Those pesky unenumerated rights

Over at Sharp as a Marble, Robb ended yesterday’s post about everybody’s favorite wild Congressman with a comment that bothered me a bit.

Of course Congressman Etheridge sees a right to “know who you are”. Today, rights are pulled out of thin air as it is (see rights for healthcare, privacy, abortion, ‘living wages’, etc). It’s the progressive way!

Most of that I agree with, but I keep seeing the “there’s no right to privacy” argument made with distressing frequency, and I have to disagree with that one.

One of the most common arguments against a right to privacy is that “it’s not in the Constitution.” That is easily countered simply by pointing out the Ninth Amendment.

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

U.S. Constitution, Amendment IX

Essentially, just because it’s not in the Constitution doesn’t mean it’s not a right. It’s as simple as that.

Privacy is an essential component of liberty. You cannot be truly free if some government entity is looking over your shoulder at will. The Right to privacy is the underlying principle behind the Fourth Amendment’s protection against unreasonable searches and seizures – it guarantees that the government must have reason to believe you are involved in a crime before it can violate your expectation to privacy in your home, person, and effects.

A Right cannot require a person to do something, only to refrain from doing something. This is why health care is not a right – it requires doctors, nurses, etc., to perform a service for free or at a reduced cost.

On the other hand, a Right can require the government to do something. The reason you have a Right to an attorney in a criminal prosecution is because the government is acting against you to take away your freedoms. To protect you against an abusive government, you are guaranteed the ability to have someone trained in the legal system there to represent your interests. If you cannot afford to pay an attorney, the government must pay one on your behalf.

The Right to privacy imposes no obligation on any individual to do anything except leave you alone. It imposes on government the obligation to show that it has reason to believe you have broken a law before it can violate that Right, and, if challenged, it must show the same justification for the law that it must show in respect to any of the enumerated Rights.

Which is as it should be.

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