Does the Constitution Contain a Right to Privacy?

by Harry Browne

May 9, 2003         

Senator Rick Santorum recently caused a brouhaha when, during an Associated Press interview, he defended laws against sodomy saying that permitting sodomy is as good as saying polygamy, incest, and adultery should be permitted.

This provoked a firestorm and that caused a far more troubling Santorum statement to be overlooked. He said:

It all comes from, I would argue, this right to privacy that doesn't exist in my opinion in the United States Constitution . . . 

Is there a right to privacy in the Constitution?

Well, I searched my copy of the Constitution of the United States and I couldn't find the word privacy anywhere in the document. Does this mean the Senator is right?

I also searched the Constitution and I couldn't find the word marriage either. Does that mean I don't have a right to be married that a so-called "right to marriage" was invented by some bleeding-heart liberal judge somewhere?

The Constitution also doesn't include the right to buy products from foreigners, or to have children, or to read a book, or even to eat food to survive.

How could the Constitution have overlooked such basic human rights?

Because the Constitution isn't about what people can do; it's about what government can do.

The Constitution was created to spell out the limited rights or powers given to the federal government. And it was clearly understood that the government had no powers that weren't authorized in the Constitution.

The Bill of Rights

The original Constitution contained no Bill of Rights, because the authors believed it wasn't necessary since the Constitution clearly enumerated the few powers the federal government was given.

However, some of the Founding Fathers thought there could be misunderstandings. So a Bill of Rights was composed and some states ratified the Constitution only on condition that those amendments would be added to the Constitution.

Whereas the main part of the Constitution spells out the few things that government may do or must do, the ten amendments of the Bill of Rights spell out what government may not do. For example:

  • The government can't search or seize your property without due process of law,

  • It can't keep you in jail indefinitely without a trial,

  • It can't enact laws abridging the freedom of speech or religion, or infringing on the right to keep and bear arms.

And various other prohibitions on government activity are spelled out.

The ninth and tenth amendments were included to make absolutely sure there was no misunderstanding about the limited powers the Constitution grants to the federal government.

Amendment IX:

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

Amendment X:

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.

Now, where's the right to privacy?

It is clearly in those two amendments.

The government has no power to tell people what to do except in areas specifically authorized in the Constitution.

That means it has no right to tell people whether or not they can engage in homosexual acts; no right to invade our privacy; no right to manage our health-care system; no right to tell us what a marriage is; no right to run our lives; no right to do anything that wasn't specifically authorized in the Constitution.

(Notice also that nowhere in the Constitution does it say that government may violate the Bill of Rights if the target of its wrath is a non-citizen. Government isn't authorized to jail non-citizens indefinitely or deny them due process of law. There's a good reason for that, but that's another subject.)

Constitutional Ignorance

The irony in the Santorum diatribe is that if you were to ask him whether he believes the Constitution is a literal document as opposed to one that can be reinvented by judges and politicians I'm sure he'd say he's squarely on the side of the Constitution as a literal document.

And yet he doesn't even know what's in it. And he wants to reinvent it as a document that gives the government the power to regulate your personal life and invade your privacy.

This is pitiful. Politicians swear an oath to uphold and defend the Constitution, and they don't even understand what it is.

But then, most of them were educated in government schools, just like the rest of us. So why should we expect them to understand the importance of limiting governmental power?

When the Constitution is discussed in schools, the focus is generally on the constitutional procedures for appointing judges, electing politicians, terms of office, and other mundane matters.

There really are only two areas of the Constitution that every American should understand and understand well:

  • Article 1, Section 8 which enumerates the areas in which Congress has the power to legislate. You'll notice that no power is given there for Congress to pass laws regulating health care or education or charities or agriculture or any of thousands of other areas in which politicians now tell us how we must act.

  • The Bill of Rights which makes it plain that the government has no authority to do anything that isn't specified in Article 1, Section 8.

Perhaps the greatest mistake made in American history was in allowing government to educate our children. We can't expect government employees to teach our children that the one unique aspect of our heritage the one element that set America apart from the rest of the world was freedom from government.

Once government moved in on education in the 1800s, it was all downhill from there. In 1913, the income tax amendment was passed giving the federal government virtually unlimited resources to trespass in any area of our lives that politicians took a fancy to.

Our two greatest needs, if we are to regain the liberty the Founding Fathers bequeathed to us, are to:

Only when those goals are achieved will America once again be the land of liberty providing light and hope and inspiration to the entire world.

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Harry Browne was the Libertarian Party presidential candidate in 1996 and 2000, and is now the Director of Public Policy for the American Liberty Foundation. You can read more of his articles at HarryBrowne.org.