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.