As most of you probably already know (breaking news was never my bag), John Roberts’s record on the “Right to Privacy” is pretty fucking clear: He doesn’t believe it exists in the Constitution. (And, subsequently, doesn’t believe it exists, period.)

Excerpted from Washington

The 67-page statement to the Senate Judiciary Committee is the first time that Roberts, now on the U.S. Court of Appeals for the District of Columbia Circuit, has commented substantively since Bush nominated him July 19. The White House did not previously disclose Cheney’s role in questioning Roberts more than two months before he met Bush…

(excerpt continued below)

Continued from Washington

… Separately, new documents released by the National Archives from Roberts’s tenure as a senior adviser to the attorney general during the Reagan administration make clear that he was deeply skeptical of the court’s recognition of a citizen’s fundamental “right to privacy” — the legal concept that underpinned its historic 1973 decision upholding a right to abortion.

Although the documents do not spell out Roberts’s personal views on abortion, they add to previously released documents suggesting that he had more in common with those who dissented from the court’s reliance on “fundamental rights” than he did with the rulings of its majority.

Roberts wrote in his statement to the committee that the proper exercise of the judicial role “in our constitutional system requires a degree of institutional and personal modesty and humility” and said it is “not part of the judicial function to make the law.”

Look, I’m no Constitutional scholar – I’m not even a frigging attorney. So let me speak in the most eloquent layman’s terms I can summon with respect to the so-called “right to privacy:”

As far as I am aware, the 9th Amendment to the Constitution of the United States of America specifically states that the fact of a “right” not being spelled out in the Constitution or the Bill of Rights or subsequent Amendments to said Constitution does not negate that right’s existence.

In fact, let me drag out what Google told me, at Findlaw:

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


Rights Retained by the People

Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those.

Madison adverted to this argument in presenting his proposed amendments to the House of Representatives.

”It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.

This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”

It is clear from its text and from Madison’s statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.

Recently, however, the Amendment has been construed to be positive affirmation of the existence of rights which are not enumerated but which are nonetheless protected by other provisions.”

I don’t know about YOU, but when I read that, it seems pretty clear that the idea is to enumerate those rights which seem to need spelling out, and assume there are a lot more human rights that (possibly) don’t need spelling out.

Like, say, the right to privacy. I guess it depends on how one defines “privacy,” eh? Let’s see what a keener mind than mine – in this case, Harry Browne, the one-time Libertarian candidate for the Presidency of the United States of America (yeah, yeah, I know, but bear with me) — has concluded about “privacy” and whether you can find the Right to it in the U.S. Constitution, it’s Bill of Rights or in its subsequent Amendments:

The ninth and tenth amendments were included to make absolutely sure there was no misunderstanding about the limited powers the Constitution grants to the federal government.

Amendment IX:

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

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Now, where’s the right to privacy?

It is clearly in those two amendments. (emphasis added)

The government has no power to tell people what to do except in areas specifically authorized in the Constitution.

That means it has no right to tell people whether or not they can engage in homosexual acts; no right to invade our privacy; no right to manage our health-care system; no right to tell us what a marriage is; no right to run our lives; no right to do anything that wasn’t specifically authorized in the Constitution.

(Notice also that nowhere in the Constitution does it say that government may violate the Bill of Rights if the target of its wrath is a non-citizen. Government isn’t authorized to jail non-citizens indefinitely or deny them due process of law. There’s a good reason for that, but that’s another subject.)

Now, Mr. Browne goes on in that same document to advocate for eliminating public schools and repealing the income tax; obviously we disagree in more than a few other areas. But disagreement in some areas does not preclude agreement in others – and I think Harry frigging Browne hits the proverbial nail on the head with this incredibly succinct opinion as to the implicit existence of an individual’s right to privacy in the Constitution – specifically, in the Bill of Rights.

With the exception of the 18th Amendment (Prohibition, wisely repealed later), the Constitution has heretofore only been amended to ENUMERATE the rights of man… so to speak. (One could argue that, indeed, it does exactly that, excepting the 19th Amendment, granting women a right of their own. Nice of them…)

But I digress. It seems to me perfectly clear from the Madison quote alone that The Constitution and its Amendments exist for two reasons:

• First, to specifically limit the powers of the Federal Government over individuals and groups.

• Second, to specifically enumerate individual and group rights where there has grown some question as to whether those rights, in fact, exist at all.

I’m up against some pretty impressive intellects in this argument, I admit. He may be a prick, but Supreme Court Justice Antonin Scalia is no lightweight in the brains department. He and John Roberts both disagree with me. (So does Clarence Thomas, but, all disrespect intended, I could kick Clarence Thomas’s intellectual ASS all over this continent — without benefit of having attended a single law school lecture.)

On the other hand, I don’t believe for one minute in deferring, on mere principle, to people whose intellectual capacity (or educational heights attained) may exceed my own. Like anyone with a modicum of humility, I am often overawed by these people, perhaps even too easily persuaded by them. I recall, vividly, watching Scalia, O’Connor and Kennedy being interviewed in a panel by Tim “Dick” Russert – and actually beginning to think, “Hmm, perhaps Justice Scalia has a POINT about strict constructionism.” Thankfully, Justices O’Connor and Kennedy were there to wake me from the delusional reverie into which Scalia’s dulcet tones had lulled me…

Where the hell was I?


What the FUCK is that supposed to MEAN, anyway? I know I’m not saying anything new here: at exactly which point in the “construction” of the Constitution are we supposed to have stopped adding Amendments? Pre- or post-slavery? Votes for women? How about the Bill of Rights? I believe Miranda is based on the 5th Amendment…

It’s utter horseshit, this “Strict Constructionism.” Frankly, it has the putrid stench of racism, sexism and oligarchy wafting from it like rotting garbage in the noonday sun.

So, no, Justice Scalia and Judge Roberts, I do NOT accept your view as regards the Right to Privacy. Although it seems to me that, given the ludicrous amount of time and energy spent on this seemingly OBVIOUS human right, it’s about goddamned time for a REAL Constitutional Amendment GRANTING it specifically, so you duplicitous, mendacious, equivocating FUCKS can finally stop arguing about it and get on with your REAL jobs.

Which leads me to the initial contention of this screed: if there is a single fucking Democratic Senator who refuses to filibuster the nomination of this judicial HACK, who refuses to stop the ascension to the highest court in the land of a man whose explicit statements make it obvious he is not only a “strict constructionist” but stupid as well… That Senator should be taken out back of the Senate and summarily shot with water pistols until he or she acquiesces.

I know I tend to ramble… but surely that last bit is Crystal Fucking Clear?

FILIBUSTER ROBERTS. No dissent from this essential Democratic principle shall be brooked, no quarter given to Democratic traitors to the most basic and revolutionary concept ever to cross a human being’s mind: that each and every individual human being has the right to privacy insofar as he does not infringe on any other individual’s rights.

P E R I O D .

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