Rand Paul

How Rand Paul's Defense of Privacy Rights Challenges Conservative Orthodoxy

The libertarian-leaning GOP candidate champions an unenumerated constitutional right to privacy.

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Credit: C-SPAN

In his speech yesterday announcing his 2016 presidential campaign, Rand Paul gave the following reasons for why he is seeking the White House:

I have a vision for America. I want to be part of a return to prosperity, a true economic boom that lists all Americans, a return to a government restrained by the Constitution.

A return to privacy, opportunity, liberty.

Notice the word privacy. Now recall Rand Paul's recent speech at the annual Conservative Political Action Conference, or CPAC, in Washington, D.C. In that speech Paul declared:

We must remember that our rights our unlimited, unenumerated and given to us by God. Don't let anyone tell you otherwise. The Ninth Amendment said those rights not listed are not to be disparaged. You do have a right to privacy.

Do you have a right to privacy under the U.S. Constitution? Many top conservative legal theorists think not. The late Robert Bork, for example, who was perhaps the single most influential conservative legal thinker of the past half century, repeatedly castigated the Supreme Court for its 1965 decision in Griswold v. Connecticut, in which the Court first recognized a constitutional right to privacy in the course of striking down a state law prohibiting married couples from obtaining birth control devices. The problem with Griswold, Bork argued in the Indiana Law Journal, is that the Court invented "a new constitutional right" out of thin air. "When the Constitution has not spoken," Bork countered, "the only course for a principled Court is to let the majority have its way." In other words, because the Constitution does not expressly list the right to privacy among the Bill of Rights, the Supreme Court has no business enforcing that "right" against legislative enactments. Only enumerated rights are entitled to judicial protection under this conservative approach.

Rand Paul takes a different view. Indeed, in his now famous January 2015 speech attacking the doctrine of judicial restraint, Paul praised Griswold as an example of the Supreme Court refusing to defer to the majority and instead correctly protecting fundamental individual rights from government overreach. "What is the position of judicial restraint? The position of judicial restraint says let the states do whatever they want," Paul said. "Is that the conservative position? I think it's not my position. I think if the states do wrong, that we should overturn them. That there is a role for the Supreme Court to mete out justice."

As Paul's 2016 White House bid gets rolling, libertarians are watching closely to see if he'll try to minimize or even disown his previous statements challenging conservative orthodoxy. Judging by his launch speech yesterday, Paul remains on the libertarian side when it comes to the debate over whether or not the Constitution protects an unenumerated right to privacy.

NEXT: Rand Paul, The Police Shooting of Walter Scott, & The Need for Change

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  1. “given to us by God”

    Will there be any end to his pandering to the SoCons? I hope he stops talking like that after the primaries.

    1. A Facederp post yesterday from a Proggie “friend” (is there any other kind?) noted the “proof that the Republicans are ready to create a Theocracy” in the US.

      This must be part of that vaaaaast, right-wing conspiracy.

      1. And the Progressives don’t want to create a Theocracy in the US?

        1. When your chosen deity is Progress, that’s not a Theocracy, That’s just the truth. There is truth (and it always battles EVIL), and there is THE LIE (which always is EVIL). Christianity is THE LIE.

          Judaism’s okay though. That’s progress.

    2. It isn’t just social conservatives. Latinos and blacks tend to be more religious than the rest of us.

      Meanwhile, the belief that our rights are given to us by God is head and shoulders above the progressive position that our rights originate from government and, therefore, can be taken away or amended by the government whenever doing so wins a popularity contest.

      I think there is actually a pretty good argument that our original conception of rights in the West actually evolved from the belief in God. If it weren’t for the observations that the son of God came and died for each and every individual sinner–so each individual sinner is extremely valuable by God’s own testimony–then I’m not sure we would have recognized the existence and reality of our individual rights as soon as we did.

      In that way, our rights–as we came to understand them–may very well have originated from God.

      1. It isn’t just social conservatives. Latinos and blacks tend to be more religious than the rest of us.

        Which may be WHY they don’t seek to impose their views by force.

        In that way, our rights–as we came to understand them–may very well have originated from God.

        The founders clearly believed that. But unlike us, they had seen and experienced massive abuses of human rights from the combination of church and state. The (un)Holy Inquisition was still committing moral atrocities in Europe. We had our own Salem witchcraft trials, And many colonists came here to escape religious persecution. That’s why they were so firm on keeping church and state separate.

        It’s not God they feared, but thousands of years of terror committed by those who claimed to be acting in His name,

  2. …Paul remains on the libertarian side when it comes to the debate over whether or not the Constitution protects an unenumerated right to privacy.

    I hope he can sell the message to the idiots.

    1. Doubtful. When rights are described as Constitutional, that implies that they come from the Constitution. So if it isn’t listed, then it doesn’t exist.

      We’ve gone from enumerated powers and unenumerated rights to unenumerated powers only limited by enumerated rights.

      1. Yes, the Constitution is written like a cookbook with precise ingredients listed and specifics about the container, the cooking device (oven, stove, fire), and the duration of cooking time. It’s all right there. A neat and tidy list. Not intentionally ambiguous anywhere. Marbury v Madison was a mistake!

      2. Doubtful. When rights are described as Constitutional, that implies that they come from the Constitution. So if it isn’t listed, then it doesn’t exist.

        That’s Ron/Rand Paul’s bullshit, and the entire purpose of the 9th amendment.

  3. PS Is Rand Paul running for President or something? I wish REASON would let us know one way or t’other.

    also – this just in – Lou Reed has died.

    1. Worried about competition?

    2. Lou Reed is dead? Fuck me.

      Well at least I still have the Cleveland Browns. They’ll never let me down.

    3. Stan Freberg died more recently.

  4. The issue is do you look at the Bill of Rights as something special such that it should be read differently than the rest of the document. The Conservative argument is that you can’t on the one hand argue that things like the commerce clause and the necessary and proper clause should be read strictly and as the drafters intended them but then turn around and read the Bill of Rights as broadly as possible and in ways counter to how the drafters intended. To put it in plane terms, if you think that the 4th Amendment should be read broadly enough to create a right to birth control, then how can you tell liberals they are wrong when they read the commerce clause just as broadly? You could say “well that is restricting government power and that is different” but that is pretty thin gruel. Liberals would respond if you read them both broadly it gives the government more power to do good and protect people while restricting its power where it matters, the power to take other people’s rights. Sure, you guys don’t find that convincing and neither do it. It is, however, not irrational and not without its merits.

    1. I’m not sure I understand. The Bill of Rights, after all, contains flat-out statements like “Congress shall make no law”. If you read that strictly doesn’t that sharply constrain the government’s power?

      1. But what do the words mean? How can you apply one standard of meaning to the body and another standard of meaning to the BOR? If the 4th Amendment can be read to great a general right of privacy not mentioned in the text nor conceived of by the drafters, why can’t the Commerce Clause be read just as broadly? Just because reading the Commerce Clause gives the government more power isn’t necessarily dispositive. Liberals would respond, giving the government more power is only a problem if doing so allows it to take people’s rights, which we are protecting against by reading the BOR broadly as well.

        1. I think I understand what you’re saying but I think it starts from a wrong premise. A right to privacy doesn’t come from a broad reading of the 4th Amendment; it comes from the fact that the government has no specific rightful authority to abridge privacy. If you read them both specifically you have a right to privacy.

          I do realize that there’s no way on God’s green earth that liberals will ever accept that. If they have to they’ll just throw the Constitution overboard rather than let it get in their way.

          1. it comes from the fact that the government has no specific rightful authority to abridge privacy

            Of course it does. What do you think search warrants and subpoenas are? The government breaches people’s privacy all of the time. It couldn’t operate the courts or the justice system if it didn’t. The issue is under what terms and subject to what limits can the government violate your privacy. But the government absolutely has the power to do it and to say it doesn’t totally misunderstands the nature of government.

        2. But what do the words mean? How can you apply one standard of meaning to the body and another standard of meaning to the BOR?

          We don’t. The main body defines and limits government by definition. As the powers are defined. It’s like one huge set of job descriptions.

          The BOR does the same thing, but by defending individual rights, with the 9th amendment as the ultimate protection,

    2. Re: John,

      To put it in plane terms, if you think that the 4th Amendment should be read broadly enough to create a right to birth control, then how can you tell liberals they are wrong when they read the commerce clause just as broadly?

      Judges don’t like the 9th Amendment, which is why they made up this idea the right to privacy comes from some other amendment. You DO have a right to birth control just like you have a right to drink yourself to death or not wear a helmet or the right to tear the tags from your pillows. Judges don’t like the 9th Amendment because any deference to it invalidates 99.9999999% of all the actions taken by the State.

      1. The 9th Amendment is only an issue if you think the government’s use of that power is violating someone’s rights. Liberals would respond that this is why we need to read the BOR broadly since doing so ensures the government does abuse its powers.

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

          It’s pretty straightforward to me that this means that the rights listed in the BoR aren’t comprehensive. You don’t need to go to a broad interpretation to get there.

          1. Sure they are not. But so what? That doesn’t mean the federal government can’t go out and do all of these wonderful things Progs want it to do. It just means it has to respect people’s rights when doing so.

            1. It just means it has to respect people’s rights when doing so.

              Except you have to assume any property or commercial rights are non-existent to say the federal government can do those “wonderful things”. The entire charade only woks if you pretend, as OM suggests, that the Ninth Amendment doesn’t mean anything.

              1. There is nothing about welfare that infringes on your commercial rights unless you think taxes in general do, which since the document embraces taxation as a power, clearly don’t. You are engaging in a losing argument. You think those things violate people’s rights because you have a set of values that says they do. Well, other people disagree. A prog will say that the government preventing you from harming others via your pollution is not violating your rights to anything and in fact protecting other people’s right not to be harmed. You will never win or settle that argument because it is equally valid either way. It just depends on what your values and assumptions are.

                In the end, all you are really saying to Progs is “I don’t like government and want its powers restricted but like rights and want those read broadly.” And the prog can rationally say they like government and want the entire document read broadly. Since you are embracing reading it differently in different places to get the results you want, you really don’t have a response for that other than “I want it the other way”.

                1. There is nothing about welfare that infringes on your commercial rights unless you think taxes in general do, which since the document embraces taxation as a power, clearly don’t.

                  That is Tony’s argument in a nutshell. Here’s the thing about welfare – it gives others a claim to your property. Government cannot both protect property rights while giving others a claim to your property. It can do one or the other, but not both. If I steal from you because I’m hungry and it’s not fair that you have more food than me, you have been a victim of an injustice. You can then call upon government to deliver justice if you choose. If I have government steal from you on my behalf, then you can get no justice since the people tasked with dealing justice were the ones who committed the injustice. Government can enforce fairness or justice, but not both.

                  1. Yes sarcasmic, that is Tony’s argument. And I don’t find it compelling either. But so what? He doesn’t find my arguments compelling. Ultimately, all I can say to him is “I don’t like the way you look at things”. If, however, I am consistent and read the Constitution narrowly in all cases, I can say “that is nice Tony but the document doesn’t mean that”. And that is a much better argument against him.

              2. Bill,

                Libertarians with the Constitution remind me of SOCONs with drugs. SOCONs want a small government. But they want it to be able to control drugs and gambling and porn. And they can’t understand that once they embrace that, they have lost the argument. They don’t like drugs and gambling and that is great. Well, some people don’t like guns or prayer or corporations. If the government has the power to restrict porn and drugs, why not guns and such? And the SOCONs don’t really have an answer beyond, but drugs and gambling are different.

                Same here. You guys want this huge expansive reading of the BOR and then want to tell Progs they can’t have the same kind of reading of the Commerce Clause. And like the SOCONs all you really can say is “well that is different”.

                1. Well, when your reason to call yourself a “libertarian” is freedom to fuck without consequence, freedom to bilk others and not be punished for it, and freedom to live forever like in a Heinlein book as translated through Robert Sawyer, why would you expect actual depth on matters of organic law and social construction? That’s just not swanky enough, not glitzy enough, for a “libertarian” who only cares about the liberties needed to debauch eternally in every dimension while imagining others’ debauchery won’t ever cause a problem for anyone.

                  The depth of a sheet of vellum, imagining itself a mile of bedrock.

                  I mean just look who writes about Con Law here. Jacob Sullum? Damon Root? Nick Gillespie? Not a one of them knows his ass from a whale’s blowhole where jurisprudence is concerned. But fuck that! We’re gonna swing this site over to Gawker perspectives!

                2. Actually they do have an answer, but it backfires on them sometimes: tradition. So-cons used to be called traditionalists. They decide the questions above by determining which are traditional & which not. But good luck w that.

            2. That doesn’t mean the federal government can’t go out and do all of these wonderful things Progs want it to do

              Doesn’t Article 1, Section 8 limit what things government can do? If it isn’t one of the enumerated powers, the FedGov doesn’t have the authority to do it.

              1. Sure it does Ivan. The question is what do those words mean? Progs want to read them with a broad meaning that changes with the time just like Libertarians want to read the BOR with the same sort of broad meaning.

                1. The question is what do those words mean?

                  I would say they mean what they say. I am not for broad reading of the constitution, more of a textual person. The BOR combined with Art1Sec8 can be read narrowly and accomplish everything the Libertarians want.

                  1. I agree with you Ivan. But what restricts the power of the federal government one place, might not do so in another place if you read the document consistently.

      2. Judges don’t like the 9th Amendment, which is why they made up this idea the right to privacy comes from some other amendment.

        More likely, judges know what the 9th A means, and they disagree with someone calling himself “OldMexican” at reason.com

        Privacy is in 4th and 5th As read together, not the 9th. I’m sure that’s my conclusion because I’m anti-hispanic or whatever, though.

      3. No, the reason judges don’t like the 9th amendment is that it makes them work to figure out what rights Americans had before the Bill of Rights. Lots of research.

        1. Sure, whatever you say. The 9th A is basically everything, eh? Where’d you learn that one?

          If you think the 9th A pivotal, I’m easily concluding you don’t know anything about organic laws or the period 1776-1797 in American history. But you go on and be ignorantly prideful, ‘n’ shit. Cuz that’s what feels good.

    3. if you think that the 4th Amendment should be read broadly enough to create a right to birth control

      Create a right to birth control, or recognize a right to birth control? Sorry, but the Constitution doesn’t create rights. It recognizes them. Rights exists regardless of what the Constitution says. The government does not create rights. It can only violate them.

      1. Sure, but that is not how the liberals read it. Indeed, I bet Root doesn’t read it that way either.

        1. but that is not how the liberals read it

          Of course not. To them rights come from their god: government.

    4. The BoR should be read to strictly limit the power of government, but only the federal government. The abomination that is the incorporation doctrine has led to the mental gymnastics that is our current constitutional jurisprudence, and has limited all of our freedoms.

      The Commerce Clause also should be read strictly, limiting the power of the federal government to keep commerce “regular.”

      Reading the entirety of the Constitution this may is the only way that the 9th and 10th amendments make sense.

      1. I agree completely. But doing that allows the states to do things some people don’t like. Sadly the Constitution has become a magic wand to get rid of bad legislation and that is not a good thing.

    5. The problem is that “privacy” is too vague a word. This has been hashed out before, but if you take privacy to mean all of the various things it’s understood in some contexts to mean, I don’t think you want people to have a right to all of them. And the Griswold line of jurisprudence is largely bull shit.

  5. Neither wing of the statist party believes in a right to privacy. The left wing makes a few noises about it, but only if you’re getting an abortion or having gay sex.

    1. They want the government ro sty out of our bwdrooms, because it needs to be monitoring the kitchen and checking the flush rate on our toilets.

  6. Do you have a right to privacy under the U.S. Constitution? Many top conservative legal theorists think not.

    Let’s put it this way: The Constitution does not grant me rights. It LIMITS the government from interfering with those rights I already have. And there is NO provision, clause or amendment that says the government has a right to spy on me.

    So Fuck You, conservative legal theorists.

    1. Perhaps you have rights outside those outlined in the Constitution? The interesting thing is that even though phones and computers and the internet did not exist at the founding, those things are perfectly analogous to what the founders intended to be private from the government. You don’t need to have a particularly broad view of the Constitution to read “The right of the people to be secure in their persons, houses, papers, and effects” to cover people’s emails, phone calls and activities on the internet. It is reading that to mean they have a right to get an abortion or buy birth control that is an expansive reading. There should be no debate about the internet from either perspective. And yet, we have a right to abortion but the NSA and the FBI read our every move on the internet and listen to our phone calls without a warrant.

      1. Re: John,

        Perhaps you have rights outside those outlined in the Constitution?

        The Constitution is not an enumerator of rights outside which everything else is fantasy. That’s the Positivist position. MY right to liberty, life and property are MINE with or without the Constitution.

        It is reading that [the 4th Amendment] to mean they have a right to get an abortion or buy birth control that is an expansive reading.

        Nobody has a right to an abortion because that is a service provided by someone else. You do have a right to buy and sell contraception, because that is part of your right to property and your right to exchange. However judges decided to justify their decisions is irrelevant. Your rights are definitively not defined by the Constitution. Reality is NOT defined by a piece of paper, John. Don’t stray from that truth.

        1. The problem with that idea for most people Mexican is what is so special about birth control? Nothing really. So if you say you have a right to buy that, why don’t you have a right to buy anything else? And if you do, then how does the government regulate anything other than maybe taxing it?

          You of course would say they don’t. Most people and indeed probably the founders at least at the state level would say they do. So how do we have a right to buy birth control? The answer the court created was that birth control is special and personal and that it implicates privacy in a way that buying unlicensed cigarettes or drugs does not.

          Basically, you have three choices; say the government has no right to prohibit commerce (which is a good answer but one no one but a few people will agree with), say the have a right to prohibit any commerce (which is an invitation to tyranny) or invent some amorphous right to privacy that makes birth control and abortion and whatever else our robed overlords prefer special and different, which is what they did.

          1. They said birth control was special & personal because there wouldn’t’ve been a Constitution or a USA without people, & there wouldn’t’ve been people without births, & therefore the right to make babies is as fundamental as the Constitution (or more so), & that the right to do so is meaningless w/o the right to not do so, therefore one must have the right to acquire the means to not do so. I shit you not, that’s what the Griswold decision came down to.

      2. Perhaps you have rights outside those outlined in the Constitution?

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

        Yeah. Yeah, it kind of looks like I do.

        1. OK, but then how do you know whether a particular putative right is one of those or not?

    2. Nitpicking: the BOR is the document that limits government power. The constitution itself was explicitly written to grant to the nascent central government somewhat more power than it had under the Articles of Confederation. However, the fear of a too-powerful government was addressed by listing in the various articles of the constitution the particular powers that each branch (executive and legislative) had. Virtually all those at the constitutional convention – at that time – explicitly argued that the descriptions of the powers explained the limits of the government.

      More radical revolutionaries (such as Patrick Henry) were very outspoken about the absence of enumerated rights and that eventually led to the BOR. But, some (Hamilton was one) were concerned that listing specific rights would lead to violations of unlisted rights by the government which led to the 9th & 10th amendments.

  7. I would also point out that to the extent that conservatives object to Griswald, they do so on the grounds that it misread the Constitution. Few if any conservatives would argue that people shouldn’t have the right to buy birth control or that it is, at least for adutls, any of the government’s business that they do. Indeed, it is Republicans who have offered to make the pill over the counter.

    I don’t see Paul going against the conservative view of privacy at all. At most he is rejecting the conservative view of the scope of the 4th Amendment. There is a lot more to privacy, however, than the 4th Amendment. You can believe that people have a right to privacy in this regard without thinking it is covered by the 4th Amendment.

    1. conservatives object to Griswald

      Why do they hate the “Vacation” movies?

      1. They dislike the way Mrs. Griswold’s right to privacy was violated in European Vacation?

    2. Do you mean 4th or 9th?

      1. I mean the 4th.

    3. And yet it’s at least partially covered by the 4th.

      While we’re on the subject, John. Don’t know if you saw my response in AM links yesterday, but I wasn’t saying you were a social conservative yesterday.

      I was suggesting that you were someone who may have held socially conservative views on things in the past and still, to whatever extent, justify them with libertarian arguments.

      If average people think of social conservatives as those who are against gay marriage and frown on abortion, …then those of us who defend those views in libertarian terms are in the vanguard of social conservatives who’ve crossed over to libertarianism. I didn’t mean to suggest you were a social conservative in the truest sense or that you’re not a libertarian.

      1. I am not actually against gay marriage. I am against declaring the right to government recognition of gay marriage under the Constitution and to the government forcing people to recognize or participate in such. I am also for legalized gambling, porn and drugs. And I don’t find the socon arguments against those things very convincing. SOCONS obsess over activities as if the activities make the person rather than the person making the activities. None of those things are in small doses harmful. They are only harmful if the person doing them does them in a way and to such an extent makes them harmful and even then they are only harmful to themselves. That is about as far from a SOCON view as one can get.

  8. Reason is now the Rand Paul Network.

    1. The Nickster’s just pleasin’ his pals at Gawker, pretending to want to talk about Rand Paul, but actually doing velvet-stiletto-jabs.

      Do it Nickster. Do it for teh Gaze.

  9. of course it does because the neo-con are not actually people who believe in freedom. The simply endorse another type of government control. Neo-cons like to give the illusion of freedom when in fact they are just as bad a the progressives. They talk about “safety” yet the solution is a police state. Whether it is a nanny state or police state, neither has any room for actual freedom and a government of the people, by the people and for the people.

    1. Does neo-con mean anything anymore? I’m asking seriously, because before 2005, when GWB got completely destroyed on Soicial Security reform, there was at least some overlap between smaller government conservatives and neocons. Since then, its been all legions, bread and circuses. I’m wondering if theres really any other flavor of conservative working in politics anymore.

  10. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is what- I do…… ?????? http://www.jobsfish.com

  11. I don’t know about you, but when I want to know Constitutional Law, I always consult Damon Root.

    WTF.

  12. “The right of the people to be secure in their persons, houses, papers, and effects…”

    That smells like a right to privacy to me.

    1. Yes, but only certain construals of “privacy”. What about a right to prohibit people from disseminating info about you? Or a right to not have solicitors solicit you?anywhere? Doesn’t look so good now, huh? People use that word to mean a lot of things, and there’s no use arguing some people are just using it wrongly. So that’s why it needs to be put in more specific terms, as above.

  13. We have only ourselves to blame, allowing others to define our terms.

    There need not be a right to privacy at all. What the fuck is included in the undeniable Right to Liberty? Simple enough?

    Likewise for a woman’s reproductive rights, or right to control her body.
    Liberty.

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