Strict Constructionists and Privacy

Last weekend, Judge Harold DeMoss of the Federal Court of Appeals for the Fifth Circuit offered an op-ed in the Houston Chronicle rejecting the notion of a constitutional right to privacy. My initial reaction at reading the article was "how did this man become a judge" -- I was that shocked.  On a second read, however, I found some begrudging agreement with a strict constructionist -- a rarity in my universe.

Judge DeMoss starts out predictably enough -- searching for the word "privacy" in the U.S. Constitution and not finding it.  He then makes a valiant effort to sidestep the Ninth Amendment (reserving unenumerated rights to the citizens) by arguing that the judicial recognition of unenumerated rights violates the Constitution.  In other words, people may have unenumerated rights but the courts can't recognize or protect them.  To the extent that "natural law" exists, this argument strikes me as a huge error in logic -- if the Ninth Amendment means anything, then the courts have to be able to protect the rights retained by the people despite the lack of enumeration. (A subsequent letter to the editor makes this point with somewhat more vitriol.)

In the end, however, I agree with Judge DeMoss that the best way to defend privacy is to create an affirmative right rather than relying on the unenumerated penumbras and emanations of the Ninth Amendment.  I would look to the more standard amendment process, despite the hurdles -- but Judge DeMoss advocates a direct national referendum. I don't believe that Congress would approve a national referendum this year -- there's no way the House wants to encourage turn-out at the polls when every seat is theoretically (and some truly are) in play -- but I can see movement that would turn the issue over to the states for ratification.  Anyway, if strict constructionists have begun advocating for change, then perhaps there's a hope for all of us.