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Friday, April 02, 2004

The right to privacy

The pro-abortion forces think they have a monopoly on the term "the right to privacy," which means the right to kill the unborn. Very often some poll will come out showing that a supermajority of Americans support the right to privacy. And although no intelligent person believes that the right to privacy means the right to kill, a book I have been reading offers examples of what Americans traditionally regarded as the right to privacy.

Edward Bennett Williams, the preeminent lawyer of his generation wrote One Man's Freedom (Atheneum 1962). Before his 40th birthday, Mr. Williams represented, among other people, Jimmy Hoffa, Senator Joseph McCarthy, and Representative Adam Clayton Powell, Jr. His law firm remains prominent and stands as testament to his life's work - Williams & Connolly. The Index to this book lists six references to the "privacy, right to" - pp. 88, 91, 96, 97,102, 118.

Among the most notable as these: "We all have a vital stake in the preservation of the right to privacy - the privacy of the home, the privacy of your thoughts and words, the privacy of our conservations, both face to face and telephonic." Id. at 88. And "This [the Fourth Amendment] was the effort of this nation's founding fathers to protect the individual's right to privacy." Id. at 97

Chapter 6 (pp. 88-105) was titled, The Listeners at the Walls and deals with bugs and other surreptitious listening devices. Chapter 7 (pp. 106-121), The Party Line, argues that wire taps should be covered under the Fourth Amendment.

Certainly people may argue that allowing a doctor to cut open the skull of a fetus has to do with privacy (just as the person who commits murder in his own home may seek to do so privately) does not mean that they have the right to stake claim to the English language.

The living Constitution

Justice Kennedy recently said, "Had those who drew and ratified the Due Process Clause of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see laws that once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." Lawrence v. Texas.

But we don't hear these arguments as to other Constitutional provisions. No one says, Article I §2, cl. 2 ("No Person shall be a Representative who shall not have attained the Age of twenty five Years") really means that a person must have reached a certain level of maturity before reaching office. And that today, people who are 25 aren't nearly as mature as someone of the same age two-hundred years ago - which is clearly true - and therefore the age of qualification must be raised. Or that "the executive Power shall be vested in a President of the United States," Art. II, §1, cl. 1 should change with our times: we maybe need two Presidents instead of one. Finally (but not exhaustively) no one argues that the Seventh Amendment be adjusted for inflation. ("In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved [ ].")