Friday, July 20, 2018
What Flows Legally And Logically From Privacy As A Necessary Condition Of Liberty
(This note doesn’t deal with the question of when protected life begins, which is a profound and fundamental question in this whole debate, but only with the criticisms of Roe that 1. it’s a poorly reasoned decision; and 2. one big reason for that is the U.S. Constitution has no provision for a right of privacy since the word is nowhere there mentioned.)
My argument is that if privacy is a necessary condition of liberty then,
1. The U.S. Constitution protects it as a right;
2. What Americans do in their zones of privacy—i.e. within their own spheres not affecting anyone else—short of harm is protected by the U.S. Constitution;
3. and that, therefore, on these bases, Roe v Wade is rightly decided.
That is confirmed by at least the 9th Amendment—....The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people....—
the10th Amendment—....The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people....
—and Section 1 of the 14th Amendment:
..... All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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....
referring more specially to:
1. no law...shall abridge the privileges or immunities of citizens...and
2. ...nor shall any state deprive any person of life, liberty and property, without due process of law....
To nearly end where I begin, in this last part of 14(1) of the Constitution “liberty” is specifically mentioned. So if privacy is a necessary condition of liberty—how could it not be?—then by necessary implication there’s a constitutionally protected right of privacy.
And two final points:
When Justice Douglas speaks of penumbras and emanations in Griswold v Connecticut, privacy as entailed by liberty is surely one correct example.
I think I finally understand what substantive due process means: life, liberty or property can’t be taken away by an irrational law: just as there must be procedural due process, how can there not be substantive due process: justice must reside in the substance as well as in the forms of the law.