Is A Natural Right Of Privacy In The United States Constitution

I was just watching Senator Biden at the Senate Confirmation Hearings of John Roberts as Chief Justice as he made a statement about the candidate not believing in the right of privacy. This so called right of privacy is a very interesting case sine its discovery in the 1965 GRISWOLD v. CONNECTICUT. The first and largest objection I have is the state made is that the Justices whom decided their was a right to privacy in the U.S. constitution were not unified in where this so called right existed.

The decision by Mr. Justice Douglas is basically that several amendments to the U.S. Constitution deal with aspects of the right to privacy and that these aspects combined create the right of privacy. The ideal is illogical since the reasoning used by the court is invalid in that just because some aspects of the right of privacy are protected by the Constitution does not mean that all aspects of the right of privacy are protected by the Constitution. The decision was also unsound in that some of the examples the court used dealt with other rights such as the right of property and not privacy an example of this being the quartering of soldiers.

Two other Justices Harlan and White agreed that there is a right to privacy in the Constitution but disagreed where it was. Their statement said it was granted by the due process clause of the 14th Amendment a ideal that Justice Douglas has denied in his own decision on the grounds that the Supreme Court was not a super legislation to decide issues of social, economical, or business in nature. These two Justices were basing their decision on a previous decision made by a conservative Supreme Court which was the 1886 decision of Santa Clara County v. Southern Pacific Railroad in which the court decided that artificial persons were persons under the 14th Amendment. The decision was completely absurd since person clearly refers to natural person even to the point of using born at one point. Still the two Justices using precedent and not law are justified in there decision since the court did not reverse their decision merely backed off of it saying they were not super legislatures, a point Justice Douglas reiterated it.

The decision given by Mr. Justice Goldberg and joined by Chief Justice Warren and Justice Brennan. They concluded that privacy in marriage was a right held by society and as such was protected by the ninth amendment. I find two flaws in the reasoning one is the burden of proof which I find lacking. In fact William Blackstone calls marriage a private, as in ownership not secrecy, relation of persons that the government treats as other contracts. If continue to read William Blackstone’s Commentaries on the Laws of England you will find the government and the church were not adverse to regulating marriage. These laws were the laws in effect in the United States at the time the ninth Amendment was accepted. The second flaw I find is in the wording of the 9th itself which seems to be addressed more to the federal courts and not to limit legislature as you will see below.

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

My question is why question whether this Connecticut law violated a questionable right to privacy at all when the law clearly violate the right to liberty and the right to the pursuit of happiness both enumerated in a legal document we know as the Declaration of Independence and which can be brought into the Constitution through the ninth Amendment if you ignore the way it is addressed something I would be reluctant to do. You can also use the clause secure the blessings of liberty to ourselves and our posterity that is in the preamble and is one of many reasons the U.S. Constitution was established.

If the Justices were attempting to establish a right to private property then they could have used the Ninth Amendment, the Declaration of Independence, the writings of John Locke, and the commentaries of William Blackstone to establish the existence of a right to property and the right for the government to secure these rights. This argument has the same flaw that other like laws based on the Ninth Amendment do in that the Constitution only protects them from violation by the enforcement of other enumerated rights. The argument could be made successfully that if they are protected from the law written in the Constitution then they are certainly protected from lesser laws. Regardless the at least the 3rd, 4th and 5th Amendment address the right to property. So all you need to do is prove a marriage was the property of the couple, which is easy to do using the law at the time.

If the Justices were instead attempting to establish that United States citizens had the right to hide or conceal items from the government and others then the 4th Amendment covers that by forbidding illegal searches.

The question is not if a right exist because in most cases a law by its nature violates at least one human right if only the right to liberty but if there is significant reason to violate that right. The reason for the Connecticut law in question is that is designed to protect the morality(welfare) of the general populace. General welfare is a reasonable reason to violate an individuals rights but the question becomes is there a significant detrimental effect on the General Welfare by overturning this law. I have no ideal what evidence the Connecticut lawmakers used to justify there law but I do know the sexual revolution sprang up at the same time as this court case was decided. The results of that revolution was a declining rate of marriage and more dysfunctional families with the accompanying higher level of domestic and child abuse.

Overall wise Justices don’t second guess legislatures because theoretically the governments of the United States was set up to be a republic with legislative members being accountable to The People. The reality is that The People cannot micromanage their representatives and have to compromise on a best choice and sometimes need a champion to get rid of oppressive laws. If the courts could strike down a law and the legislatures vote that law back in it would work better to serve the People than the current system. Such a system is what reputedly what Abraham Lincoln proposed was enumerated in the Constitution and I tend to believe he was correct as the Judicial branch is forbidden to use legislative powers making precedents and court law illegal on a federal level.

In conclusion the 1965 GRISWOLD v. CONNECTICUT was wrongly decided in that the reasoning used by the deciding justices was flawed. It is correct in that a right to privacy can be found in the Constitution but I am unsure if it is the same right of privacy they were attempting to find. It is also true that the Justices have the right to wisely or unwisely decide if a significant and justified reason to violate the right of an individual exist and if not then to overturn a law violating that right. On the other hand leaving a flawed judgment in place is not justified. I have previously voiced a hypothesis that Griswold might not be wise.