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Equal Treatment Under The Law

The U.S. Constitution and the right to privacy

By

Americans care deeply about their Constitution. 

If you’ve seen enough American movies, you have heard about the amendments.

Movies about free speech mention the first, guns for the second, and law dramas for the fifth.

If you have been following Ross Ulbricht’s case, you probably know that he was pleading the fourth to protect him from “unreasonable searches and seizures.”

Amendments are at the core of the American legal system. It is an excellent invention of Americans; it makes the social contract with the government very explicit and straightforward.

Unfortunately, according to the Freedom Forum’s most recent survey, only 9% of Americans can list their first five amendments. The amount goes down even more when it comes to the Reconstruction Amendments.

How the legacy of the Civil War led to the right to privacy

Reconstruction Amendments were ratified after the Civil War in the United States. These amendments were meant to secure the end of slavery, equal citizenship rights, and voting rights for African Americans. 

However, they are the most litigated part of the Constitution because they also secured many rights for marginalized groups in the United States. The reason is straightforward: these amendments provide a legal basis for the right to privacy and freedom of contract.

The U.S. Constitution does not have the right to privacy, and marginal groups are often denied equal treatment based on their race, sex, gender, ethnicity, or any other “marginal” features. 

The right to privacy and freedom of contract is essential for individuals to decide on many personal things in their lives. 

These decisions include what to do with their bodies, which medical procedures to have, whom to be partners with, how many children to have, and what kind of education to provide for their children… decisions that have nothing to do with the state, but everything to do with one’s self and immediate family.

The extension of the Constitution guarantees us essential rights

We rely on the Reconstruction Amendments because these rights are still not protected by the Constitution. 

However, they are secured by a handful of Supreme Court decisions made throughout the 1900s. For instance, the Jones v. Alfred H. Mayer Co. (1968) was a turning point for the Thirteenth Amendment jurisprudence. The Joneses were a Black American couple in Missouri who sued a real estate company for refusing to sell them a house. The Court decided that (excuse the language) 

“Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom—freedom to “go and come at pleasure” and to “buy and sell when they please”…At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live”.

Roe v. Wade is another one of those cases, based on the Fourteenth Amendment. This ruling argues that the right to privacy must exist if you look at the Constitution as a whole by synthesizing several different amendments. 

You may hear this called the “penumbra” of the Constitution, which basically means that an arrangement of rights can be derived, by implication, from other rights explicitly protected in the Bill of Rights. Among the Reconstruction Amendments, the Fourteenth Amendment, is the most litigated one. It led to important decisions such as interracial marriage in 1967, and same-sex marriage in 2015.

We must continue to stand up for the right to privacy

According to the latest draft opinion, Judge Samuel Alito explicitly argues that there is no such “penumbra” and no such right to privacy in the Constitution. 

Suppose this view among Supreme Court judges becomes popular; that could conceivably mean that the logical next step is for every other Supreme Court decision based on a “right to privacy,” rather than a direct command in the Constitution, to be overridden. In fact, we would say that it should be overridden for the sake of the consistency of the law.

The U.S. Constitution is notoriously difficult to amend: roughly 12,000 amendments have been proposed since the Constitutional Convention of 1787. Only 33 have gone to the states for ratification, and just 27 have come to fruition. 

The right to privacy and freedom of contract are not explicitly mentioned in the Constitution, but they are essential to our personal privacy, autonomy, and dignity. If the Constitution or the Supreme Court does not protect it, there will be no basis for their defense from a legal perspective. 

To classical liberals, laws are below the moral authority of every individual’s equal right to life, liberty, and property. However, the fight for liberty has a long history that needs to be upheld in the face of menace in every part of society.

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