Bookman: Privacy right unlisted, but perfectly clear

ATLANTA — Do the American people have a right to privacy?

Absolutely we do. But how long we'll enjoy that right is very much up in the air.

For now, though, the right to privacy is destined to be debated endlessly when the U.S. Senate takes up President Bush's nomination of John Roberts to the Supreme Court.

Much of the attention over Roberts' nomination, and much of our nation's obsession with judicial nominations in general, can be traced to the controversial Roe v. Wade decision on abortion. That case was decided on grounds that we do have a constitutional right to privacy, that certain matters are too intimate and personal to allow government to intrude.

In attacking Roe v. Wade, the anti-abortion movement argues the right to privacy is a fantasy, a "non-right," as columnist Rich Lowry calls it in the conservative National Review. That non-right, Lowry claims, "is at the root of the Supreme Court's lawlessness that has allowed the justices to anoint themselves as our moral betters and strike down any legislation they find distasteful or retrograde."

As Lowry points out, there is no explicit language in the Constitution about privacy, no specific amendment in the Bill of Rights guaranteeing us the right to be left alone. In fact, the legal phrase "right to privacy" dates back only to 1965, when it emerged in a Supreme Court decision in Griswold v. Connecticut.

Under Connecticut law, it was a crime to provide married couples with contraceptives, or even to counsel married couples on how to avoid conception. The U.S. Supreme Court overturned that law, sensibly ruling that it violated a married couple's constitutional right to make their own decisions about whether to have children.

Of course, there is no such right in the Constitution, not explicitly anyway. So how did the court make its decision?

The answer lies in the Bill of Rights and American history.

Many of the strongest advocates of liberty among our Founding Fathers had argued against adopting a Bill of Rights. They feared that listing certain explicit constitutional rights — the right to pray and speak as you wish, for example — might imply that other unlisted natural rights have no standing. In essence, they argued that if we can't list all of our rights as human beings, we shouldn't list any at all.

"This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system," James Madison acknowledged in introducing his proposed Bill of Rights to Congress in 1789.

To solve that problem, Madison suggested what soon became the Ninth Amendment.

It states, in its entirety:

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

That is a blunt, unequivocal rejection of the anti-abortion stance on the right to privacy. It obliterates the argument that since the right to privacy is not listed explicitly in the Constitution, it must not exist.

We do have a constitutional right to privacy. The right to speak as you wish, to pray as you wish, to be secure in your home against warrantless searches or seizures, are all based on the same underlying right to be left alone by government. The right to privacy, in fact, animates the entire Constitution, Bill of Rights included. The drafters of those documents felt no need to state what in their minds was already so obvious.

Furthermore, if the Bill of Rights did not include an express ban on laws that tried to tell couples how many children to have, there was a very good reason. Not even King George, tyrannical as he was, would have dared to infringe on something so private.

If the American people eventually lose the right to privacy against an intrusive government, if that protection is eventually removed from us by a more aggressive Supreme Court, a door swings open to a whole variety of government acts.

And as we've seen, most notably in the Terri Schiavo case, there are politically powerful forces in this country eager to stick government's nose into aspects of our private lives where it has no business being, eager to claim the power of the majority to impose its will.

But in explaining why the Bill of Rights was necessary, Madison warned that the greatest danger to liberty, the most worrisome source of tyranny, "is not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority." The Bill of Rights, he said, may be "one means to control the majority from those acts to which they might be otherwise inclined."

It has done that job well. So far.

Jay Bookman is the deputy editorial page editor of The Atlanta Journal-Constitution. E-mail: jbookman@ajc.com