Monday, June 30, 2003

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.

It's as if it were their own money

Freedom News Service

When the House of Representatives voted recently to eliminate the federal estate tax (something the Senate probably will not support), liberal Democrats reportedly objected that "it was immoral to add to the nation’s record-setting debt to benefit those at the economic pinnacle" (The New York Times, 6/19/03).
Such objections reveal just what those offering them think about the wealth of this nation – that it belongs to the government which then decides who is to benefit from it, and who is not. As if eliminating a tax amounted to giving something to people, providing them with a benefit, instead of stopping taking things from them that belongs to them in the first place.
Relatives to whom a business or some other source of wealth had been left by now deceased persons are forced to pay estate taxes. The wealth had been left to these relatives, but in order for the relatives to receive what they were given they must first pay a huge sum to the government. This is extortion, plain and simple – "You’ll get what someone else freely gave you provided you first pay us not to send you to jail or fine you." That is how the mob behaves – "You get to run your business provided you pay us not to burn it down."
Liberal Democrats think, however, that the wealth never belonged to those who left it to their relatives but belonged to the government that permitted it to be held and used by the bequeathors. So, the issues for liberal Democrats is, should the government continue to permit the wealth to be held and used by the relatives provided they pay some kind of fee or rent.
That is exactly the thinking behind what monarchs did when they sold everyone on the idea that a country belonged to them and those working there were their serfs, with the products these "serfs" created belonging to the monarch as well. So, a quarter of millennia after the American founders dispatched monarchy, the system is back again, along with its economy of mercantilism. Liberal Democrats, as well as those to their left, really believe that government owns us and our work and we only get to keep some of this if the government deems that suitable to its purposes.
Unfortunately, while liberal Democrats are avid supporters of such mercantilism, Republicans aren’t quite opposed to it either. After all, when it comes to their own various pet projects, Republicans are not above treating our assets and incomes as their own disposable wealth. Just look at the perks Republicans attach to various bills they believe will pass, sending these to their constituents in the full spirit of wealth redistribution. Thus when they do not quite like the degree of extortion liberal Democrats favor, they have no moral arguments to offer against it. Thus we get Speaker Dennis Hastert intone with this kind of muddled thinking in response to the liberal democrats’ opposition to eliminating the estate tax: "This isn’t just for rich people, this is for everybody who shares in the American dream. ... We need to pass this piece of legislation, so we can keep this American heritage of families working, of families creating wealth, of families creating businesses."
Never mind about the rights of those relatives to receive what they were given free and clear by the deceased. Never mind the immorality of taking anything at all from them as booty. Never mind that what the government confiscates is loot and doesn’t belong to it. Why? Because saying such things would cut the Republicans off the booty, too.
So, instead we get the old line of defense of free trade and free enterprise and freedom in general, namely that such freedom is good for the country, not that everyone has a right to it. Because saying so would concede that it is these individuals who have the first right to say what happens to their wealth, not the politicians.
In other words, Republicans do not want to acknowledge any more than liberal Democrats that American citizens have a right to their assets and products. They only claim that it would be more efficient to leave them to hold and manage those assets and products on behalf of the country.
Ayn Rand, the most passionate defender of the free society in recent times, noted that when you compromise on the principle of liberty, you eventually have to cave in to the demands of those who do not believe in liberty. You have no principled defense of your position and so it continues being eroded, slowly but surely.
That is just what the Republicans are showing us when they give wimpy objections to the liberal Democrats who would just as soon confiscate everyone’s wealth if they could and manage the country according to their own personal vision, never mind the diverse yet often perfectly valid visions of the individuals who own that wealth in the first place.

Tibor Machan is a professor of business ethics and Western Civilization at Chapman University in Orange, Calif., and author of "The Passion for Liberty" (Rowman & Littlefield). He advises Freedom Communications, parent company of this newspaper. E-mail him at
Frank Rich's view of Americans

Freedom News Service

One of this country’s most prominent newspaper columnists is Frank Rich of The New York Times. While the Times has taken a few hits on its reputation recently, Rich is not among those who endured criticism. Rich is not directly associated with the Times' recent controversy because he writes columns. And Times’ columnists are often treated as public philosophers par excellence.
In his June 8 column, in the Arts & Leisure section, Rich began with the following: "Here is how desperate Americans are to be on TV ..." He goes on to note that many people line up on various locations across the country where they expect television cameras to get a glimpse of them. The 15 (or fewer) minutes of fame syndrome is, of course, old hat now, but never mind that for the moment. Columnists, including yours truly, do not shy from repeating themselves – it was George Orwell who is reported to have said, "The first duty of intelligent men is the restatement of the obvious."
What is remarkable about Rich’s statement is how unself-consciously it assumes that what characterizes some publicity-hungry folks across America is, actually, characteristic of Americans as such. He does not say "Here’s how desperate some Americans are to be on TV." No, it is Americans who are desperate to be on TV.
Well, I have to admit that now and then I like being on TV – mostly if I have something of value to say, as I did when John Stossel was kind enough to have me on one of his special programs on ABC and when back in 1982 I had the privilege of being on William F. Buckley Jr.’s "Firing Line" on PBS. But would I wait four hours to have a camera get a glimpse of me standing outside some studio? No, I wouldn’t, nor would, I seriously suspect, millions of my fellow Americans. It takes desperation, indeed, to go to such lengths for so little.
Rich, however, uses the mere existence of a few thousand Americans eager to be on TV to jump to the conclusion – or carelessly suggestion – that it is Americans, all of them, who are desperate to be on TV. Why would a columnist from The New York Times allow himself to say such an evidently silly thing?
I do not read minds, but one can make inferences about people’s general thinking from reading and listening to what they say in various circumstances. My suggestion is that Rich has a very low opinion of Americans as Americans. In short, he doesn’t much like Americans just in their role of being Americans. This shows from his willingness to think such silly things about them all, even while it is clear that only a small fraction of them seem to be silly as he claims all are (which isn’t all that bad a thing, in any case). It is this bad opinion of Americans as Americans – that is, as citizens of the United States – that would allow him to throw elementary caution and logic to the winds and make an assertion smearing them all with the silliness that is true at most of a fraction of them.
Now people often generalize on the basis of a little bit of evidence, but this makes sense only when the little bit of evidence is representative. So, if one goes to Italy and finds that the several dozens of Italians one meets all speak Italian, it is safe to conclude that in that land Italian is spoken even without having met everyone there.
Rich, however, had no such representative sample at his disposal, quite the opposite. He was considering only people who could perhaps be said to be desperate for some kind of minor fame (And, actually, what is so terrible about that? Taken individually, most of us spend much time on stuff others consider utterly silly.). And on that basis he was willing to leap to the view that it is Americans who are desperate to be on TV.
So, what of it? Well, it goes to show – or at least to suggest – that one of the nation's most prominent columnists has it in for Americans. His willingness to think badly of them is evidence of that. Which is sad. Maybe it’s time for The New York Times to select a columnist who isn't so hostile to his own country.

Tibor Machan is a professor of business ethics and Western Civilization at Chapman University in Orange, Calif., and author of "The Passion for Liberty" (Rowman & Littlefield). He advises Freedom Communications, parent company of this newspaper. E-mail him at