Rand Paul

Rand Paul Filibuster: 'Your Rights Are Many and Infinite… You Do Have a Right to Privacy'

The Kentucky senator tells conservatives to respect the Ninth Amendment.

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Credit: C-SPAN

Does the U.S. Constitution protect the right to privacy? Sen. Rand Paul (R-Ky.) certainly thinks so. During the course of his 10-and-a-half hour filibuster yesterday to prevent the reauthorization of the Patriot Act, Paul repeatedly lambasted the federal government for its failures and refusals to safeguard the fundamental privacy rights of American citizens. "There is a general veil of suspicion that is placed on every American now," Paul observed. "Every American is somehow said to be under suspicion because we're collecting the records of every American." It has to stop.

Paul's staunch defense of privacy rights puts him at odds with many of his fellow conservatives. In fact, as I've previously noted, many conservatives believe the Constitution does not protect the right to privacy at all, since the word privacy is mentioned nowhere in the text of the Constitution. As the late conservative legal theorist Robert Bork once put it, there are no individual rights in those areas where "the Constitution has not spoken."

During his filibuster yesterday, Paul tackled this conservative orthodoxy head on.

"Some conservatives say, well, there is no right to privacy. I don't see it in the Constitution," Paul observed. But those conservatives forget the text of the Ninth Amendment, he countered. "The Ninth Amendment says that all the rights aren't listed, but those that aren't listed are not to be disparaged. Even our Founding Fathers worried about this."

The founders certainly did worry about it. According to James Madison, the author of the Ninth Amendment, one of the dangers of adding the Bill of Rights to the Constitution was that "by enumerating particular" rights

it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against.

What was Madison's method for guarding against the misguided view that the Constitution does not protect unenumerated rights? It was the addition of the Ninth Amendment, which reads: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

In his filibuster yesterday, Rand Paul echoed Madison's arguments. While the constitutional powers of the government are "few and limited," Paul explained, "it's the opposite with your rights. Your rights are many and infinite. Your rights are unenumerated and you do have a right to privacy."

As the 2016 White House race gets going, I look forward to finding out where the other GOP candidates stand on this fundamental constitutional debate.

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129 responses to “Rand Paul Filibuster: 'Your Rights Are Many and Infinite… You Do Have a Right to Privacy'

  1. Tulpa and his ilk would mock me every time I referred to the 9th.

    I still claim all of natural law is covered by the 9th.

    1. The Constitution was written with the idea that all of those rights existed, beyond the power of definition, and that we were establishing a government that could perform a short list of functions and nothing not on that list. How can you mock the 9th when it simply expresses that view, albeit a bit redundantly from the Founders’ point of view?

      That’s not to say that all was groovy and anything went back then, but that was their political philosophy, and it was a hell of a lot better than what gets spouted now, which is really no more and no less than might makes right.

      1. The only freedom Tulpa believes in is the freedom of doing as you are told.

        1. Perhaps a compromise is available. We go to a minimalist government, but for people craving domination, a company (or more than one, I suppose) is founded that will sell them the service of being controlled and offered order. All for a fee, and all contractual.

  2. In his filibuster yesterday, Rand Paul echoed Madison’s arguments. While the constitutional powers of the government are “few and limited,” Paul explained, “it’s the opposite with your rights. Your rights are many and infinite. Your rights are unenumerated and you do have a right to privacy.”

    Absofuckinglutely.

    1. Exactly. The Founders were very clear, ‘only what’s written down, that’s all the government’s powers, and as to rights, we explicitly are saying they are NOT limited to what’s written down.’ But SCOTUS starts with a presumption that a governmental measure is constitutional and a strong reluctance to declare unenumerated rights. They have it backwards.

      1. I’ve long said that review of constitutional issues should always start with a presumption of unconstitutionality. Every single time, the SG or whoever is arguing the case should have the burden of proving the constitutionality of a law or government action. If he fails, the government loses, and the law or action gets tossed.

        1. Pro Libertate, I agree. My version of that idea is that strict scrutiny should apply to every government action. If the government cannot show that it has a compelling interest and is using narrowly tailored means to achieve it, why should they be allowed to act in a nation that loves liberty?

          1. Yeah, the supreme Court definitely takes the view that the feds can do anything they like unless the constitution specifically prohibits it. And even then they’ll look for any possible way to twist logic and torture the language to get the desired result.

      2. Well, they are the Nazgul after all.

        1. What we need is to get the Ring back and toss it in the right volcano this time.

  3. Enumerated powers and unlimited rights have given way to unlimited powers and enumerated rights.

    1. Yeppers. Totally contrary to the Constitution. We’d be about as close to actual constitutional government if we burned the document and completely ignored it.

      1. But then we wouldn’t have a piece of paper to look at solemnly when we were in DC…

        1. We could replace it with a picture of whichever president finally seizes lifetime power.

    2. Yes. And I will be stealing that.

  4. …there are no individual rights in those areas where “the Constitution has not spoken.”

    But plenty of unspoken government rights.

    1. I was watching The Running Man on Netflix for a bit a couple of nights ago, and I saw a system that might help. Wire unremovable explosives to the necks of all public officials. Each citizen can select to set off those explosives at any time, for any reason, without any liability whatsoever. Kind of a reverse blackball.

      1. I believe Andy Levy proposed something similar to this on Red Eye the other night.

        1. Well, I have a second. Let’s vote on it.

      2. This makes it seem like you were flipping channels and stopped on Netflix.

  5. The Borks are simply having an overreaction to what the courts have done in the name of “privacy” – they don’t think the courts can be trusted to apply the concept in a principled way, so they want to deprive them of that power altogether.

    I say, that’s throwing out the baby with the bathwater. The answer to the courts and their fake definition is to replace it with a real definition.

    I don’t think the Founders wanted the feds to have an unlimited power to overrule contracts between citizens promising to keep their information confidential. Overriding such a contract should require a warrant at least. If the 4th Amendment doesn’t cover this situation, the 9th sure does.

    1. Are you a fan of the 9th Eddie? Good for you. Most pro-lifers seem mighty suspect of the 9th, Griswold leading to Roe and all.

      1. I already addressed this question, you silly person.

        1. So contracts between doctors and patients to buy and sell contraceptives wouldn’t be covered, but contracts to keep information private would?

          1. Your fallacy is the “False Choice”. Please try again.

    2. No, the Borks are simply following the logic laid out by the progressives. If the government is presumed to have the power to do whatever the hell it wants concerning your economic affairs and the constitution is only a marginal protection if it specifically forbids the government from acting (because “Democracy!”), you have to be a special kind of disingenuous to pretend the same thing doesn’t apply to your social affairs or any of the rest of your rights.

      The answer to the matter is actually quite simple – restore the uniform broad protection of individual liberty.

  6. Paul is a hero. This is what heroism looks like, what principles look like. It’s not when you tell your base or party what they want to hear and stick it to your enemies (that’s people like Scott Walker’s ‘heroism’), it’s when you take a stand that might not sit well with your base and party.

    I’m actually disappointed that Cruz didn’t join him, but as I’ve long said, if Paul gets the nomination he needs to remember Mike Lee as VP.

    1. He should pick one of the Dems that stood with for VP.

      1. *Stood with him*

      2. There’s a lot to like about Wyden, but some things not to like either, some of which would make Paul unsupportable by many in his own party. Lee’s the best bet.

    2. Amash as Veep.

      1. Nah, keep Amash in the House. Veep doesn’t matter too much. Hell, keep Biden as the Veep, for the lols.

        1. I’d rather see Amash eventually become Speaker of the House.

      2. No. He’ll need an establishment type who doesn’t piss off the base and will give the ticket appeal among moderates and those salt of the earth morons known as “swing-voters”. Governor Susana Martinez (R-NM) would be his best bet.

        1. If he is gonna pick a NM governor, I have a better idea.

          1. I like Gary Johnson, but if Paul’s gonna pick a libertarian as his running mate he might as well pick Sen. Mike Lee whose currently sitting in public office and he doesn’t piss off the social conservatives. But as stated above picking Mike Lee or any other libertarian (including Gary Johnson) isn’t gonna bring him much to the ticket other than possibly divide the GOP. Paul is already gonna lose a number of foreign policy hawks, he needs to at least keep his party’s base intact and ready to get out the vote.

            I would say for Paul his best choices would be: 1) Martinez, 2) Kelly Ayotte (NH) 3) John Kasich (OH) 4) Scott Walker and 5) Maybe Brian Sandoval (he’s pro-choice though and that could hurt the ticket).

        2. Nikki Haley.

      3. If Rand were to actually get elected, he could name Amash to replace Ginsburg or the next winner of the death lottery at SCOTUS.

        1. If Rand were to actually get elected, hell would freeve over. The money machine running team blue and team red will never let him get close to the nomination.

    3. Cruz did, but at the end, and he did his preacher thing and rambled. He acted as if he were there all night. What a dick Ted Cruz is.

      1. Yeah, he’s often disappointing, but think how much better Cruz is than almost every other member of Congress. That makes you think, doesn’t it? Too bad we can’t have 100 Pauls in the Senate, but at least there’s him and a few lesser voices opposing at least some aspects of Leviathan.

        1. He’s still loathsome. He may be right fairly often (and so very, very wrong when he’s not), but he makes me want to stab kittens.

          1. I understand completely. It’s a the Loathsome Age.

            1. A the? It’s indefinitely definite.

      2. I didn’t know that, thanks. I’m willing to forgive him a bit of grandstanding and concentrate on the fact that he took the stand.

    4. Paul is a hero. This is what heroism looks like, what principles look like.

      On that, for once, I have to agree with you.

      I’m actually disappointed that Cruz didn’t join him,

      Actually, he did. He was late to the game, but he did show up.

    5. …he needs to remember Mike Lee as VP.

      I like Lee. But, Paul would be very foolish to do that. Mike Lee doesn’t deliver Rand Paul a single vote that he wouldn’t have locked up already.

      Perhaps Nikki Haley.

      1. Haley doesn’t really bring him anything either other than diversity. South Carolina isn’t going Democratic unless they ran John C. Calhoun’s corpse at the top of the ticket. Governor Susana Martinez from New Mexico is his best bet. She passed civil asset forfeiture reform which helps with libertarians, she’s a staunch fiscal conservative, she’s a social conservative, she doesn’t piss off either the base or the establishment, and she’s from a “swing state.” After her I would consider Sen. Kelly Ayotte (she gives him political cover with the hawks) from New Hampshire, or maybe Governor Brian Sandoval from Nevada his only problem is he’s pro-choice and from Nevada which may give the ticket too much of a libertarian vibe.

    6. Paul is a hero. This is what heroism looks like,

      Yes, it’s very heroic to stand in a nearly empty room and say words knowing that absolutely nothing you say will result in material harm to yourself and your family. The true definition of a hero. I suppose everybody who posts to these comments section is a hero as well. Wow!

      1. Didn’t get your honorary gold ranger’s badge out of your cereal box huh?

  7. There is not really a right to privacy ?if you leave your front window without curtains or shades and you walk around in your birthday suit, you can’t claim people should not glance at the house.

    The correct moral principle is that the government doesn’t have the right to violate your private property by removing the curtains or the shades from your window. Neither does anybody else, for that matter. It all comes down to property rights, not this right to privacy.

    The little game played by politicians is to invoke a series of rights that don’t exist as a way to obfuscate the issue of rights. We then watch as they waste precious time with these long discussions about something that doesn’t exist.

    1. How would your idea cover cell phone interception?

      1. Encryption. 🙂

        1. I’m having my DNA encrypted.

      2. Re: Bo Cara Esq.

        How would your idea cover cell phone interception?

        Besides the technological solutions already given to you, the fact is that when you use your cell phone, you’re broadcasting information into the airwaves. The fact that another device can pick up those signals and interpret them does not violate your property rights in itself. If you don’t want people listening to your conversations, then don’t use a cell phone ?use the cone of silence.

        1. The joke with the Cone of Silence is that it *didn’t* work. People inside the Cone of Silence had trouble hearing each other, while people outside of it could actually hear them both.

          Of course, if you have to explain the joke…

        2. Besides the technological solutions already given to you, the fact is that when you use your cell phone, you’re broadcasting information into the airwaves.

          So — landlines have privacy, mobile phones don’t. Because airwaves. How interesting.

          And how wrong.

    2. I disagree with your formulation. If you choose to have a big picture window, and choose to leave the blinds open while you walk about your visible from the public right of way home then you are exercising your right to privacy by choosing to leave yourself exposed to the public.

      Privacy, like any other true right, is not dependent upon the cooperation of others. They do not provide you privacy by not looking, you must express your privacy by actions that prevent their seeing when they do look.

      If someone then takes active steps to remove those impediments, or interferes with your free ability to impose them, then they are violating your right to privacy.

      Your argument comes dangerously close to progressive notions of “positive rights.” Which is nonsense on stilts.

    3. You know better than this, Viejo. All rights are rights against government intrusion. It’s not whether you have a right not to tell people not to look if you parade naked, it’s whether you have a right to tell the government not to put cameras in your bedroom to take naked pics of you.

      Which you do.

      1. Re: BakedPenguin,

        You know better than this, Viejo. All rights are rights against government intrusion.

        But that is what I said: “The correct moral principle is that the government doesn’t have the right to violate your private property.” The sanctity of your home and personal effects stems from your right to property, nothing else.

        Placing cameras in your bedroom without your permission constitutes a violation of your property rights.

        1. ^^This^^

          Abstracted from reality natural rights cannot exist. They are either fundamentally grounded in reality (property) or it’s a pure and naturally indefensible fabrication; a truth so blatantly self-evident and fundamental that no one knew about for the first several millenia of organized society and/or for 50, 100, or 150 yrs. of Constitutional Freedom.

        2. ” All rights are rights against government intrusion.”

          All rights are rights against any intrusion, the presence or absence of government being only a secondary consideration.

          My right to privacy is not limited to government intrusions. But intrusion by government – particularly in a nation expressly established for the purpose of guaranteeing my rights, is especially galling.

          As to the idea of property rights, I think that is a semantic game insofar as I can be said to have a right to my property as well as have a property in my rights.

        3. Placing cameras in your bedroom without your permission constitutes a violation of your property rights.

          So if you’re in a borrowed car, you have no such rights?

          If you’re a guest at someone’s house, you have no such rights?

          If you rent rather than “own” (via mortgage) your dwelling, you have no such rights?

          I don’t think a stupider interpretation of the Constitution exists. Everything a “property right”? That’s so mistaken it’s almost slapstick.

          1. When you rent an apt you have property rights within that property by contract with the owner.

            When you are a guest the govt still has no right to go into the room – you are borrowing someone else’s property, that the govt can’t violate.

            Or was your comment sarc?

            1. Your answer doesn’t contradict what I said, it merely suggests the “right to contract” is fundamental and the origin of “property rights.” So nobody has any “property” unless they have a contract in writing specifying the allegedly transferred “property” and explicitly transferring ownership of that “property”?

              That’s funny in a chicken vs egg sort of way, but it says nothing on what I observed.

              Perhaps you should try again, this time without the failing effort at superiority and crippled attempt at comedy.

              Maybe try the borrowed car example this time too. See if your tail-chasing non-argument applies there.

    4. A citizen’s right to an activity or possession are to be assumed.

      Persons, houses, papers and effects… even if 3rd party records were proven to not be “papers”, they would be “effects” of the citizen entrusted to a 3rd party:
      The 4th amendment
      This is privacy.

      Citizens can assume a right to any activity or possession until the government can prove otherwise in a court of law:
      The 9th amendment.

      This is called freedom. The “rights” that don’t exist are the ones the government claims.

      Citizens have rights. The government has restrictions.

  8. Now, the 9th refers to rights “retained by the people,” which seems to indicate rights recognized as such in 1791.

  9. Judging Conservative reaction yesterday was interesting. The NRO had 3 different articles critical of Paul. The comments section of each was a nearly universal smashing of the authors and editors.

    This will be a divisive issue for Republicans.

    1. Good – I hope the Establicans get their asses sawed off.

      1. Liberaltarian picksniffery at “less than pure” pols like Rand, and others only serves to ensure that this will not happen.

        1. R vs D is everything. The Constitution commands that you pick a team and root for it, and incorporate purity tests (No True Scotsman, etc) in the rooting.

          For which team does Damon root?

    2. This. A fascinating dynamic. Now Commentary is out this morning with a loooong hit piece on Paul’s “dangerous unseriousness.” Fox is openly hostile at this point and the leftists have decided to just sneer and ignore rather than treat him as a threat, which he surely is.

      But almost universal support for Paul and disdain for the Patriot Act in comments at NRO and even Hot Air. It’s weird.

    3. They may have already lost (the old guard, I mean). When I hear the socon, staunch Republican in my office talking positively about Paul and the importance of the Constitution, it suggests that perhaps things are changing. Cooke seems to understand it, but perhaps his bosses are a little slower.

      1. The conservative old guard that gets it – Charles Cooke, generally George Will, sometimes Jonah Goldberg…

        1. Kevin Williamson. At least if we’re defining “old guard” as “people that write for National Review” that is

    4. Yup. As I said yesterday, this is a civil war in the Republican party. And I think this election is going to settle it (at least for a while). Even the conservative (as opposed to just GOP) establishment is dead set against him. But, the rank and file are behind Paul. If Paul gets the nomination, I really wouldn’t be surprised to see a fair portion of the neocons defect to Clinton (they’ve threatened to already, yet they keep insisting Republicans need to rally around a non-Paul candidate to stop that evil Hillary Clinton from getting in office. If that happens, I think there’s a good chance American politics is in for a major realignment.

      1. A Liberty (economic and civil) Party vs. an Anti-Liberty Party would really clarify choices.

        1. I doubt they’d cast themselves as Anti-Liberty (more likely Communitarian or Populist). But, yeah.

      2. I’d hope neocons would just stay home in that scenario. If Bill Kristol endorsed Hillary, it would be such an astounding bout of hypocrisy he’d lose all credibility. They’d need to drop the “con” portion of their name or have it taken from them at any rate.

        1. We should definitely ignore the ways in which Bill Kristol’s whims and wishes are advanced by people like Hillary Clinton or Barack Obama or Bill Clinton, and focus more on whether Bill Kristol publicly endorses a Team D person. Public pronouncements matter far more than private agendas and behind-scenes/off-stage cooperation or synthesis.

  10. “As the 2016 White House race gets going, I look forward to finding out where the other GOP candidates stand on this fundamental constitutional debate.”

    Find out?
    Stand?
    Debate?

    1. Stand in the place where you live
      Now face north
      Think about direction
      Wonder why you haven’t before

      Now stand in the place where you work
      Now face west
      Think about the place where you live
      Wonder why you haven’t before

      If wishes were trees, the trees would be falling
      Listen to reason, reason is calling
      Your feet are going to be on the ground
      Your head is there to move you around

    2. Rubio, Christie, and Bush are all against Paul and in favor of the domestic spying.

      Cruz gave qualified support to Paul.

      The Governors are sitting this debate out for now.

  11. The Constitution devises and establishes a state with few, precise, extremely finite powers of a very narrow scope. Its error was permitting its own alteration without criteria proscribing amendments and the assumption of powers of a tyrannical nature.

    1. Put down the thesaurus and try studying the evolution of constitutional law and interpretation. Your polysyllabics may have impressed you just before you hit “submit,” but they tell me nothing at all about the constitutional text or interpretation’s validity.

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  13. Paul’s 9th Amendment source for the individual right to privacy is vastly superior to Justice Douglass’s strained concept of a penumbra emanating from specific enumerated rights. I wonder though if Paul believes the right to privacy extends to State action via the 14th Amendment

    1. But I think for Douglas, at least at first, the 9th was a source of the penumbra. It’s not great, but it’s one of the few invocations of the 9th in SCOTUS precedent that I can think of.

      1. Push button, receive stupid.

        I really like your “ironic” send-up of the duped Obamanaut. It’s so funny in a Dane Cook sort of way.

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  15. “…there are no individual rights in those areas where “the Constitution has not spoken.”

    Bork and his ilk know full well that that is complete bullshit. They are nothing more than tyrants fit for exile.

    Nothing more I can say here that hasn’t already been said in the comments.

    1. I look at it from the opposite side. There is no power for the government to do anything in those areas when the constitution is silent.

      1. Strange, because that is precisely what the constitution says too..

    2. The Borkster is known more for his incredible beard than for his jurisprudence, attempts at SCOTUS confirmation notwithstanding.

  16. Damn right.

    And seriously, when a guy stands up and says something like that, especially in the face of his own party…

    I know Paul isn’t the ideal libertarian candidate in every way, shape, and form, but he is so, so much better than any other serious contended in my memory.

  17. As much as I’d like to see the patriot act and domestic spying go away, as long as we continue our current foreign policies it may be a necessary evil. The threats against this country are increasing, due in large part to our actions abroad. IMO, our foreign policy and domestic spying go hand in hand and you can’t change one without changing the other.

    That’s my 2?

    1. Government spying poses a greater threat than terrorism.

      The largest terrorist attack in U.S. history was tragic and awful, but it killed fewer than Perl Harbor and was not part of a credible, sustained attack on U.S. soil.

      Terrorism simply is not an existential threat to the U.S. That’s not to say it is a non-threat, but it is not anywhere near the magnitude that could justify the response it’s been given.

      1. What is that “largest terrorist attack” you reference? And who were the “terrorists” responsible?

        The USS Liberty debacle, perhaps?

      2. One of the problems is that people don’t fear war yet by definition terrorism is scary. This makes them less concerned with not provoking wars than with stop terrorist.

        As far as the debate between domestic spying and security while not ideal government monitoring of international communications was law for decades, continuing this and using it as a trigger for due process investigations of specific individuals seems reasonable compared to what we have today with just as much of a chance of detection as they have now.

    2. -$0.02

  18. Given the text of the ninth and tenth amendments–

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

    Tenth-
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

    I’d say Bork was spot on–though perhaps not in the way he’d intended.

    Since the Constitution includes all the unenumerated rights there are–as well as all unenumerated powers–I’d say it pretty well covers everything–and leaves most of it in the hands of the people.

    I had to fix this–

    The Kentucky senator tells conservatives to respect the Ninth Amendment.

    because it should read thus–

    The Kentucky senator tells the senate/congress/president to respect the Ninth Amendment.

    He didn’t have to tell ‘conservatives’ that. ‘Conservatives’ already knew that. They elected him. And Massie. They are both the product of the conservatives, tea parties, and republicans of Kentucky

    Not the KY LPthough they helped somewhat), and definitely not the Democrats.

  19. Did Griswold or Roe v. Wade mention the 9th Amendment? I thought they just focused on admittedly weird interpretations of the enumerated rights to get to the right to privacy?

    1. The Constitution is not a code, it is not the Napoleonic Code (what Louisiana used for its state statutory regime), it is not a laundry list of dos/donts. It’s a statement of principles. It’s not a cookbook recipe.

      Too many people think the Constitution is like a multiple choice test.

      No, it’s an essay test.

  20. “As the 2016 White House race gets going, I look forward to finding out where the other GOP candidates stand on this fundamental constitutional debate.”

    I think we already know on a few of them.

  21. Rand Paul is just plain fucking awesome. What an inspiration for Americans, both old and young. He bridges the gap. Rand Paul 2016.

  22. I don’t necessarily disagree that there is a right to privacy. But I think it’s derived from the 4th amendment. Just like SSM is justified via freedom of association derived from the first. Where I have concerns though is with the invention of “rights” out of whole cloth as the SCOTUS has shown itself inclined to do. I think it’s Stevens that’s suggesting SSM be allowed under some nebulous right to “dignity”. Which sounds like a (using progressive terms) “negative” right, but could easily be twisted to justify the various and sundry “positive” rights the collectivists envision a la FDR’s 2nd bill of rights. Gov’t provided healthcare, food, clothes, smart phones, cars, sex bots, etc, all can be justified under a right to “dignity” or “fairness” or what have you.

    1. I hate to tell you this, but the universe of Constitutional Law doesn’t care about “progressive” social identities and Con Law isn’t partisan. “Positive rights” and “negative rights” are not about progressive vs conservative. You sound like the Inverse Weigel here.

      1. I was actually attempting to channel Ed Whalen, but I learned my con law at the Univ. of Chicago circa 2002 so you’ll forgive my ignorance.

        1. You are Chicago law alum on the internet?

          How about in reality?

  23. I suppose Damon Root wants to hamstring his own presentation by focusing only on the 9th A when the 4th and 5th As make it very clear that privacy is fundamental. Why else require warrants for searches, and why else allow someone to remain silent and require the state to prove guilt?

    Maybe reason.com needs some writers who actually understand Constitutional Law from a non-ideological perspective. Root says we only need to ask Madison’s ghost. Madison was but one of many who were behind the creation of the Constitution and the Bill of Rights issued thereafter. Maybe Root should examine the Articles of Confederation as well as the collected work of the anti-federalists before pontificating with such smug authority.

    The idea that enumerating rights in the Bill of Rights would be a long-term detriment is sophistry if you have studied the origins of the Constitution, the debate surrounding it, and its comparison to the Articles of Confederation. So maybe Root’s just a sophist.

  24. If Roe v Wade can be settled law based on the 9th amendment, then there is no room our country for NSA spying or meta data collection or confiscation of assets with NO trial, conviciction or probable cause. Oofah. Go Paul. Sign the petition or whatever there is to sign.

    1. If you think Roe v Wade was decided solely upon the 9th A, you need a new tutor to help you with case opinion interpretation.

      Now Row vs Wade, the fishing debacle, that one might be based upon 9th A interpretation. But not the abortion decision.

  25. If you lack the right to privacy, what rights do you actually have? Something to think on, no??

  26. “You do have a right to privacy!!!”…

    …except when it comes to a baby in your uterus or eating out another man’s asshole. That’s different and subject to my Kentucky-borne religious edicts and/or personal naughty quotient.

    1. that is a grade A stupid argument. The abortion debate pivots on the definition Of human life. Something which is unprovable and probably unknowable. Pretending that you know the answer to this question to a metaphysical certainty is old school hubris.
      There is a strong moral argument to be made that in not knowing this answer we must err on the side of protecting life. Promoting one person’s right not to be murdered above another person’s right to privacy is hardly a personal naughty quotient.

      1. No, no, no. Right to choose life extermination is fundamental, therefore we all have the right to choose to exterminate another’s life. A mother may kill her child at any time, in-womb or thereafter, because of the Right to Choose. We don’t care what Choice is at issue. Right to Choose is fundamental! Choose to exterminate life! It’s fundamental!

        I like this line of slapstick. It’s like being in 4th grade and making up nonsense comedy!

        “Why did the chicken cross the road?”
        “To get run-over, unexpectedly, mid-crossing.”
        “Exactly.”

  27. Interesting debate.
    A thousand years ago, when I was in school, in debate class, the first order of debate was to define the terms of the debate subject.
    Dictionary, dot com, list 54 definitions for the word “right”, in the four basic parts of speech, 20 of them in the “noun” category.
    Which one is in use, here?
    What is a basic human “right”?
    It is a term thrown around a lot, without an agreed upon definition.
    The Ninth Amendment talks of rights retained by the people, in other uses of “by the people” such as in the Tenth, it seems as if the Framers were talking about a plebiscite – the voters can decide what is a right.
    Since the Constitution was, mostly intended as a check on government power, it would seem the Framers didn’t intend for the government to decide what is a right but that the people should.
    How that would be accomplished is anyone’s guess but would have been much simpler in their time of a much smaller population, than now.

    1. How that would be accomplished is anyone’s guess….

      By Executive Order!

  28. Since the ability to overcome the privacy of individuals is not mentioned in the Constitution, the government is not granted that power and authority. Therefore any acts enforcing such powers are unconstitutional.

    1. The Constitution is silent on small daily dose poisoning of another, so I guess it’s okay to kill a fellow human with incremental dosages.

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