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02 May 2009

Constitutional Right to Privacy?

Unfortunately some of you self proclaimed constitutional scholars don’t know as much as you think you do. For example, did you know that there is no mention of the privacy rights in the Constitution?

HISTORICAL BACKGROUND AND ORIGIN OF THE RIGHT TO PRIVACY

The constitutional right to privacy was judicially created by the landmark United States Supreme Court case, Griswold v. Connecticut. In this case, the Supreme Court of the United States, by majority opinion, held that the right to privacy was not explicitly guaranteed by the Constitution or the Bill of Rights, but was to be found in the “penumbras” and “emanations” of other constitutional provisions. In other words, the Court _inferred the right to privacy existed even though the Constitution and the Bill of Rights does not provide for such protection.

The concurring opinions base the right to privacy in the due process clause of the Fourteenth Amendment, and another opinion bases the authority of the Court to create such a right in the Ninth Amendment.

Two judges wrote dissenting opinions in which they argued against the creation of the right to privacy where none was granted by the Constitution.

The Griswold decision was based on the argument that married couples have a right to privacy when it comes to their decision whether to use birth control devices. After this decision was handed down by the Court, the right to privacy was expanded to protect the privacy rights of unmarried sexual partners (Eisenstadt v. Baird,) same sex partners (Lawrence v. Texas,) and the right to seek an abortion is based on a woman’s right to privacy (Roe v. Wade.)

The right to privacy in this case was created by judicial activism. Many conservatives argue against judicial activism, claiming that the Courts in the United States do not have the authority to create law.

EDITORIAL SECTION

Before my readers who are anti- judicial activism start shouting about the Supreme Court over stepping it’s bounds, think about what you are saying! If you demand that the Supreme Court reverse its decision in Roe v. Wade then you are demanding that the Court reverse its decision that created your beloved right to privacy.

You can not have your cake and eat it too when it comes to equality and equal application of the law. Either there is a right to privacy for everyone, or no one.

Either the Court was correct in creating this right to privacy and you benefit from it, or it was incorrect and you have no right to privacy. What’s it going to be folks?

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