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Currently prevailing constitutional law is that the right to privacy is an unenumerated right, one that is not explicitly set out in the Constitution but follow

• dehrmann 6y ago
  > That is the basis for Roe vs Wade, and so there's been a 40 year-long struggle by conservative lawyers that threatens this right. It takes a pretty creative reading of the constitution to infer a right to privacy, then infer that that grants the right to an abortion. One of the criticisms of Roe is that states were legalizing abortion on their own already, so doing it through the court angered people more than if it had happened in each state, and it's build on shaky constitutional underpinning, so it's not necessarily a robust decision.
  • humanrebar 6y ago
    Also note that constitutional amendments basically dropped off at that point as the legislature abrogated responsibility of protecting natural rights in favor of blaming others, especially the court system. Why hasn't a right to privacy amendment been discussed at all? Or even a Privacy Rights Act? Those would clarify things too.
    • rayiner 6y ago
      Because progressives (and I mean that in a negative way) don’t want to spend political capital on legislation when they can get courts to do that work for free. I suspect that approach will have to change with the current composition of the Supreme Court.
      • sagarm 6y ago
        Actually it's because the structure of the US Constitution makes it so rural types with an decidedly authoritarian bent have veto power over any amendments.
        • humanrebar 6y ago
          Rural voters are actually sympathetic to privacy concerns, at least on some issues like fun registries and healthcare records. Note that the constitution gives any 25% of the country "veto power" as far as amendments go. Folks are, yes, going to actually have to find privacy laws and amendments that significantly benefit almost everyone. And actually convince them of that.
• freeflight 6y ago
  The currently prevailing real world practice is how none of that applies to information voluntarily given to third parties, like Google, ISP, banks, phone providers, mail providers and whatnot [0]. [0] https://en.wikipedia.org/wiki/Third-party_doctrine https://en.wikipedia.org/wiki/Third-party_doctrine
• rayiner 6y ago
  To be clear, it’s not just “conservative lawyers.” Roe v. Wade is the Lochner of liberal jurisprudence: https://en.wikipedia.org/wiki/Lochner_v._New_York https://en.wikipedia.org/wiki/Lochner_v._New_York. Both decisions only make sense under a sweeping libertarian view of the Constitution that isn’t broadly embraced anymore (if it ever was). Even Ginsberg didn’t like Roe’s privacy formulation: https://www.nytimes.com/2020/09/21/us/ruth-bader-ginsburg-roe-v-wade.html https://www.nytimes.com/2020/09/21/us/ruth-bader-ginsburg-ro... > The way Justice Ginsburg saw it, Roe v. Wade was focused on the wrong argument — that restricting access to abortion violated a woman’s privacy. What she hoped for instead was a protection of the right to abortion on the basis that restricting it impeded gender equality, said Mary Hartnett, a law professor at Georgetown University who will be a co-writer on the only authorized biography of Justice Ginsburg. Ginsberg realized that “equal protection” has the benefit of being in the constitution, while “privacy” nowhere appears in the document.[1] As the left has shifted away from social libertarianism, the ideological underpinning of Roe has become increasingly unsettled. That’s why in the recent confirmation hearings you only heard discussions of “super precedent” not any sort of debate about a sweeping privacy right. [1] “Privacy” as an “unenumerated right” makes little sense under either liberal or conservative readings of the constitution. If you, like Scalia, believe that the “unenumerated rights” were those that were understood to exist at the time of the founding, then privacy isn’t one of those rights. But even if you subscribe to a “living constitution” view that fundamental rights can change over time—what’s the basis for your claim that “privacy” is generally recognized as a fundamental right today? I’m not aware of any constitutional court in the world that has embraced a notion of “privacy” broad enough to include both abortion and freedom from surveillance. Around the same time as Roe courts in Canada, France, Italy, and Germany declined to recognize any right to an abortion. The first three found it to be a legislative matter. The latter found legalizing abortion to be unconstitutional as a violation of the German Basic Law’s right to life.
  • zdragnar 6y ago
    Small quibble: All rights precede the constitution, as the government is not the source of rights (they are natural or God-given, take your pick). The constitution and subsequent amendments merely outline which rights the government may violate as a matter of necessity to run, and certain rights which it may not violate at all. As you say, privacy is not mentioned; it does exist as a right but has no explicit protection except for the conditions in the 4th and 5th. Of course, the federal government's role has grown so much, and the interstate clause abuse has basically expanded it's power to encompass anything and everything, it is not unreasonable to think that the first 10 amendments are the only rights we have anymore :/