As with any of us, sometimes in our writing we fail to put down what we assume everyone knows. Sometimes, too, in our writing we also suffer form a degree of vanity; we assume that our prose is so precise that the meaning we have in our head has managed to be perfectly expressed on the paper. I think this may be a good argument for certain omissions of key words and phrases in the Constitution, such as privacy.
This argument is an effective counter to Jeff Jacoby's (a Boston Globe columnist) recent
piece where he throws out the standard "Orginalists" line of defense on the subject of privacy. He and the other oringinalists believe that only the exact words and phrases in the Constitution may be used for interpretation. As such, the word privacy never is mentioned and therefore there can be no right to privacy. Curiously the originalists also are of the belief that constitutional interpretation should center on finding and upholding the original intent of the Constitution. I think this line of analysis is bogus and defies what the Constitution has been praised for since its inception, the "living" quality of its words. I think the justices in the seminal privacy case,
Griswold v. Connecticut, properly analyzed the document from a legal and constitutional standpoint.
However I do not think the technical analysis of a Supreme Court decision is needed to support the idea that one of our Constitution's very purposes is defend privacy at nearly all costs. I am sure we are all aware of the country's history pre-1776. The Stamp Tax. Mandatory quartering of soldiers. Jurists and juries culled from a foreign occupier. Governors and often legislatures not of neighbors but of royal appointment. The people populating New England pre-1776 were nearly all-direct descendents of forced religion and religious persecution.
Why are these historical anecdotes of significance in constitutional interpretation? One can hardly imagine that the men and women who struggled through such oppressive government entanglement, who risked everything to throw off the oppressive yoke of tyranny, while still in the glory of their victory, would create a document by which their long fought struggle for freedom would ultimately fail to secure the privacy upon which liberty is necessary.
The Third Amendment forbids the quartering of soldiers. Is it an unreasonable interpretation to say that the amendment stands for the notion that the government has no place messing with the make up of our homes? The First Amendment guarantees my freedom to say what I wish, so long as I stay in the very wide parameters created by the Supreme Court. Is it an unreasonable interpretation to say that the amendment stands for the notion that the government cannot tell us what thoughts to have and that our thoughts are therefore private? The Fourth Amendment protects our persons and our homes from unnecessary searches and seizures. Only under exigent circumstances may our homes be searched without a warrant. Is it an unreasonable interpretation to say that the amendment stands for the idea that our homes and persons are sacred and that what we do in and with them is mostly our business; that the shroud of privacy that covers them from the world is also the shield that should protect them from the government?
Only a fool blind to history, blind to the struggle that birthed the Constitution, blind to the men that penned the Constitution, would tell you that we have no right to privacy. To those who do not see that right I ask, if we are without protected privacy, how have we secured the life, liberty, and pursuit of happiness promised to us when we supported our declaration of independence?
Cross posted at Mass Revolution Now!