The Right to ?...

Ed from Dispatches at the Culture Wars posts on Gay Marriage and comments on the aspect of criticism that conservatives have on the court inventing rights. In another post he links to another blog post titled The Right to Privacy and the Ninth Amendment by Kyle. Ed states,

The issue at question is one of law… and in court the arguments made are legal ones. The comparison I am making is between the legal arguments and the reactions to the rulings in these two issues, not between the two types of marriage specifically. Let's look at the legal arguments being made about gay marriage and compare them to the legal arguments made in response to the ruling in Loving v Virginia, the 1967 case that struck down laws banning interracial marriages. …in both cases, the reaction from conservative legal scholars, legislators and activists has been identical. Let's examine those arguments:… The court is inventing a "new right" that wasn't there before This is an argument that is often heard from conservatives on a wide range of legal decisions. They argue that since the constitution doesn't enumerate a specific right, courts are wrong to apply broader concepts like a right to privacy to specific areas not explicitly mentioned in the text. This argument has been made against Griswold v Connecticutt [sic] ("there is no right to buy contraception mentioned in the constitution")… Well guess what? They're right. None of those things are mentioned in the constitution specifically. But that's where the 9th amendment comes in, the one that Bork and his ilk want to pretend is just an "inkblot" on the constitution.

Kyle states,

The fact that many of the rights we as Americans enjoy are not expressly mentioned within the Constitution is a well-known and indisputable fact. One source lists thirteen basic rights that we all take for granted, but are not discussed in the Constitution. Those are: "(1) The right to retain American citizenship, despite even criminal activities, until explicitly and voluntarily renouncing it (Afroyim v. Rusk, 1967);… (7) The right to enjoy a zone of privacy (Griswold v. Connecticut, 1965);… I'm sure you all noticed the seventh right in this list, guaranteeing us as citizens protection from invasions of our privacy by both the government and private individuals… Surely this is a right that even the most conservative constructionist can square with his beliefs, except for the small problem of the word "privacy" not being expressly mentioned in the Constitution. No matter for the Courts, however. Different courts have construed a right to privacy from some of the various amendment. Some judges have found an implied right of privacy in the First Amendment's right of freedom of association. The logic behind this is that the government has no right constrict or regulate our private relationships and interactions and hence cannot enter into other spheres of our private lives. …So we've gone through the arguments for an implied right of privacy, backed by the First, Third, Fourth, and Fifth Amendments of the Constitution. And it all sounds pretty good. Hmm . . . nowhere yet, however, have we crossed the word "privacy" in the text of that hallowed document. Surely this is a problem for a strict constructionist, isn't it? Well, the answer is (or it should be) "no." Embracing a constitutional right to privacy does not require a person to drop his constitutional views. Why, you ask? Because the Founders already took care of the situation with a handy little thing called the Ninth Amendment. …The Ninth Amendment reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In other words, the Founders are saying, "Just because we didn't list a certain right doesn't mean the people don't have that right." The right to privacy is one of these constitutionally protected rights. …Some may have doubts of whether or not the Founders intended to allow for a right to privacy. After all, they did not explicitly grant it. While original intent is a Pandora's Box that is really not worth bothering with, because a) times change, b) the Founders set up a system that allowed for the evolution of legal interpretation through the Ninth and Tenth Amendments, and c) the Founders were such a broad, diverse, and compromising group it's impossible to determine what their "intent" on any single issue was in any manner even approaching precision, I would venture to file that they would support the right to privacy. (emphasis added)

There are at least two things that should be addressed here: 1) The inherent difference between enumerated rights in the Constitution and all other rights, and 2) the double-speak regarding author’s intentions and how to interpret the meaning of a text. The examples listed of rights we enjoy, but which have not been enumerated in the Constitution, do not reveal valid rights inasmuch as they reveal the rulings of judges. They remain and will always remain the opinions of the court. One wonders what outcry would arise were a court to rule that young mothers have the right to torture their children in the privacy of their own home? Yet how far removed from that scenario was the dreaded whip of a slave owner in 1850 splitting open the back of one of his slave’s? Rulings are fallible – inalienable rights are not. What happens when this right to privacy is attached to the act of abortion? A new “right” suddenly emerges, popping into existence at the judge’s bidding – the so-called Woman’s Right to Choose (to end the life of her unborn child). This is possible because, as Kyle stated, “times change” and it is “impossible” to determine, with precision, what the Founder’s intent was on any single issue. Of course, he doesn’t seem to have a problem determining that “the Founders set up a system that allowed for the evolution of legal interpretation through the Ninth and Tenth Amendments.” This leads into the sloppy interpretive skills within analyses such as those of Ed and Kyle. With regards to specific issues we are told that it is impossible to know the intent of the framer’s of the Constitution. It appears that he attempts to get around this self-imposed hurdle by referring to an implied intent that the courts have found or construed. But this just raises another hurdle for only the author of the text can imply intentions within his text. Either the intent is there or it is not. So, what is it going to be? On the one hand, the courts construe or find implied rights within the Constitution, while on the other hand they adhere to a mentality that there is an “evolution of legal interpretation” based on the changing times. The result is that they end up actually creating of the meaning of the text. The meaning then, comes not from the author nor even from the text – but from the reader! Like it or not, the Constitution is not living – it is static. It says what it says and no amount of legalistic gyrations can make it say anything more or anything less. Update: Check Breakpoint's commentaries for Feb. 16 and Feb. 17 for topics related to this post.