Constitution and a Right to Privacy

At 1:22 PM -0600 2/17/97, snow wrote:
>Mr. May wrote:
>> Some legal scholars are claiming that there is no provision in the
>> Constitution guaranteeing anonymity of purchases, and, indeed, a growing
>> number of purchases can no longer be anonymous--guns, explosives, chemicals
>> of various sorts, etc. How long before _all_ transactions must be recorded,
>> True Names revealed, etc.?
>
>	This is where I often get a little confused.
>
>	Correct me if I am wrong, but it was my understanding that the
>constitutuion was _not_ a document that explicitly spelled out what writes
>_I_ had, but rather spelled out fairly precisely what the _government_ was
>allowed to do.
>
>	In otherwords, the Constitution does not restrict _me_ rather it
>restricts the _feds_ (and the Feds alone).
>
>	My rights are WHATEVER ISN'T IN THE CONSTITUTION, and the government
>can only, ONLY do what the constitution says it can.
>
>	???

But why do you not object that the "right to free speech," "the right to
keep and bear arms," and so on, are specifically enumeratedin the Bill of
Rights? The privacy issue is that there is no such enumeration of a right
to privacy in the Bill of Rights, though many think it to be implicit in
some of the other enumerated rights, e.g,, the Fourth, and even in the
First.

Constitutional issues are not easily discussed in short messages like this.
Suffice it to say the issue of whether a "right to privacy" exists has been
long discussed, most recently by Bork, Posner, and others (I skimmed the
latest Posner book a while back, and liked his style).

The issue hit when abortion advocates argued that a "woman's right to
privacy" allowed abortions. However, none of the enumerated rights made
this obvious. Bork has opined that no right to privacy can be inferred from
the Constitution.

(And I always thought the "woman's right to privacy" argument for abortion
was flaky. Accepting such an argument, wouldn't infanticide be equally
protected by a woman's right to privacy?)

--Tim May



Just say "No" to "Big Brother Inside"
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>(And I always thought the "woman's right to privacy" argument for abortion
>was flaky. Accepting such an argument, wouldn't infanticide be equally
>protected by a woman's right to privacy?)
>
>--Tim May

	Whoa! This begs a thoughful response, but I don't have time right
now.  Might it suffice to suggest that a privacy claim -- a demand for
control over what concerns her, her alone, or (on balance) her more than
any other -- seems reasonable to extend to both contraception and early
abortion?  For many of us, by the same logic, and with the same moral
comfort.

	(As the clock slips onward, and the potential viability of the
fetus becomes more likely or certain, I personally believe the woman no
longer exists alone, and the privacy argument becomes conflicted and more
tenuous.   But Tim's golem, Infanticide, is a creature of nightmare --
wholly beyond the pale!)

	To my mind, any attempt to control what is done to the woman's body
(by her choice) while the prospective child is but a bit of enhanced
potential, much much less than a viable child, is an unconstitutional and
morally-invalid attempt by others (the state, the church, the country club)
to pre-empt her will, and prescribe or dictate a wholly new value system
for her.

	Any claim (by the father, the state, the church, etc.) to control
what happens in the moments or days after conception (say, forbidding
RU-whatever, the French drug,) has no more moral authority than any similar
claim to Higher Authority -- to safeguard the potential within her --
which is used to forbid his or her the use of a contraceptive, or which
requires him or her to take a drug which makes multiple pregnancies more
likely.

	I always thought the Jesuits had the logical argument straight.  If
the woman has no inherent right to control her destiny in the languid
aftermath of intercourse (just because she has within herself the potential
of a new life) then she has no claim to self-possession which allows her to
use a contraceptive just before intercourse.  If it is the potential for
new life that allows external authorities to overwhelm her judgment and
violate her privacy, then the case for that Papal Judgement exists before,
during, and after sex.

	Problem is: while logical, the Catholic argument seems silly,
authoritarian, and hopelessly abstract in the face of what many of us
experience as a less dogmatic and vastly more human context. A context in
which the right to privacy or self-possession seems inherent in the people
we are, the people we know, the world as we live it.  (Jesuits have a
certain disadvantage, from this POV;-)

	The fact that this claim of privacy or self-possession apparently
has an echo in the US Constitution (that oh, so-prescient document!) -- and
in the libertarian/liberal proclamations of numerous other nation states --
is a validation, a confirmation... but the Right of privacy, the Claim, is
inherent in our sense of who we are, and our sense of what an individual
is.

	If the philosophers had not considered it in their musings, we
would have to fight harder; we would need to define it as well as defend it
-- but it can only be denied if we denied ourselves, as the serfs of the
Dark Ages were expected to... and did.

	Women as vessels.  Men as vassals.

	Suerte,
		_Vin

         Vin McLellan + The Privacy Guild + <vin@shore.net>
      53 Nichols St., Chelsea, MA 02150 USA <617> 884-5548