Left and Right talking past each other on 'right to privacy'

WorldNetDaily: Does Constitution include 'right to privacy'?:

"'Can you guess who made the following statement: 'The Constitution does not explicitly mention any right of privacy.' Who said that?,' Kupelian asks.

"'Was it the National Right to Life, or some other pro-life group? No, it was Supreme Court Justice Harry Blackmun, in his Roe vs. Wade majority opinion, in which he admitted that the U.S. Constitution, which the court swore to uphold, contains no so-called 'right to privacy.''"

Although it pales in importance compared to the tens of millions of children murdered under Roe v. Wade, Doe v. Bolton, and subsequent abortion litigation, the ongoing debate over the right to life has had the unfortunate effect of making the conservative, pro-life side of the debate the enemies of privacy.

This is not a minor problem. And it is not a necessary consequence of the legal reasoning (if such it can be called) of Griswold v. Connecticut in which the world first learned of "emanations from a penumbra" - an particularly ill-chosen phrase since a penumbra is a shadow and shadows do not produce emanations.

The mistake lies in reading the Constitution in a positivist manner. By that I mean, in this context, that one can only assert a right to privacy if the Constitution contains such a right. But the Constitution is intended to be read negatively. That is, it permits certain things to be done by the general government (e.g., regulate interstate and foreign commerce), forbids a few things to be done by the states (e.g., conduct an independent foreign policy), and leaves the rest of life's concerns to the people who may or may not, in their wisdom, assign some of those responsibilities to their respective states. Thus, you don't need to find an explicit right to privacy, merely the lack of a specific grant of regulatory power to intrude on that privacy.

The Bill of Rights is, in fact, largely a recitation of privacy rights.

Amendment I - Forbids the Congress to create a national religious establishment or interfere with religious expression, either of which would intrude on the private liberty of conscence of citizens.

Amendment II - Forbids interference with the right of citizens to act in defense of themselves and their property by their own private means.

Amendment III - Secures our privacy in our homes against the quartering of troops in peacetime and requires that such quartering in wartime be done according to law (and not the whim of military commanders or the executive).

Amendment IV - Secures the private enjoyment of our persons, houses, papers and effects against "unreasonable" searches.

Amendment V - Secures privacy by forbidding compulsory testimony by criminal defendants and further says they may not be deprived of life, liberty or property without due process. Finally, it requires just compensation for the seizure of private property for public use.

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

Connecticut may have been foolish to control contraceptive practices, but I don't see anything in the US Constitution that says the state lacked that power. Thus Griswold should never have been heard in the federal courts.

The reasoning of Roe and Doe, which were allegedly decided on the precedent of Griswold, fails in two ways. If, as abortion proponents have often said, the termination of a pregnancy is simply a matter between a woman and her doctor, then there was no federal cause of action because the national government has no Constitutional authority to regulate the practice of medicine. On the other hand, if this is a question about rights, it must be about the right to life which is recognized in the Constitution - but this would lead to a pro-life conclusion.

What we are left with is the idea that the unborn child is not a person invested with rights and thus must be merely property which may be disposed of at the whim of the owner (the mother only, as even the lawfully married father has no property interest in the unborn child). Yet, once born, the child has rights including the right to be supported by its father whether he was married to the mother or not.

Conservatives historically have been the defenders of the greatest possible sphere of privacy. Restricting government power to create a private space in which individuals, families, communities, etc. can craft their own responses to life's challenges and opportunities ought to continue to be a fundamental goal of conservative politics. We should not allow the flimsy legal arguments of Griswold and its progeny to divert us from our historic mission. We can defend unborn life without abandoning our attachment to privacy.