Since the last time we discussed this, I took some time to read the segments of the Virginia Constitutional Convention debates which dealt with the Bill of Rights. It was interesting to see which rights various of the Founding Fathers thought we had.
Rather than try to boil it down, I commend the exercise to you. It's relatively easy to do using the Library of Congress website.
Here is the link to the collection of state debates, published as Elliot's Debates. Virginia's debates are in volume 3.
memory.loc.gov
They did not expressly call any right "privacy" but they certainly discussed the right to be left alone from excessive government interference.
See, e.g., Brandeis' dissent on the Olmstead case:
"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."
It's a misnomer to say that Roe v. Wade created a "right to abortion." It found the right to not be prosecuted by the state for obtaining an abortion or performing an abortion during early pregnancy. That's the real crux of Roe v. Wade -- can the state prosecute someone for obtaining an early abortion? Or do women have a right to be left alone to make their own decision during early pregnancy?
The Founding Fathers would have said yes, because that was, in fact, the state of the law at the time the Constitution was enacted. Abortion prior to quickening (15 - 20 weeks gestation) was not illegal in any of the British colonies or in the states prior to about 1860.
ncbi.nlm.nih.gov
The Constitution does not enumerate all rights, but it expressly states that the people are the repository of all power which is not delegated to the Federal government or the state governments. The right to be left alone is not an enumerated right, but it is an ancient right according to the common law. |
