Right to Privacy – From the Declaration to the Constitution

Tibor R. Machan

One old gripe about a near-libertarian interpretation of the Constitution -- leveled at the court, for example, when it overturned a Connecticut law banning contraception in the name of the right to privacy -- is that it mentions no right to liberty or privacy.
On the Fourth of July, however, we should note that the Constitution contains the Ninth Amendment. It states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” What this means is plain: there are other rights we have besides those listed in the Constitution.
But what rights are they?
Before the Framers produced the Constitution, there was the Declaration of Independence, being celebrated today, and many of those same Framers signed it. It makes clear that those who founded this country agreed that “We hold these truths to be self-evident: that all men are created equal; that they are endowed, by their Creator, with certain unalienable rights; that among these rights are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall most likely to effect their safety and happiness.”
A consistent reading of this passage implies, plainly, that we have the right to do anything that does not violate others’ rights, contrary to what many champions of big government, Right and Left, would admit.
Sure, the Bill of Rights lists rights the Framers believed needed special mention, such as the First Amendment, the second and the fourth stand out. Yet all these clearly presuppose the right to liberty or privacy. Why, shouldn’t government carry out unreasonable searches if those being searched didn’t have a right to be left alone? A traditional monarchy, for example, isn’t bound by such restraints since it doesn’t recognize individual rights to liberty or privacy. But the Framers left behind the English monarchy because it violated individual rights. There is also the somewhat belated 14th Amendment. It states that “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
So, clearly, the unenumerated rights mentioned in the Ninth Amendment can very reasonably be said to include the right to liberty and/or privacy. Such a right is a very broad one, of course, and our public officials, including many judges and justices, are hesitant about admitting that it is one of our operational constitutional rights. For if they do admit this, it would bring to a screeching halt the bulk of meddlesome government regulations which these officials depend on for their jobs.
But that doesn’t matter. What is relevant is that if we consider the matter reasonably -- by reference to the meaning of the terms involved (which is how the Framers signaled their intentions) -- then the US Constitution was devised in part to make sure that rights not enumerated in it would also be protected, and that one of those rights surely must be the right to liberty or privacy.
What is so upsetting to so many people is that a principled approach to American politics will not make it possible for them to fight just for those liberties they prefer, leaving the liberties they dislike abridged by government. And so they try against all reason to squeeze out of the Constitution a system of government that favors their own liberties as well as the limits they wish to place on other people’s liberties.
In fact, however, an honest reading of that document -- given its political legacy of the Declaration of Independence and its internal integrity -- makes this exercise a futile one.