Posted: 19 June 2008 at 9:12am | IP Logged | 9
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Marc:
You caught me for not having the exact wording of the first amendment memorized. But it does not change my point and by your post you help make my point. Interpretation of enumerated rights is one thing. It is an analysis of what the law means. For example: Freedom of Speech includes expression. Freedom of expression is not created from the overarching shadow of various amendments.
Creation of a constitutional right not found in the constitution is significantly different from the interpretation of an enumerated right. The right of privacy found in the Griswold case was created by stitching together other enumerated rights. "Pneumbra" means shadow -- the shadow cast by the guaranteed rights creates the right of privacy (although the Court has moved away from this analysis in the years since the Griswold/Roe Courts). The Court itself by noting that a right of privacy existed from a Pneumbra of rights did not run away from the fact that the right, as the basis for the Court's holdings in both Griswold and Roe is a "legal fiction."
The 9th amendment, refered to somewhat derisively by Robert Bork as an "inkblot" provides that: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Accordingly, the right of privacy is not guaranteed by the amendment. Instead the amendment acts to protect those rights that are not expressed. Including rights, like the right of privacy, that are created by judicial fiat. As Justice Douglas noted in Roe's companion case Doe v. Bolton, the ninth amendment does NOT create federally enforcable rights. The amendment is intended to ensure that simply because rights are not enumerated they are not also protected. But it does not make those rights a constitutional right.
So yes there is a right to privacy, but a constitutional right to privacy is a legal fiction.
Edited by Geoff Gibson on 19 June 2008 at 9:15am
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