From: cramer@optilink.COM (Clayton Cramer)
Newsgroups: soc.motss,soc.bi,misc.legal
Subject: Re: NOTICE - Details of the March on Washington
Date: 19 Dec 92 00:42:45 GMT
Organization: Optilink Corporation, Petaluma, CA

In article <1992Dec14.175317.1045@linus.mitre.org>, jclander@texas.mitre.org (Julian C. Lander) writes:
> |> Now I am curious to know what exactly is the text which implies the
> |> right to privacy.  Would somebody be willing to post it?
> |> 
> 
> Well, there actually isn't one.  Mr. Limoncelli guessed at the 12th amendment,
> but I checked the text of the U.S. Constitution, and that is the one that changed
> the method for voting for President and Vice-President of the U.S.  (Before it,
> the VP was the person who got the second-highest vote count in the presidential
> election; after it, they were voted on separately.)
> 
> If I remember correctly, arguments about privacy are based on the 10th
> amendment, which states (and I have the number and text right) that rights
> no enumerated in the U.S. Constitution are reserved to the States or the people.

Actually, the privacy argument is based on the 9th Amendment:

    The enumeration in the Constitution, of certain rights, shall not
    be construed to deny or disparage others retained by the people.

The difficulty is that the 9th was only intended to protect individiuals
against the Federal Government, not the states, and the 14th Amendment,
which has been interpreted by the Supreme Court as extending *most* of
the Bill of Rights to limit state power, was not intended by its 
authors to extend to the 9th and 10th amendments:

              The states,  declared Michigan  Sen. Jacob  Howard, who
              guided the Amendment to passage in the Senate, could no
              longer infringe on the liberties the Bill of Rights had
              secured against  federal  violation;  henceforth,  they
              must  respect   "the  personal  rights  guaranteed  and
              secured by  the first  eight Amendments."   [Rep. John]
              Bingham  said  much the same thing in the House.   Some
              portions of the Bill of Rights were of little moment in
              1866 (no  was threatening to quarter soldiers in a home
              without consent  of the  owner).   But it is abundantly
              clear that  Republicans wished  to give  constitutional
              sanction to  states' obligation  to  respect  such  key
              provisions as  freedom of  speech, the  right  to  bear
              arms, trial  by impartial  jury, and protection against
              cruel and  unusual punishment  and unreasonable  search
              and seizure.   The  Freedmen's Bureau had already taken
              steps to  protect these  rights, and  the Amendment was
              deemed necessary,  in part, precisely because every one
              of them  was being systematically violated in the South
              in 1866.[Eric Foner, _Reconstruction_, (New York,
              Harper & Row: 1988), 258-259.]

The 10th Amendment, in any case, wouldn't help much on extending a
right to privacy, because it reserves to the *states* powers not
delegated to the federal government -- like passing sodomy laws.

> One of the ongoing issues is the right of privacy, because it is not
> enumerated anywhere.  (It's a strict vs. loose constructionist battle; 
> generally the former are conservative while the latter are liberal, but
> not necessarily.)  The question is whether such a right exists.

The arguments accepted by the courts in support of privacy are very
limited.  The right to obtain birth control devices was derived from
a right to privacy of married couples -- the Supreme Court took, even
in the liberal Warren Court, a pretty narrow view of the limits of
that privacy.
> 
> As far as anti-discrimination legislation goes, I think that it relies
> on the 13th (?) amendment, which states that all citizens of the U.S. are
> citizens of the states in which they reside.  This gives the federal
> judiciary the power to look into the states' policies, since the
> citizenship of its residents becomes a constitutional question.
> 
> The separate parts of anti-discrimination issues (race, sex, national
> origin, previous condition of servitude, religion, etc.) have different
> sources.  Racial ones are constitutional (a Civil War amendment, but I
> forget the number; it's in the range 13-16); that's why "separate but
> equal" became an issue, but "equal" treatment was required.  Sex

It's the 14th amendment.

> equality is not explicitly in the Constitution, which is why there is
> a push for an Equal Rights Amendment.  I honestly don't remember all
> of the grounds for those lawsuits, but I think most of them are based
> on Federal law, in the sense of bills passed by Congress, and not
> case law of the Constitution directly.
> 
> Julian C. Lander



-- 
Clayton E. Cramer {uunet,pyramid}!optilink!cramer  My opinions, all mine!
C++ is to C, as lung cancer is to lung.
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