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Feb 23 2012

Santorum: Right to Privacy Doesn’t Exist

Rick Santorum claims, like nearly all conservatives, to be in favor of “smaller government.” That is a lie, of course, as he continues to prove every day that he advocates more and more restrictions on private morality in the name of his twisted religious views. And here he is in 2003 flatly declaring that there is no such thing as a right to privacy:

All the rights in the Constitution, which are individually based rights, according to our founders were not there for the individual’s gain, but the reason we established those rights was for the common good. The right to privacy is not the right to a common good. It’s a me-centered right, that obviously started in the sexual revolution with contraception and obviously quickly evolved to abortion, and now has found its way into the marriage debate. And all those acts that were self-giving acts, self-sacrificing acts, have been polluted by this right to privacy.

Welcome to theocracy.

31 comments

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  1. 1
    rowanvt

    By that logic, as long as I don’t steal anything, I can sit in a chair in his bedroom and he can’t get the police to remove me! After all, if there is no privacy, there is no private property which means I’m not trespassing!…. wait, if there’s no privacy and no private property… OH NO! He’s a COMMIE!

  2. 2
    Randomfactor

    He felt differently when he was pretending to live in the Pennsylvania district he was elected from. Just coming up the sidewalk and ringing the doorbell of “his” house was considered a violation.

    And if he feels privacy is a “me-centered” right, what does he think about the right not to self-incriminate?

    And furthermore, “WE” established those rights? That’s not what he said before, is it?

    You don’t establish rights, your recognize them.

  3. 3
    imrryr

    Whose property is my body? Probably mine. I so regard it. If I experiment with it, who must be answerable? I, not the State. If I choose injudiciously, does the State die? Oh no.

    -Mark Twain

    Mark Twain’s corpse for President, imo.

  4. 4
    'Tis Himself

    The first commentary on the Constitution was The Federalist Papers. One of the authors, Alexander Hamilton, argued against a Bill of Rights (in Article 84), feeling that if rights were listed explicitly, it would later be interpreted as a list of the only rights that people had. This objection was covered by the Ninth Amendment:

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

    There’s the right of privacy right there.

  5. 5
    The Lorax

    Whoa. Dude, just hold on a fucking minute. … did Santorum just say that the Establishment Clause is for the common good? As well as the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized?

    … wait just another fucking minute. If the 4th Amendment grants us the individual right of privacy, which Santorum admits, and is for the common good, which Santorum admits… either Santorum is contradicting himself, or he doesn’t agree with the 4th Amendment.

    We need a chart to keep track of which parts of the Constitution these folks disagree with. Hey, if we can get up to 51%, that means they disagree with the Constitution! They’re un-American! They’re…. oh fuck it, I can’t do this anymore.

    *walks away, mumbling something about seeing smarter potted plants*

  6. 6
    snoeman

    @ ‘Tis Himself, OM:

    It does seem as if Santorum reads the Constitution something like this:


    Amendment VII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    Amendment IX: ???

    Amendment X: STATES RIGHTS!!!

  7. 7
    interrobang

    Rick Santorum is in favour of small government. He wants the government so small it can crawl under the crack of your bedroom door, and/or watch you like a tiny fly on the wall, and/or get up in your lady- or man-business to make sure you’re not doing any unauthorized Sexcrime (pace George Orwell) with it.

  8. 8
    LightningRose

    Christ, what an asshole.

  9. 9
    gshelley

    It does seem that many conservatives really hate the ninth amendment. They seem to think that rights are given by the government and if it is not explicitly stated, then they don’t exist.
    Which seems to be in conflict with his other belief that the rights come from god not the government and if we don’t acknowledge this, we’ll be chopping off heads all the time.

  10. 10
    jamessweet

    In fairness to Santorum, I’ve never quite grasped how the 14th Amendment has been interpreted, particularly in regards to Roe v. Wade, to grant a right to privacy. Don’t misunderstand me: I think the decision was an unmitigated good, and I think that there ought to be a constitutional guarantee of a right to privacy, even though when I read it I am not sure I see one.

    And I think that, in practice, we are much better off giving SCOTUS wide latitude to interpret the Constitution even in ways which are seemingly at odds with the literal text. For instance, I think some very sensible gun control measures are in conflict with a literal reading of the 2nd Amendment, but at the same time I recognize that we’ll never ever in a billion years amend that part of the Constitution, so instead we have to rely on jurisprudence to reframe it in a more modern light — even if that means twisting the original words.

    Anyway, if anybody wants to try and explain it how you get a constitutional right to privacy out of the 14th amendment, I’ll listen… but I’ve heard it explained before and never quite grasped it all the way, so you might not succeed :)

  11. 11
    Randomfactor

    I think Griswold established a right to privacy–and yes, he’s against Griswold too.

  12. 12
    tommykey

    Jamessweet, with regard to abortion rights, I would have thought the 13th amendment banning involuntary servitude would be more relevant, because by preventing a woman from terminating a pregnancy, you are forcing her to serve the fetus in her womb.

  13. 13
    a miasma of incandescent plasma

    I bet he’d be fine with this belief if he was mandated to list his prayer contents, to make sure that he is not actively trying to plead to his god to do harm against the common good.

    I mean, having a private relationship isn’t claimed to be important or anything to most religious people, he’d be fine I’m sure making public knowledge what sins he’s confessed in prayer.

    Heck, combine this with the “proper” interpretation of the 1st amendment (“it’s freedom of religion not freedom from, therefore you must follow this government-approved religion, that’s what “of” means, right??”) we could even make sure he’s praying the proper way.

    /washes stupidity off keyboard

  14. 14
    tommykey

    But with regard to the 14th amendment, here’s the relevant section:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Pregnant women are citizens whereas the unborn are not. That’s probably why anti-choicers are trying to push fetal personhood to get around that.

    Not having read the Roe decision, I’m guessing that forcing a woman to carry a pregnancy to term is depriving her of her liberty to control her body.

  15. 15
    'Tis Himself

    The 14th Amendment forbids any state government from denying to any inhabitants of the state the rights they are due as citizens of the United States. The Supremacy Clause nullifies any constitutional provision (and, needless to say, any law) of any state which would seek to nullify this (or any other portion of the Constitution or its amendments). The 9th Amendment explicitly states that rights do not have to be explicitly stated in the Constitution or its amendments in order for the people to possess them. The rest of the Bill of Rights, particularly the 3rd, 4th and 5th Amendments clearly imply, and are arguably intelligible only under the assumption of, a general right of the citizenry to live their lives free from unreasonable intrusion by the government–in other words, a right to privacy.

  16. 16
    iknklast

    Tommykey:

    One problem with your interpretation is that the 14th Amendment specifically defines citizens as male; therefore, women are not citizens. This could, of course, be interpreted to mean that only MALE fetuses have any rights.

    I don’t agree with the definition, but it is there, and the Supreme Court has frequently interpreted it that way. Scalia believes that is the only correct interpretation. That’s why we fought so hard for ERA…only to have the Mormons interfere so their precious church dogma could remain enthroned in the constitution (along with the precious dogma of all other patriarchal religions).

    I think the court made the right decision, even if for the wrong (or at least, constitutionally wrong) reasons.

  17. 17
    RW Ahrens

    jamessweet;

    If this helps:

    The lower court’s decision in this case was that the Ninth Amendment, a part of the Bill of Rights, in stating that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” protected a person’s right to privacy. The Supreme Court chose to base its decision on the Fourteenth Amendment. Roe v. Wade was decided primarily on the Due Process Clause of the Fourteenth Amendment to the United States Constitution. A criminal statute that did not take into account the stage of pregnancy or other interests than the life of the mother was deemed a violation of Due Process.

    From:

    http://womenshistory.about.com/od/abortionuslegal/p/roe_v_wade.htm

    ’tis Himself was right, the ninth amendment is the place where that right is protected and reserved, but the 14th is where they actually construed the right to be based on, in that any law that ignored the mother’s rights was flawed and violated her rights.

    In other words, mama has a right to have an abortion within the first trimester as her right, unabridged by the State. In the second, the State can begin to judge the child’s rights to a greater degree, but only where it does not abridge the mother’s rights, and only in the third does the child’s rights begin to come to primacy, but still, not where it conflicts with the mother’s rights, especially her right to life.

    This seems to be widely misunderstood, because all of these abortion statutes are specifically designed to violate those rights – probably as a way to get them before the SCOTUS, and the opposition (the pro-choicers) just seem to be ignorant of these facts about Roe vs. Wade.

  18. 18
    'Tis Himself

    In the age of Rousseau, when our constitution was drafted, the general consensus was that in a state of nature, everyone did exactly what they wanted with no restraint whatsoever. A written constitution’s only function would be to restrict behavior that did not “promote the general welfare.” Anything else that does not impact the public weal or damage anyone else in some demonstrable way, is completely outside the ambit of those restrictions.

    Nowadays strict constructionists seem to think that in a state of nature, mankind lived in the most authoritarian regime imaginable, where their every action was prescribed, and the constitution merely offers a few specific rights that represent the maximum permissible deviation from the authoritarian utopia man was naturally destined to live in.

    I categorically reject the second argument. Anyone has an absolute right to do anything not specifically forbidden in the constitution. When some people appeared not to get the point, the 9th Amendment was written to make it clear.

  19. 19
    zxcier

    If you assume that premise that human life begins at conception, you are morally obliged to defend that life. Although I (and evidence) vehemently disagree with that premise, I can still respect the argument that follows from it.

    But arguments like this about some ill-defined “common good” trumping our right to privacy in our lives shows that for these guys, it’s NOT about saving innocent lives. It’s purely about enforcing their archaic view about how we should live our lives. Given that Frothy is so transparent about this clearly anti-Constitutional anti-citizen view, yet is still a front runner supported by a large portion of our population, I’m simply at a loss for how we can make progress as a secular nation.

  20. 20
    tommykey

    @16 iknklast.

    Section 1 makes no reference at all to gender. It specifically mentions “all persons.”

    Section 2 refers to males only in the context of apportioning representatives among the states.

  21. 21
    Chiroptera

    zxcier, #19: If you assume that premise that human life begins at conception, you are morally obliged to defend that life.

    I disagree. I used to hold that view, but I’ve been convinced that that view is faulty.

    Even if we consider that a fetus is a person and has rights and interests, that doesn’t make the rights and interests of the mother disappear.

    The fetus isn’t automatically entitled to have it’s rights protected. At most, it requires us to think about the competing rights and interests of the two parties and how to resolve the conflict.

    The problem is that when issues of rights and obligations (and ethics and morality in general) are considered, we look to analogous situations to help us determine how to chart our way in this. Unfortunately, there are very little situations completely analogous to a person living parasitically off another person’s physical body.

    The closest I can think of (and it’s not perfect by a long shot) is whether, if you are the only know compatible person, you should be forced to donate a kidney to save another person’s life. Not only do we have the potential side-effects and complications from the surgery to worry about, but we should also consider the situation if there was a social stigma attached to having only one kidney.

    Me, I probably would donate. But I wouldn’t enact it in law.

    Likewise, if I were pregnant and if I were convince that the fetus really was a person, I probably wouldn’t abort. But I wouldn’t enact a proscription into law.

  22. 22
    RW Ahrens

    As one reads the Roe vs. Wade decision, it becomes clear that SCOTUS was weighing the relative merits of both the rights of the fetus and the mother in a kind of balancing act as the term of the pregnancy advances.

    The State, as the “protector” of the fetus, is conceded to have an interest in two things: the life and health of the mother and the life of the fetus.

    The State is enjoined from doing anything in the first trimester to violate the mother’s rights to end the pregnancy with the medical concurrence of her physician, and could only regulate such things as the doctor’s qualifications, the facility where the procedure can take place, etc. with an eye towards the mother’s health. (Which explains the legality of such statutes in say, Kansas where they have added burdensome requirements onto the licensing of abortion facilities.)

    The second trimester adds in a greater consideration of the child’s right to life, still trumped by the mother’s rights and the physician’s medical expertise, and the child’s rights only begin to become paramount in the third trimester upon the idea of viability.

    Throughout this entire decision, the mother’s right to life is to be protected by the State, and this is clearly and repeatedly stated in the decision. At no time is the child’s life construed to trump the mother’s right to life, even in the third trimester!

    However, specifically as to the Court’s ruling on privacy, see this page:

    http://womenshistory.about.com/library/etext/gov/bl_roe_e.htm

    I think that their reasoning is pretty well explained. It gives a line of citations of previous court cases dealing with various aspects of individual privacy, and states that it feels that a woman’s decision to end a pregnancy is well contained within the confines of these cases and the issues they cover, and is further protected by the wording of the Ninth Amendment.

    This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

    I don’t see this as unclear at all.

  23. 23
    D. C. Sessions

    What’s fascinating is that he’s openly stating that the United States was from the beginning intended to be totalitarian: none of the freedoms in the Constitution were for individuals, but only to enable the masses to better serve the collective.

    And yet he’s popular with the “small government” crowd. Go figure.

  24. 24
    d cwilson

    @ ‘Tis Himself, OM:

    And the irony is that strict constructionists often try to lay claim to the title of libertarian.

  25. 25
    doktorzoom

    but the reason we established those rights was for the common good

    Oh, OK. So you’re saying that the individual right to own a firearm is subject to the owner’s participation in “a well-regulated militia,” eh Rick? Common defense and all that.

    The folks at the NRA will want to hear you explain that.

  26. 26
    eoraptor013

    It’s been many a decade since my Con Law class, but I do still remember the discussion of Roe v. Wade. The decision does state that a right to privacy is is nowhere expressly stated in the Constitution, but (without legal explanation) arises out of the “penumbras” of the Bill of Rights, the liberty guaranteed by the 1st Amendment, or some sense of due process privacy guaranteed by the 14th Amendment (see some of the other comments in this tread). And therein lies the huge problem with Roe v. Wade — though most of us visiting Ed’s blog likely agree with the outcome, the writing was poor, and good Constitutional reasoning non-existent.

    Wikipedia provides links to lots of very good analysis, pro and con, within the legal community.

  27. 27
    peterh

    From the article linked in the opening: “All the rights in the Constitution, which are individually based rights, according to our founders were not there for the individual’s gain…”

    They’re there for the individual’s protection, you moron!

    A quote from Wendell Berry might help you: “A person is free only in the freedom of other persons.”

  28. 28
    Michael Heath

    D.C. Sessions:

    What’s fascinating is that he’s openly stating that the United States was from the beginning intended to be totalitarian: none of the freedoms in the Constitution were for individuals, but only to enable the masses to better serve the collective.

    An off-topic riff. Gordon Wood’s Empire of LIberty has a chapter on the rise of American corporations. He reports that the original perspective granting charters to corporations was to promote the public good, and not just for institutions like colleges but also private for-profit business ventures. This whole passage reads like proto-socialism.

  29. 29
    Ace of Sevens

    You don’t have to go back 9 years. He said the same thing a few days before the Iowa caucuses.

  30. 30
    DaveL

    And furthermore, “WE” established those rights? That’s not what he said before, is it?

    Well, he thinks rights are God-given. So when he says “We establishe those rights”, he’s talking about the time he and ol’ J.C. got together to whip up some rights.

  31. 31
    zxcier

    @21 Chiroptera, I didn’t mean to imply the validity of defending the presumed human life over the rights of the mother, only that I can empathize with someone who makes that presumption feeling a moral imperative to defend it to some extent. Although that empathy disappears quick when they aren’t willing to even consider the vast evidence that life and especially human consciousness are a continuum even beyond birth.

    But the real point is that statements like these belie the sympathetic “pro-life” self labeling; these guys don’t really care about the life bit at all, only in punishing sinful (and raped, but really what’s the difference) women.

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