Saturday, July 30, 2005

It's my life and I'll do what I want...

Marc Perkel is an eccentric, and a really smart guy, He writes something that, as an amateur amicus curiae I find quite interesting:

Is a right to privacy in the United States Constitution? Yes it is - but not where you think it is. A lot of people are looking into the amendments to the Constitution for something that can be construed as privacy. Others say that it's just not there. But it is there and it's right in the original constitution.

Article 1, Section 8, Clause 7:

To establish Post Offices and post Roads;

In listing the powers that the United States should have to serve the needs of the people Article 1, Section 18 lists 18 things. Post offices is one of them. It is in the Constitution that mail is important.

So - what does this have to do with privacy you might ask? To address that we first have to ask ourselves 2 questions. What is mail in the context of 18th century technology - and - why is it so important to make it into the constitution?

In 1776 there were no telephones, no television, no email. The only form of long distance communication that existed at the time was mail. And mail by definition was understood to be PRIVATE. In that era with the technology at the time the word "mail" meant long distance private communication. And long distance private communication was so important that the founding fathers put it into the Constitution.

The privacy aspect of mail is established in federal law.

Read the rest, it's persuasive.

In re: Rowe, I'm still not quite sure that Privacy is the peg to hang this on. I have actually read the Constitution, and I agree, the word privacy is not mentioned.

But neither is flag burning.

Or internet.

Or sub-machine gun.

Or abortion.

The 9th Amendment says this:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

FindLaw says this about the 9th Amendment:

The Ninth Amendment had been mentioned infrequently in decisions of the Supreme Court 4 until it became the subject of some exegesis by several of the Justices in Griswold v. Connecticut. 5 There a statute prohibiting use of contraceptives was voided as an infringement of the right of marital privacy. Justice Douglas, writing the opinion of the Court, asserted that the ''specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.'' 6 Thus, while privacy is nowhere mentioned, it is one of the values served and protected by the First Amendment, through its protection of associational rights, and by the Third, the Fourth, and the Fifth Amendments as well. The Justice recurred to the text of the Ninth Amendment, apparently to support the thought that these penumbral rights are protected by one Amendment or a complex of Amendments despite the absence of a specific reference. Justice Goldberg, concurring, devoted several pages to the Amendment.

In my naivete, I ask myself, can the Government prove that IT has the right to rule against my, or your, body? Rather than force me (were I a woman) to defend my right to privacy, I would ask Alberto Gonzales to defend his right to control me.

I'm just sayin'.