From: backpack@access.digex.com (Stuart Reges)
Newsgroups: alt.society.civil-liberties
Subject: Re: Right to Privacy: Real or Not?
Date: 9 Apr 92 15:43:41 GMT
Article-I.D.: access.1992Apr9.154341.6713
Organization: Express Access Online Communications, Greenbelt, Maryland USA

eireann@triton.unm.edu (The Fisher King) writes:
>
>In all the hullaballoo that is coming about because the U.S. Supreme
>Court might overturn Roe v. Wade, I thought it would be nice to have
>a discussion on the alleged right to privacy implied in the U.S.
>Constitution.
>
>To make things easy, I propose that we at first limit ourselves to the
>Constitution itself.

I assume you mean the Bill of Rights, not the Constitution proper, because it
was the framers' intent to have no limits on federal power in the document
itself (they preferred to trust in the good judgement of the people who would
"throw the bums out" if the legislature ever passed egregious laws).  They were
highly frustrated by the failures evident in the national government under the
Articles of Conderation and didn't want to limit the new government in a way
that would require yet another constitutional convention.  As Hamilton says in
Federalist 23, "it is impossible to foresee or define the extent and variety of
national exigencies, or the correspondent extent and variety of the means which
may be necessary to satisfy them.  The circumstances that endanger the safety
of nations are infinite and for this reason no constitutional shackles can
wisely be imposed on the power to which the care of it is committed."

But Hamilton was overruled when a Bill of Rights was added.  Obviously, the
case for a right to privacy comes from the ninth and tenth amendments which
reserve powers not enumerated to the states and the people, respectively and
which declare that rights not enumerated are nevertheless retained by the
people.  Those amendments are so vague that they could be used to defend just
about anything, as long as it could be claimed as a "right."

For me, I've tried to understand the implication of these amendments by
studying the period in which they were written.  I find little evidence to
support the idea that the founding fathers had some libertarians among them who
interpretted the amendments as preserving a long list of rights, privacy among
them.

First of all, it's important to understand that when it was adopted, the Bill
of Rights was intended to limit only the federal government, not the state
governments.  Madison, who originally opposed the Bill of Rights along with
Hamilton but later supported and drafted them, originally included an amendment
that would have extended them to limit state powers as well, but he was
overruled (he lamented that this amendment had been "the best of the bunch").
It wasn't until the Civil War that this extension took place with the 14th
amendment's "equal protection" clause.

Second, I have found no evidence of a concern for privacy even among the most
vocal antifederalists.  Actually, I would be greatly pleased to find such
evidence and I am a complete amateur in this domain, so I would love to be
contradicted by someone who can disprove me.  I've read a great deal of the
antifederalist arguments against the constitution, but I've never come across
anyone defending privacy (the seemed to be more concerned about the question of
whether we should strive to become a "great nation," which would almost
certainly mean a loss of freedom, or whether we should be content to be free
and less grand).  George Mason is probably the closest I've found to an
advocate for privacy, although I haven't had a chance to study his writings
much.  Thomas Jefferson when he rewrote the Virginia laws let stand a law that
punished homosexuality ("buggery") with castration for men and the boring of a
hole of not less than 1/4 of an inch in the cartilage of the nose for women.
If you look at the practices of the time, I think it was very common for
Americans to butt into the affairs of their neighbors (punishing unwed mothers,
for example).

Please, please someone refute me!  I'd love to find some libertarians among the
founding fathers.

+---------------+---------------------------------------------------------+
|  b	  p	| Stuart Reges (target uSeRs?)	backpack@access.digex.com |
|   a	   a	|							  |
|    c	    c	| You've gotta live, live, live!  Life is a banquet and   |
|     k	     k	| most poor suckers are starving to death.  --Auntie Mame |
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