"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
-- Ninth Amendment, U.S. Constitution
For the sake of liberty, please read and contemplate the Ninth Amendment to the United States Constitution. The Founders were speaking to us. They were saying they hadn't thought of everything, that they were, indeed, fallible. They were asking us to expand our rights when we see fit. Paying attention to what they said here is true strict construction. It is our salvation against imperious government. And yet, it has never been cited as the basis for a majority ruling in a Supreme Court decision. It is time to ground the right to privacy in the Ninth Amendment, as Justice Arthur Goldberg wrote in Griswold v. Connecticut.
I've been thinking about this, too, whenever conservatives who say they are for less government start foaming at the mouth with rage when anyone dares raise the spectre of the Right to Privacy.
If the founders initially hesitated putting a Bill of Rights in the Constitution in the fear that it would imply that any rights not specifically enumerated could be restricted, and if the burden to demonstrate what government intrusion into our private lives lies with the government and not with the individual, then why would the Right to Privacy need to be specifically enumerated?
Well, it doesn't. As Crawford alerts us, the 9th Amendment specifically says, in all its strict constructivist glory, that just because a right hasn't been identified by name doesn't mean the government can trample all over it.
The Right to Privacy has been pushed to the back of the room for far too long. Time it was brought out for everyone to see and debate.
Yes, conservatives will argue that (a) the Constitution doesn't specifically declare a Right to Privacy; and if failing that, bellyache that (b) like any other right, the Right to Privacy isn't absolute; or (b) that the Right to Privacy is hard to define.
But this is a case where simplicity is on the side of liberals. And it's an ABSOLUTE kind of thing that conservatives keep telling us they like so much and wish the rest of society did, too. Get conservatives and their candidates on record as supporting or opposing the Right to Privacy. I'd like to see them sweat as they suddenly try to discover and claim the notions of nuance, ambivalence, and, oh my, relativism.