Undergirding the recent decision overturning Roe v. Wade is the contention that the original basis for the ruling- the right of privacy- was a weak basis for the original decision because of its absence from the Constitution. Justice Alito and his fellow conservatives argue that because the Constitution does not reference privacy that it therefore does not exist as a right.
I am neither an attorney nor a constitutional scholar but it would appear from a layman’s perspective that privacy was such an inherent right that permeated several elements of the Constitution that it needed no specific mention. Second amendment court rulings as well as arguments advanced from its advocates are premised on a person’s need to protect their privacy in their own homes. Forbidding the government from requiring the housing of troops in their homes is a privacy matter. Not having to testify against oneself is a privacy matter. Not having to reveal one’s voting choices is a privacy matter. Privacy is the very essence of freedom of conscience an often overlooked aspect of the freedom of religion clause.
The absence of an explicit reference to the word privacy does not mean it wasn’t an intended right. The Constitution acknowledges that there are other rights not enumerated. Much of the initial resistance by James Madison and others to including a bill of rights was the concern that anything not specified would be construed as not a right. I would ask Justice Alito where are the words corporation, women, financial contributions to political campaigns, etc. to be found in the Constitution? The document was expected to protect individuals, even women who at the time were second class citizens, from governmental intrusion into their private world.
The prevailing majority on the Court wants the Constitution to be a flexible instrument when it comes to a conservative political agenda but rejects arguments that the founders sought an evolving governing structure that accommodated an unknowable future. Most were prescient enough to understand that the United States could not protect its citizens within the limitations of their 18th century world.
Vincent De Sanctis