as I'd like to starve the beast, I'm not volunteering to be among the early ones to go to jail.
Tom, the authority exists by way of Article VI. It says, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
It's the last phrase. "... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
What this means is that if anything in any state constitution or anything in any state law conflicts with the US Constitution, the US Constitution prevails. Therefore, an Unconstitutional provision in a state constitution or state law is invalid, null, of no force, or whatever similar term or phrase you want to ascribe to it.
That is why, for example, if a state was to pass a law or make an amendment to its state constitution that reinstated slavery, that law would be struck down at the federal level as Unconstitutional.
Regarding the sodomy law decision (and others concerning state law), where does the Constitution grant the US Supreme Court the authority to strike down state law? It doesn't.
That's right; we need to remember that the federal Bill of Rights is a check on the federal government. States have their own constitutions for a reason. If a state chooses to enforce certain laws like those against sodomy, it can do that. Even Thomas Jefferson proposed in Virginia that sodomy be punished by castration (for men) or by drilling a hole in the nose (for women): see http://bit.ly/7WIzy4
Whether one agrees with Jefferson's particular proposals or not is irrelevant; the point is that he believed states have the right to punish such things.
Actually, you will find that, at least according to the way all the courts approach the issue, a right to privacy is secured by the 4th Amendment, in restricting the government's authority to search.
There are MANY, MANY cases on this. Here's a neat keyword to search: "Curtilage." Do a Google search on "search curtilage privacy."
Are you kidding guy? Did you even READ the article? Of COURSE the 4th amendment restricts government to protect your right to privacy, but like Browne wrote so clearly, the SOURCE of your rights is not the government, and its not the constitution either. Go ahead cite your court cases who the hell cares. Anytime I hear that I think Dred Scott anyone? Or how about Raich? Judges and lawyers are nothing more than political hacks.
Well, not to peel an onion, here, but the article says, "Now, where’s the right to privacy? It is clearly in those two amendments." (The 9th and 10th). I merely pointed out that the robust law on the issue exists in an analysis of the 4th. Would you agree it's not in those 2 amendments, either?
"Judges and lawyers are political hacks." Dude, get a life... or a real opinion. You have judges and lawyers to thank that your happy a$$ is not under the control of the English empire, not to mention so many more benefits you have received from them that you obviously take for granted. Get real!
"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."
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