5th Circuit Judge: Right to Privacy Doesn't Exist

Judge Harold R. Demoss Jr., a Bush 41 appointee to the 5th Circuit where he now serves, rights a lengthy piece in the Houston Chronicle which states flat out that the "right" to privacy clearly doesn't exist in the Constitution:

In this season of politicized and contentious confirmation hearings to fill vacancies on the U.S. Supreme Court, some of the sharpest debate and disagreement concerns a so-called "right of privacy" in the U.S. Constitution.

The advocates of a constitutional right of privacy speak as though that right were expressly stated and enumerated in the Constitution. But the text of the Constitution does not contain the word "privacy" or the phrase "right of privacy."

Consequently, in my view, a constitutional "right of privacy" could only be unenumerated and is therefore a figment of the imagination of a majority of the justices on the modern Supreme Court. Let me explain why.

Webster's Dictionary defines "enumerate" as "to name or count or specify one by one." Roget's Thesaurus states that the synonyms for "enumerate" are "to itemize, list, or tick off." Adding the negative prefix "un" reverses the definitions or synonyms so that "unenumerated" means not named, not counted, not specified, not itemized, or not listed.

The right of privacy is unenumerated because neither the word privacy nor the phrase right of privacy appears anywhere in the Constitution or its amendments. Nor does the text contain any words related to other rights the Supreme Court has found to derive from that right, including the right to an abortion and rights related to sexual preference. Neither "abortion" nor "sexual preference" appear anywhere in the text of the Constitution.

The idea of a constitutional "right of privacy" was not even recognized by the Supreme Court until 1965, when Justice William O. Douglas used the idea in writing for the majority in Griswold v. Connecticut, where the court concluded that a state law criminalizing the use of contraception was unconstitutional when applied to married couples because it violated a constitutional right of privacy. That was 176 years after ratification of the Constitution, 174 years after ratification of the Bill of Rights and 97 years after the ratification of the Fourteenth Amendment.

How'd you like to see a confirmation hearing featuring this guy? Joe Biden's hair plugs would fall right out. Of course, the judge is right, Dem hysteria notwithstanding. The "right to privacy" was pretty much invented out of whole cloth, and we've been paying for it ever since.

The judge is suggesting a national referendum to determine once and for all if five Supreme Court justices should have the ability to amend the Constitution as they did with the "right to privacy". Here's the judge's final paragraph:

As a U.S. citizen, I respectfully petition the Congress to call a national referendum to permit the people to just say no or yes to the Supreme Court's usurpation of the power to amend the Constitution. I invite others who share my views to do likewise.

Interesting idea. It'll never happen, but who knows - if a bunch of center-right bloggers get behind it, they could generate some significant publicity about the idea.

Read the judge's entire opinion here.