The Constitution doesn’t grant your rights — it protects them

(Because the Constitution is important, I’d like to further this dialog. – promoted by Voyageur)

      A relatively new Polster, ElliotFladen, has distinguished himself among our starboard stalwarts by posting reasoned arguments to support his views, rather than cutting and pasting boilerplate from some right-wing websites.  But while I respect him, I profoundly disagree with some statements he made in a recent exchange, in which I defended the right to martial privacy doctrine established in Griswold vs. Connecticut.

    Griswold, 381 U.S. 479 (1965) for those of you who like to look up such things, established a a right of privacy in the process of striking down a Connecticut law that banned the use of birth control by even married couples.


  ElliotFladen attacked that ruling, the precursor to the more famous Roe v. Wade abortion decision, in part because he found it at variance with an obscure labor law ruling upholding minimum wage laws.  I won’t go into that argument except to state that I have a masters degree in labor relations and am quite sure my knowledge of labor law and history far exceeds his.  I do, however, challenge his ending assertion in that discussion:  

“You need to understand two very simple facts of constitutional law.  (1) The constitution does not enshrine your policy preferences or mine.  I like contraception.  My wife and I have used it.  My girlfriends in the past have used it.  But just because I like it and I think it is SMART to use it does not mean that there is a CONSTITUTIONAL RIGHT TO IT.  (2) And if you believe that there IS A CONSTITUTIONAL RIGHT to contraception, you need to figure out the SOURCE of that right.”

    Let me make a couple of preliminary points.   First, Mr. Fladen, all caps is considered “shouting” on blogs and is also a bit jarring to read.  The portions you capitalized would have been better served by italicizing.

  Secondly, you are quite wrong to say the Constitution does not enshrine policy preferences.   It was written by white men who owned property and displays a decided preference to property and capital over labor – even going so far in its original form as to enshrine the right of white men to own black men and women as slaves.   This background is significant because while right-wingers love to assail “Judicial Activism” as some sort of left-wing heresy, the fact is that judicial activism goes back as far as the birth of the Supreme Court and has usually been right-wing activism aimed at upholding the rights of capital over labor – such as the decisions Fladen cites in which courts prohibited minimum-wage laws or limits on hours of work as unconstitutional limits on the right of contract.  Page Smiths eight-volume “People’s History of the United States” makes this point at length and I commend it to any serious student of American history.

   But let us turn now to Mr. Fladen’s rather irrelevant discussion about his wife and past girlfriends using birth control, which sets up his dual-edged claim:


“But just because I like it and I think it is SMART to use it does not mean that there is a CONSTITUTIONAL RIGHT TO IT.  (2) And if you believe that there IS A CONSTITUTIONAL RIGHT to contraception, you need to figure out the SOURCE of that right.”

Actually, that’s wrong on both points, and suggests a serious misunderstanding of what the Constitution is all about. In point of fact, it is misleading to suggest that the Constitution confers any individual rights.  Most of the rights granted by the Constitution proper are granted to states, not individuals: such as the right of each state to have two senators, regardless of its population.

    Even the so-called Bill of Rights doesn’t actually “grant” individual rights.   It assumes God gave you your rights and that governments will eventually try to take them away.   The Bill of Rights is thus less a grantor of liberties than a set of chains set upon those governments to make it difficult for potential oppressors to take away your God-given rights.

    So, Mr. Fladen, it is not up to me to find a constitutional right to contraception.   It is up to you to find an enumerated power that gives the state or federal government the right to send its Sex Police into my bedroom and pull off my condom or flush our birth control pills down the toilet!   Good luck with that.  

On further review, as they say in the NFL, Bad Luck with that!

   Mr. Fladen does have the grace to recognize that the majority opinion by Justice William O. Douglas found the right to marital privacy in the “penumbras” and “emanations” of other constitutional protections not the precise language of the document himself.  But he is on shakier ground by trying to pin the decision on due process provisions of the 14th Amendment, which are cited only in the concurring opinions of John Marshall Harlan II and Byron White.

This brings us to my favorite part of Griswold — the concurrence by Justice Arthur Goldberg, which uses the Ninth Amendment to strike down the Sex Police.

Ahh, the Ninth Amendment, this cranky conservative’s favorite part of the Bill of Rights, and the one that forms the basis for my notions set above.

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

   In both logic and math, the ninth amendment is followed by the 10th:

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.”

    So this, Mr. Fladen, is why I don’t waste time looking for a right to privacy, a right to contraception, or a right to abortion in the Constitution.   I don’t have to!  It’s up to you and anybody else who tries to take those rights away from me to find an enumerated power permitting you to do so.

        I’m an avid chess player.  Nowhere does the constitution give me the right to waste my days on the 64 squares.  But I don’t have to seek that right.   You have to find a way to take it away from me!  [And I must admit that, when playing White, the French defense has often robbed me of the pleasure of the game.  But that is the nature of this vicious game, not constitutional law;-)]

  The Constitution doesn’t grant anybody the right to be a Denver Broncos fan.  It doesn’t grant the right to watch Jeopardy.  It doesn’t guarantee the right to prefer Mozart to rap music. You have thousands of rights that aren’t mentioned in the Constitution – because they don’t have to be.

   Remember, whether the right you cherish is to birth control, abortion, chess, or rooting for the Orange Crush, you don’t have to look for a part of the Constitution that gives you that right.  It’s up to those who want to take your God-given rights away to search for the enumerated powers that allow them to take away those rights, and they have to get past the ninth and tenth amendments before they can even try.

  (FPE note:  As I said, I do respect Mr. Fladen.  If he would like to organize his own thoughts on constitutional law into Diary form, I shall happily promote it to further this discussion.)


23 Community Comments, Facebook Comments

  1. ElliotFladen says:

    Simply saying “precedent”, “precedent” does not show my argument is wrong.  It simply is stating why you disagree with it.

    And I’d throw in an important point – the oath a Justice or President takes is not to uphold precedent – it is to uphold the Constitution.

  2. ElliotFladen says:

    Pursuit of profit through voluntary transactions is part of liberty.  

  3. ClubTwitty says:

    See, the real world–again that tricky place most of us occupy–includes the courts as a third branch of government that does get to interpret the Constitution.  You may disagree with that, but that fact is in itself is irrelevant (to everyone but you).  

    Its settled law.  

    Can settled law be upended at some future time–through amendment, revolution, or the enumerated powers?  Sure.  They can also be changed by the courts.  And some of it no doubt should be.  

    But, what I think many are arguing here, is how you choose to read the Constitution is irrelevant.  How the courts read it is relevant.  Sorry, but that is the way it is relevant.  Unless you have something more than an opinion to support that it is just an opinion, and judging from the response you are getting a pretty shaky one.  

    You know what they say about opinions, right?

  4. VoyageurVoyageur says:

    Frankly, a single dissenter in a sea of learned justices may be right.  But you just saying that “In my opinion, everybody got the constitution wrong except for me, and I don’t care many times the Supreme Rules that I’m an idiot!” is something of an underwhelming argument.

      And you haven’t even addressed the question that only two justices even cited the 14th ament due process clause in their Griswold concurrences.   No wonder you ignore — it’s proof that you don’t know what you’re talkingt about.

      So put up or give it a rest — preferably the latter.  And actually, while it’s been quite a few years since I was in grad school, my labor law studies began in the Philadelphia Cordwainers case.   I doubt that you even know what it is without looking it up.   So, your uninformed opinion and your petulant insistence that only you are right despite 200 years of precedent (Marbury) or 75 years (minimum wage) justifies my calling you a fool.  

  5. ClubTwitty says:

    My wireless keyboard is dropping letters and misbehaving.  Honestly.  I do not claim any inherent, implied, derived, or invented right to own a functional keyboard, but this one is a POS.  

  6. VoyageurVoyageur says:


    [note an unbecoming sarcasm is creeping into this.]

  7. VoyageurVoyageur says:

    skipped “liberty”

      read it and weep:

      “Life, liberty and the pursuit of happiness.”

  8. VoyageurVoyageur says:

    and yes, that, along with the confusion you exhibit, are signs of dementia.  

  9. Old Time Dem says:

    For that matter, what did I write that is contradictory?  Or off-point? Or vitriolic?

    Come on front page guy–try to respond with something other than insults.

  10. ElliotFladen says:

    But whatever – you’ve chosen to go personal in this thread.  You’ve chosen to ignore legal scholars such as Gunther and Sullivan, both of whom are highly respected.  You’ve placed all your eggs in the basked of precedent (which will be interesting to see how you handle cases like Citizens United going forward).  

    If you want to resume this discussion in the future, let me know.  In the mean time, I’ve got work to do and a daughter who is having an alergic reaction.  

  11. ClubTwitty says:

    something some lawyer wrote about.  

    Yeah, you have really made your case.  Let me sum it up:

    Someone said so. Someone who is important, BTW.  At least according to some people, a lot I claim.  So there.

    I’ll have to think about it a while, now that it has been laid out clearly.  

  12. ClubTwitty says:

    Valentines Day is just around the corner…

  13. DavidThi808DavidThi808 says:

    When you say the feds have no business in your bedroom based on both the 9th and/or privacy, I think you have a very good argument there. So the feds cannot forbid birth control from that.

    That is a limit on the feds power. And it does raise the question of how can the feds then outlaw drugs.

    But to then use that same basis to assert rights. That’s a very different thing. Saying that people have the right to an abortion is not the feds staying out of the picture, it’s the feds legislating.

    It’s in creating those rights where I think the courts are encroaching on territory that is rightly that of the legislatures.

    I also think, where we are in the grey areas, that the courts should leave it to the legislature. When the court “finds” a right, that’s a benevolent dictatorship. When the legislature creates a right through law, that’s democracy.

  14. ClubTwitty says:

    Brown v. ?

    Re: this thread, I think the argument is the feds (ie via the court, a Constitutional branch of government considered a critical check in a ‘checks and balances’ type democracy) can say the state cannot outlaw certain things based on those inherent Constitutional protections that belong to all Americans whether an Alabaman or a Wisconsinite.  

    And re: abortion, are you saying that the individual sanctity of your bedroom (and your theoretical condom usage to continue the example) is more non-violate than the individual sanctity of a woman’s body?

    Please explain.

  15. Old Time Dem says:

    You ain’t got nothin’ but a chip on your shoulder and shit for brains.  Fuck off, asshole.

  16. VoyageurVoyageur says:

    It must be hell living in that remnant of a mind that still shows flashes of a former brilliance.

  17. Old Time Dem says:

    What a douche.

  18. PERA hopeful says:

    He was the minister to France and was out of the country from 1785 to 1789.  He was not present during the Constitution’s framing.

  19. PERA hopeful says:

    U.S. Supreme Court Justice William Paterson was a delegate to the Constitutional Convention, and he was on the Court when it voted unanimously in Marbury v. Madison.

  20. DavidThi808DavidThi808 says:

    As for Brown, that had a very good basis in constitutional law. All they had to find was that separate was inherently unequal. No invented right, just a finding of fact.

  21. ClubTwitty says:

    ‘just a finding of fact’ ??

    The more you post the more you confuse me.

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