I don’t disagree with the conclusion that this author reached, but I very much disagree with the path followed to reach it:
But in 1965, Justice William O. Douglas used penumbral reasoning in the majority opinion of Griswold v. Connecticut to declare that a right to privacy exists in the Constitution — even though it’s not written anywhere. He then used this newly discovered “right” to find that a ban on contraceptives was therefore unconstitutional. A right to privacy seems like a logical inclusion in the constitution. But rather than five justices declaring it a right, why didn’t we add it to the Constitution with an amendment?
I left the below as a comment to that post, but decided it would make a fine blog post on its own, so here it is:
The logical flaw in this column is that there absolutely ARE rights that are not specifically written into the Constitution.
The inclusion of the bill or rights in the Constitution was actually a relatively contentious issue at the time, the arguments against the first ten amendments included the possibility that enumerating certain rights would lead to infringements of any rights that were not specifically enumerated.
In fact, as part of a compromise in order to appease the side arguing against including the bill of rights on that basis, the 9th Amendment was included which specifically and clearly states it:
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”
–Amendment IX, US Constitution.
So the claim that it is illegitimate for the Supreme Court to “make up” rights that aren’t spelled out in the bill of rights is…well…illegitimate.
The right to privacy in one’s personal dealings, I think, pretty fairly falls under the purview of the 9th Amendment as one of those un-enumerated rights they were talking about.
The issue isn’t with the Supreme court validating the concept of the right to privacy, but in interpreting that right cover a woman having her unborn child murdered because it happens within the shield of doctor-patient confidentiality and privacy. That’s the “logic” that required emanations and penumbras to reach.
There absolutely, positively are rights reserved to the people that are not enumerated in the Constitution and the Constitution itself even confirms this. It is absolutely, positively correct for the Supreme Court to affirm and uphold even unenumerated rights. What is incorrect and constitutes judicial activism is twisting logic and contorting common sense to extend those unenumerated rights to things that clearly violate the rights of others…like, for example, the right of another living human being to continue living.