Privacy and Property Rights

Whereas, whenever kings, instead of protecting the lives and property of their subjects, as is their bounden duty, do endeavor to perpetrate the destruction of either, they thereby cease to be kings, become tyrants, and dissolve all ties of allegiance between themselves and their people...
   Benjamin Franklin, Preamble to a Congressional Resolution, (Papers, 22:322)

Part 1: Privacy and Property

The word "privacy" cannot be found in either the Declaration of Independence or in the U. S. Constitution and the Bill of Rights. The word "private" occurs only once in these documents -- in the Fifth Amendment where it modifies "property."  Nevertheless, there is a right to privacy in the Constitution; and, contrary to recent Supreme Court logic, the right to privacy is guaranteed, not by some shadowy and ethereal "penumbra," it is guaranteed, and can only be guaranteed, by the right to property. Recent Supreme Court decisions, which have ignored the inextricable connection between the right to privacy and the right to property, imperil both of these rights. 

The Fifth Amendment, which deals with the legal concepts of the grand jury, double jeopardy, self-incrimination, due process and eminent domain, was written as a response to and as protection from the abuses that the American colonists had suffered under British rule. The Revolutionary War was not just about taxation and representation.  The British had set up special courts whose judges (and, often, juries) were Tories.  These courts ignored Colonial law and served at the will and for the bidding of the Crown.  The British army not only entered private homes without warrants, it confiscated private homes for quartering its troops.  The Fifth Amendment was written to prevent these kinds of abuses by the new government.[1]

The Fifth Amendment could have been written by a German philosopher.  It consists of a single run-on sentence that is 108 words in length - the longest sentence in the Constitution.  It begins "No person shall..." and then describes who can be held and tried how many times in which court for what. When we get to the last two clauses of the amendment we read  (remember it starts:  "No person shall..."): "... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.  (Italics mine.)

Notice in that first clause, called "the due process clause," that property is put on a par with life and liberty.  The government cannot kill us or put us in jail or take our property unless it follows specific legal procedures.  The second clause ("eminent domain") declares that the government cannot take our property unless it pays us for our property and unless it puts that property to public use

Furthermore, the word "nor," the first word of the eminent domain clause, is meant to be inclusive.  In other words, the government must follow the strictures of both the due process clause and eminent domain clause before it can take private property. 

The reasoning behind this part of the Fifth Amendment is not German philosophy; it is British philosophy; specifically, it is the philosophy of John Locke.  Most of the founders had read Locke's Two Treatises Concerning Civil Government. The idea behind the introductory quote above from Benjamin Franklin was taken directly from Locke's Second Treatise, Section 138, which reads, in part:

Men, therefore, in a society having property, they have such a right to goods, which by the law of the community are theirs, that nobody hath a right to take them, or any part of them, from them without their consent; without this they have no property at all.  For I have truly no property in that which another can by right take from me when he please against my consent.  Hence it is a mistake to think that the supreme or legislative power of any commonwealth can do what it will, and dispose of the estates of the subject arbitrarily, or a take any part of them at pleasure.

This idea was not limited to "Jeffersonians."  The Federalist, Number 54, which was probably written by Alexander Hamilton, states:

Government is instituted no less for protection of property, than of the persons, of individuals.  The one as well as the other, therefore, may be considered as represented by those who are charged with the government.

There are at least four reasons property rights were protected by the founding fathers. Property provides four things for the owner: (1) Security.  A home is a shelter from the elements and from hostile others.  (2) Income.  The farmer's field and the merchant's shop are the focus of their labor and the source of their income.  (3) Personal identity.  Each of us differentiates ourselves from others by the personal and real properties we chose to purchase. Property helps define us: we are what we buy.  Farmer's buy farmland.  Merchants buy shops.  People buy goods that are expressions of their personalities and their lifestyles.  (4) Privacy.  What we do within the walls of our home is, pretty much, whatever we chose to do.  It follows that the government's protection of my property is also the protection of my security, my income, my identity, and my privacy.

What happens when we step outside of our home or business and enter the public realm?   In this sphere, security is provided by the police (and, once upon a time, by the Second Amendment).  Income is protected by the government's enforcement of contract law.  (If I work for someone else on their property, I enter into a contract with that person for my wages.)  Personal identity, at least in terms of its expression through the purchase of property, is protected by the free exchange of goods and services.  (I can buy a mink coat for my wife in spite of PETA's protestations.)

But what of privacy?  How can the government protect our privacy once we step outside of the home?  Or can the government even protect our privacy in public?  In order to answer these questions we must first be able to define, in specific terms, what privacy is.


Part 2: What Is Privacy?

According to Webster's, "privacy" is "the state of being private;" and "private" is that which either (a) "belongs to some particular person or person," or (b) is "restricted to some particular person or persons."

Definition (a) is clearly a reference to some form of property.  What belongs to me are my belongings.  I can use the word "belong" in the metaphorical sense of property if I say to my daughter, "You belong to our family."  Since my daughter is not my property, what I mean when I say my daughter belongs to our family is that my daughter is restricted to membership in one particular family.

Looking closely at (b) we see that a thing, a person, or an activity can be restricted to some other particular person or persons in three ways: by definition, by tradition, or by law.  My daughter's family membership happens to fit all three.  She is a member of our family by definition, by tradition, and by law.

What we are most concerned with is the last option - the law.  How is a thing, a person, or an activity restricted to some other particular person or persons by the law?[2]

Once again, the first thought and example that comes to mind is property.  Things are restricted to some person or persons through ownership.  By enforcing legal contracts (say, that of purchasing a house), the government restricts the ownership of that home to the buyer.  So in restricting the ownership of a house to the buyer, the government protects the privacy of that buyer.

The restriction of one person to another person has a long history - mostly of abuse.  Not so long ago in the United States, some persons (slaves and, in some instances, women and children) could be "restricted" to other persons as property or chattel.  Since the Fifth Amendment clearly protects "life, liberty or property" these types of restriction cannot be constitutional.[3]

There are, however, many traditional types of voluntary restrictions between two parties.  The most obvious examples are marital and business contracts where one person consents to limit and share certain of his or her activities solely with another person.[4]

This brings us to the third, the most difficult and contentious, aspect: the legal restriction of private activities.  We can break this down into two questions:  (1) How does a government's restriction of a person's activities make those activities private?  And (2) how can the state insure that those private activities are protected?

In order to fully answer question (1) we would first have to settle a centuries old dispute:  Does the law forbid everything it does not specifically allow or does the law allow everything it does not specifically forbid? For the purposes of this discussion, we will assume that the American tradition follows the second interpretation of the nature of the law; i.e., private activities are lawful unless they are specifically prohibited.

Notice what follows from this assumption.  Private acts cannot be restricted, in any manner, by the state.  In a sense, all legal acts of individuals are private acts and the government, since the acts are legal, may restrict none of them.  State restriction of a person's activity does not make the activity private - it makes it illegal - and, thus, public.

Another example of a contract will help make this clear.  If I agree to build your house and you agree to pay me to build your house then I restrict my activity to the pounding of nails, etc., on your property.  The choice and the activity are private.  The state has nothing to do with the private nature of our agreement.  The government intervenes only if I fail to perform the promised activity or you fail to pay.

There are, of course, exceptions to this general rule.  Sometimes the state does directly restrict our activities - keeping our private activities isolated to specific private places.  This usually occurs out of concern for public health, public safety, or public peace.  But these restrictions, which appear to be exceptions to the rule that all individual activity is private activity, exist only on the basis of the principle that there is no privacy without property. 

Here are some examples of these exceptions and how the exceptions prove the rule.  I may be naked when I take a shower in my home or apartment but I may not run naked through a public square.  For reasons of public health and tranquility, my nakedness, and thus my privacy, is restricted by the state to my abode.  Similarly, I may drink alcohol in my home, or at the local pub, but I may not drink in my car while driving on a public road.  In this instance, for reasons of public safety, the government restricts my activity to a designated area, and, once again, in restricting my activity the government restricts my privacy.

This is the important point: without the existence and protection of private property there is no place for the government to restrict my private activities to.   This point needs to be reemphasized.  Whenever the state restricts a private activity, thus limiting the activity to a specific site, if there is no private property (no specific site) then there is no place in which that activity can occur.  Prisons are not private.[5]

Imagine we live in a regime that has promised to guarantee to each of its citizens an absolute right to a (naked) shower.  All private showers are immediately confiscated because someone might be able to get an unauthorized look.  The regime builds a series of single stall showers in a tightly controlled environment.  Guards are stationed at various locations to insure privacy.  But guards are only human - and curious - and they might steal a glance.   The guards must have supervisors.  But the supervisors might collude with the guards to take a peak, so we will need someone else to watch the watchers' watchers.  And so on, ad infinitum.

The moral of this story is that it is naive to assert the state can protect our privacy without protecting the intervening instrument of private property.  In a free state, there is no more efficient and effective vehicle that the government can use to protect privacy than by enforcing the right to private property.

We can now begin to answer some of the questions we have been considering in Part 2.  (1) How does a government's restriction of a person's activities make those activities private?   The answer, leaving aside the narrow issue of public health and safety, is that it does not and it cannot.  Generally speaking, the state's restrictions of a person's activities make those activities illegal and public - rather than private.  Even the Rose Bowl is a private event.  I can buy a ticket and go to the game or not.  My participation, and everyone else's participation, in the game is a private activity.  A speech given in a public square is a private event.  Both the speaker and the members of the audience are free to quit the activity at will.  The event may be called "public;" but the decision to attend is private.  The restriction of the participants' activity to the event is self-imposed.  A truly public meeting would be one in which the state forced all of its members to attend. [6]

(2) How can the state insure that private activities are protected?  The answer should be obvious: only by protecting private property.  Property is tangible and easily defined.  This makes property, relative to an abstract concept like privacy, easy to protect.  And this leads us to the answer to the question, "What is privacy?"  Privacy is an amorphous and intimate concept.[7]  But property is not. The government cannot guarantee our right to privacy, without protecting our right to property, because each of us continually and constantly redefines what privacy is as we go about the day-to-day activities of our lives.

Part 3:  What Has Gone Wrong?

In the early 1960s a married Connecticut couple visited their local Planned Parenthood office and asked for advice on contraception.  They were given a prescription for contraceptives.  Connecticut had a law at that time which prohibited the use of contraceptives.  In 1965 the Supreme Court, in Griswold v. Connecticut, 381 U.S. 479, held the Connecticut law unconstitutional.

The majority opinion in Griswold, written by Justice William O. Douglas, is, perhaps, the most bizarre instance of reason gone mad in the history of the Court.  Remember, the word "privacy" appears nowhere in the Constitution and the word "private" appears only in the Fifth Amendment.  Justice Douglas, however, found a right to "privacy" everywhere - except in the last two clauses of the Fifth Amendment.[8]

Where does the right to privacy come from?  According to Douglas, "...specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.  Various guarantees create zones of privacy."

Here is what Douglas asserted - translated in to plain English:  The rights guaranteed in the first ten amendments to the Constitution have shadows around their edges.  These specific rights give off a gas-like substance that affects their shadows by giving at least some shadows life.  These gases make at least one shadow (the right to privacy) a real and living thing.

This is palpable metaphysical nonsense.  It reminds me of the 18th century German mystic Emanuel Swedenborg:

"In addition, there exist spiritual spheres of life that emanate from each and every angel and envelop them.  By means of these emanations one can discern, even at a distance, what each angel is like, because these spheres flow out of the emanations into each individual's life..."[9]

According to Swedenborg, human morality emanates, like a gas, from our guardian angels.  According to Douglas, the right to privacy emanates, like a gas, from the Constitution.[10]

After Griswold, the Court's decisions about and reflections on "privacy" flow like tea from a kettle at an endless party with Alice in Wonderland.   Claptrap reigns in the ether emanating from the Court's penumbra.  Privacy is everywhere and nowhere and never where it really belongs - as a logical appurtenance of the right of property.

We have been treated to such prattle as Planned Parenthood v. Casey, 505 U.S. 833 (1992), in which the Court, pouring another cup of tea (and baldly stating "we have no doubt as to the correctness of [Griswold]"), wrote:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.[11]

It is hard to believe these words were written by educated adults - let alone members of the most important judicial body in the world.  Take that last sentence.  It cannot possibly be true that there is a right "to define one's own concept of existence, of meaning, of the universe."  If I had a right to define the meaning of "meaning" and you had a right to define the meaning of "meaning," you and I would never be able to talk to each other.

Pass the tea and switch chairs. In Lawrence v. Texas, 539 U.S. 558 (2003), Justice Kennedy favorably cited the exact passage just quoted from Planned Parenthood (part of the ever expanding gas of Griswold) in order to legitimize sodomy.  If it is true that there "is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," then everything is legal and everything is permitted. Friedrich Nietzsche called this "nihilism."

As the "right to privacy" emanates farther and farther into the ether, the right to property shrinks with each new Court ruling.  It started with Berman v. Parker, 348 U.S. 26.  In 1945 a large portion of Washington, D.C. was, essentially, a shantytown occupied by a large population of black Americans.  Parts of this community were visible from the Capitol.  Conditions were bad - but not nearly as deplorable as most of the hundreds of other black shantytowns which dotted the southern states.[12]  The United States Congress, unable to endure the view from its porch, set up a five member commission, the District of Columbia Redevelopment Land Agency, with orders to rid the area of "blighting factors or causes of blight."  Over 5,000 poor people, most of them black, were evicted from their homes and apartments.  Only a fraction of the land was put to public use.  The government sold most of it to land developers.

Having conquered the poor, the government next went after the rich.  In the late 60's, the State of Hawaii set up yet another commission.  It determined that, combined, the state and federal governments owned 49% of the total land of the Hawaiian Islands and that some 72 families owned most of the remainder (nearly 47% of the total).  Responding to those numbers, the State of Hawaii passed Land Reform Act of 1967.  The law forced the 72 families to divest themselves of huge chunks of property by allowing persons renting portions of these properties to petition the state government to have the property condemned.  The lessees could then buy the property.  The U.S. Supreme Court upheld Hawaii's law in Hawaii Housing Authority v. Midkiff, 467 US 229 (1984).  Land was literally taken from its owners, condemned, and then sold to its renters.  Neither the State of Hawaii, nor the U.S. government were required to sale anything.

Having ousted the poor and divested the rich, all that remained between the state and state control of property was the middle class.  Surely we were safe.  The government would never take our river front homes and sell them to, say, a giant pharmaceutical company.  Would it?

The Court, in Midkiff, did offer a promise in a proviso: "A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void."[13]  In Kelo et.al. v. City of New London et.al, 545 U.S. 469, (2005) that promise was broken.

A few years ago, Fort Trumbull was a quiet middle class neighborhood on the Thames River in New London, Connecticut.  Pfizer, one of the world's largest pharmaceutical companies began building a new research center on the edge of town.  The city of New London did not set up a new commission - it recalled an old one - the New London Development Corporation.  This was a private corporation.

The New London Development Corporation recommended acquiring fifteen privately owned homes on the bank of the river and turning the land into a parking lot, small shopping mall and luxury hotel - all for the benefit of Pfizer.  The city argued, not that the area was "blighted," but that the city's economy was "depressed."  The land would yield more tax revenues if the 15 families that lived in those river front homes were sent packing.  The U.S. Supreme Court agreed and our homes (middle class homes) will be torn down and the property sold to Pfizer and other business interests.

The Fifth Amendment has been turned on its head.  Remember it says, "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.  Every word of this amendment was violated in Kelo.  Private property was taken for the very specific purpose of private use. Pfizer is not a branch of government. And compensation can never be just if there is no due process of law.[14]  After Kelo there is no right to property guaranteed by the state.

The "privacy" party goes on and on in Wonderland.  The right to property has disappeared like the Cheshire cat - without the smile.

Part 4:  What Can Be Done?

The most frightening aspect in the aftermath of Kelo was the silence.  A few conservative congressmen did what they always do, shouted, "This shall not stand!" and then immediately left the rostrum to play golf with Jack Abramoff.  And liberals did what they always do; they shouted back, "Hurray for the Court!  Another victory for the community!"  But mostly there was silence.  "In another 5 to 4 decision from an ideologically divided Court..." the newspapers stories ended where they began.

Meanwhile, from Florida, to Vermont, to California, cities are quietly eyeing properties that - thanks to that pesky Constitution - have always been just out of their reach.   The first string of cases involve highly valuable property that has been owned for years by persons of modest income, persons who cherish their property because it sets them aside from other less fortunate people.  "Our little shack on the beach."  You get the picture.  These people are about to find themselves shackless.[15]

Interestingly, it is liberals, rather than conservatives, whose vested interests are most likely to be harmed by this initial fallout from Kelo.  Right now, in some small conservative community somewhere in America, some conservative city councilman is telling some other conservative city councilman something like this, "Block 37 - that's the one with the abortion clinic, the adult bookstore, and the gay boutique - would bring in a lot more revenue if we put in a Wal-Mart."  According to Kelo, the city can do it.

Liberals who think that the promise of the government is a guarantee of privacy need to think again.  Early in the Bush Administration, Attorney General John Ashcroft sought to gain some statistics on abortions.  He requested, and later subpoenaed, records from abortion clinics and hospitals.  He did not ask for the names of the women, only their ages, the number of abortions, etc.  He was fought tooth and nail by the clinics and the hospitals - which were private and had a fiduciary obligation to protect their clients.  If these abortions had been preformed by the state, all that Ashcroft would have had to do to get the information was pick up the telephone.

For the hospitals and clinics involved in the issue, it was a business decision related to their property to fight Ashcroft's subpoenas.  Few women would want to have an abortion preformed at a clinic that made the outcome and the name of the participant in the procedure public.  By refusing to give up the information, the clinics protected their profits, and by protecting their profits they protected their property.  Some may find this reasoning cold hearted; but it is the way that the world works.  There is no privacy without the intervening existence and use of private property.  In placing our property at risk the Supreme Court has, knowingly or not, placed our privacy at risk.

There are two possible solutions to this problem.  The first is for those who believe in the rights to privacy and property - and in the notion that the Constitution is a "living document."

A Court, grounded in the Fifth Amendment could have reached, in Griswold (and Roe v. Wade and, perhaps, even Lawrence, etc.), the same conclusions, with some minor changes, if it had relied upon the due process clause and, to a lesser extent, the eminent domain clause - applying the 14th Amendment as necessary.  As we have seen, privacy is, essentially, the specific activity of a specific person at a specific time in a specific place.  The state cannot easily protect the activity, nor can it control the time; but it can protect the place by protecting the property of and in the place.

Contraceptives are property.  A woman's body is her property (it belongs to her).  If an activist Court wants to go crazy expanding and protecting privacy it should at least do so in a manner that is meaningful and rational and does not depend upon the ideological makeup of the current Court and the fashionable view of what is and is not private.  This is not a particularly good solution; but it would establish a far more reasonable, and defensible, right to privacy than the one currently emanating from the gases of Griswold.

There are two related problems with this "activist" solution.  (1) I can read what is in the law books but I cannot read what is on the Court's mind.  Only anarchists and hard-core libertarians believe that most everything should be private and only the most rabid communists believe nothing should be.  The rest of us (99% of us) are somewhere in between.  How do we determine, on an issue-by-issue basis, where the line between private and public should be drawn?  We need some concrete starting point.

Some activity X is now illegal but, some of us will argue, activity X should be a private choice and legal.  How do we know that X is illegal?  We look it up in the legal code.  Those of us who want to enjoy the right to X must then set about convincing those whom we elect to change the law and allow us to X.  We can rationally debate the need for X because there is a preexisting definition of "not X" which gives us a foundation for discussion.

However, if the Court is the final arbiter in determining whether or not X is legal (and, at least in terms of privacy, it has been since Griswold). then we don't really know what we are talking about.  Is same sex marriage private?  Is polygamy?  How about incest?  Under the current system, you and I can debate all we want, and write nasty letters to our elected representatives, but it doesn't mean a thing - either politically or rationally.  I recently read an editorial that said something like, "Is same sex marriage legal?  We are waiting to hear from the Supreme Court."  This is theocratic, not democratic, speech.  In terms of understanding what is and is not private, we sit huddled at the foot of Mount Sinai wondering what's going on, and coming off, the list. 

Presently, the meaning of X is defined - not because one has "the right to define one's own concept of ... meaning" (as vapid as it is, that at least sounds democratic) - the meaning of X is defined by the Court.  After the Court announces the status of X all of our speech about X is rationally and politically ineffectual because it is ex post facto.

(2) We cannot predict which laws Congress will enact but we can do something about them.  We can replace the legislators who author our laws.  However, not only can we not predicate what decision the Supreme Court will render; we can do next to nothing about it.  Supreme Court justices are appointed for life and can only be removed if they are impeached.  No justice has ever been removed for writing an opinion.

So there are only three ways to change a Court's decision.  They can do it themselves by overruling it with a new decision.  We can change the Constitution by amending it.[16]  Or the Congress, if it had the courage, could limit the Court's jurisdiction.[17]  The first option is the only one used on any kind of consistent basis.

Both of these objections to judicial activism should frighten those who favor "a living Constitution;" but, since their people run the present Court, it doesn't.  If terrorists were someday to strike either the United States or Israel with a nuclear weapon we would be involved in the greatest religious war in history.  Our country would swing to the far religious right.  Given the wrong candidate at the wrong time, America's moderate majority could become a political President David Duke's defenders.  The Court could be packed with justices born again of vengeance.

Our "living Constitution" could become our living nightmare.  If a right to privacy lurks in the gases which emanate from the penumbras of today's "living Constitution" because five liberal judges say it does, then, using exactly the same logic, a right to exterminate Jews could be hidden in those same gaseous shadows tomorrow when five fascist jurists say it had been there all along. [18]  Such an outcome would be much more difficult to accomplish if the Court had had a long history of defending privacy by protecting property.  But it does not.

The second solution to our present dilemma is simple.  Let us debate, like the free people we supposedly are, what should be public and what should be private.  Let our elected representatives draw the line where the public ends and the private starts.  Then if, and only if, the law deprives us of our property, in its limitation of our privacy, let the Court declare that law unconstitutional.

Some of us will offer unsound arguments and our legislators will surely make mistakes.  But, if the Court has protected our property, and thus, protected our freedoms, our children can start the whole process over again. 

"Life, liberty and property."  A free people cannot have any one of those rights without having the other two.  And there is no right to privacy without all three.

Larrey Anderson is a philosopher and writer living in Idaho.  He can be reached at http://www.ldandersonbooks.com/


[1]The Fifth Amendment grant of eminent domain to the federal government was extended to the states via the 14th Amendment in 1897 in Burlington and Quincy Railroad v. Chicago, 166 U.S. 226.  Justice Harlan argued in his decision in the Burlington case:  "Indeed, in a free government almost all rights would become worthless if the government possessed an uncontrollable power over the private fortunes of every citizen."

[2] "Persons" and "individuals" should be understood herein as adult citizens of sound mind when they are not acting as agents of the state.  Also note that the traditional and the legal are sometimes intertwined.  Much of our contract law comes from the British Common Law and is, thus, traditional.  However, Common Law must meet constitutional requirements.

[3] If we assume that the document means what it says, and if we define person as I have in note 2 above (there is no definition of "person" in the Constitution), then this is the logical conclusion we must reach upon reading the Fifth Amendment.  One could argue that the "fugitive slave clause" in Article IV, the "three fifths" passage in Article I, Section 2, and all of Article I, Section 9, implied a right to property in another person - but that is an historical, as opposed to a philosophical, interpretation.  (This debate, which has been fierce in some scholarly circles, is rather pointless since the two clauses have been repealed and Article 1, Section 9 expired in 1808.)  I believe that President Lincoln was right when he said of our constitutional system of government in his Meditation on Proverbs 25:11, "All of this is not the result of accident.  It has a philosophical cause." This paper is a philosophical discussion of the meaning of the Fifth Amendment.

[4] Marriage is a civil contract according to the law.  The government restricts the parties only to the extent that it enforces the terms of the agreement.

In criminal cases the state has the right to and does restrict the life, liberty, and or property of the criminal.  This is not a civil contract between two parties; persons acting on behalf of and as agents of the state enforce criminal laws. 

[5] Recently passed stalking laws fit into this category of the state restricting a person's privacy.  These laws have been controversial and constitutional questionable because they attempt to place a state enforced restriction on the movement and activities of one person within the proximate area occupied by another person.  If I am a mile from you and moving in your direction am I stalking you? A hundred feet away? The constitutional tension between stalking laws, privacy, and freedom of movement and association is caused by the fact that such laws cannot be rationally linked to property. When we carefully examine issues of privacy we find that a right to property almost always provides the rational grounds for defining a right to privacy.

[6] A sound argument can be made that the First Amendment right to free speech is much more likely guaranteed by the protection of property than by the promise of the state.  In McConnell v. FEC, the Supreme Court denied private citizens both the right to free speech and the free exchange of goods and ideas when it upheld the constitutionality of the McCain/Feingold Act.  The state's promise of free speech rings hollow when its legislators are allowed to put their own reelections above open debate.

[7] A third definition of private is "intimate."

[8] The Fifth Amendment is mentioned twice in the opinion - both times very briefly. Douglas ignores both the due process clause and the eminent domain clause (where the word "private" actually appears in the Amendment) and instead indicates that the right to privacy is inherent in the self-incrimination section of the Amendment!

[9] De Coelo et ejus mirabilibus, et de Inferno, ex auditis et visis, Book I, Chapter 1, Section 17.

[10] Throughout Western intellectual history, gases, spirits, ethers, and the like, have been used as a substitute for a rational explanation.

[11] This infamous bit of blather was co-written by Justices O'Connor, Souter and Kennedy.  All three were appointed by Republican Presidents.  In essence, Planned Parenthood upheld Roe. v. Wade and the right to abortion as a right to "privacy."

[12] More than 60% of the homes in the contested area had electricity and more than 40% had indoor plumbing.  Such amenities were virtually non-existent in southern shantytowns in the 1940s.  Several successful businesses were located in the "blighted" area.  The lawsuit to stop the government's redevelopment of the area was brought by one of them, a department store that met local building requirements and could not be deemed "blighted."

[13] Apparently it did not occur to Justice O'Connor, who wrote the Midkiff decision, that taking land from lessors and selling it to a lessees is a purely private taking.

[14] It can be argued that taking property from person A and selling (or giving) it to person B (corporations are persons under most law) is just if person A cannot and does not use the property and person B can and will.  Socrates makes this argument in the Republic - and something like it was made in Midkiff .  However, in Kelo all of the property taken was being lawfully used by its owners.  (There was no "blight;" there were no significant unpaid taxes or liens, etc.)  In Kelo property was taken from middle class citizens, on the recommendation of an unelected commission, and sold to an extremely wealthy corporation.

[15] Justice Thomas predicted this in his dissent from the holding in Kelo:
The consequences of today's decision are not difficult to predict, and promise to be harmful.  ... Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purposes to any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities.  Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. ... The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse.  It encourages "those citizens with disproportionate influence and power in the political process, including large corporations and development firms" to victimize the weak.


Once upon a time, helping the weak and the poor was a liberal concern.

[16] This may, or may not, stop the Court.  On February 26, 1869, the Constitution was amended to read, in part, "...nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws."  Yet in Grutter v. Bollinger, 539 U.S. 306 (2003), the Court decided that it could wait another 25 years to enforce the clause.

[17] Article III, Section 2 of the Constitution states, in part, "...the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

[18] Those who doubt this possibility should revisit Dred Scott v. Sandford, Plessy v. Ferguson, and Korematsu v. United States.  F.D.R. ordered the internment of Japanese American citizens (which his hand picked Court upheld in Korematsu) and he was neither a religious nor a conservative leader.  Presidents must motivate the majority in a time of war - not simply for political reasons - they must appease the majority's grosser sentiments to spur them to war.
Whereas, whenever kings, instead of protecting the lives and property of their subjects, as is their bounden duty, do endeavor to perpetrate the destruction of either, they thereby cease to be kings, become tyrants, and dissolve all ties of allegiance between themselves and their people...
   Benjamin Franklin, Preamble to a Congressional Resolution, (Papers, 22:322)

Part 1: Privacy and Property

The word "privacy" cannot be found in either the Declaration of Independence or in the U. S. Constitution and the Bill of Rights. The word "private" occurs only once in these documents -- in the Fifth Amendment where it modifies "property."  Nevertheless, there is a right to privacy in the Constitution; and, contrary to recent Supreme Court logic, the right to privacy is guaranteed, not by some shadowy and ethereal "penumbra," it is guaranteed, and can only be guaranteed, by the right to property. Recent Supreme Court decisions, which have ignored the inextricable connection between the right to privacy and the right to property, imperil both of these rights. 

The Fifth Amendment, which deals with the legal concepts of the grand jury, double jeopardy, self-incrimination, due process and eminent domain, was written as a response to and as protection from the abuses that the American colonists had suffered under British rule. The Revolutionary War was not just about taxation and representation.  The British had set up special courts whose judges (and, often, juries) were Tories.  These courts ignored Colonial law and served at the will and for the bidding of the Crown.  The British army not only entered private homes without warrants, it confiscated private homes for quartering its troops.  The Fifth Amendment was written to prevent these kinds of abuses by the new government.[1]

The Fifth Amendment could have been written by a German philosopher.  It consists of a single run-on sentence that is 108 words in length - the longest sentence in the Constitution.  It begins "No person shall..." and then describes who can be held and tried how many times in which court for what. When we get to the last two clauses of the amendment we read  (remember it starts:  "No person shall..."): "... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.  (Italics mine.)

Notice in that first clause, called "the due process clause," that property is put on a par with life and liberty.  The government cannot kill us or put us in jail or take our property unless it follows specific legal procedures.  The second clause ("eminent domain") declares that the government cannot take our property unless it pays us for our property and unless it puts that property to public use

Furthermore, the word "nor," the first word of the eminent domain clause, is meant to be inclusive.  In other words, the government must follow the strictures of both the due process clause and eminent domain clause before it can take private property. 

The reasoning behind this part of the Fifth Amendment is not German philosophy; it is British philosophy; specifically, it is the philosophy of John Locke.  Most of the founders had read Locke's Two Treatises Concerning Civil Government. The idea behind the introductory quote above from Benjamin Franklin was taken directly from Locke's Second Treatise, Section 138, which reads, in part:

Men, therefore, in a society having property, they have such a right to goods, which by the law of the community are theirs, that nobody hath a right to take them, or any part of them, from them without their consent; without this they have no property at all.  For I have truly no property in that which another can by right take from me when he please against my consent.  Hence it is a mistake to think that the supreme or legislative power of any commonwealth can do what it will, and dispose of the estates of the subject arbitrarily, or a take any part of them at pleasure.

This idea was not limited to "Jeffersonians."  The Federalist, Number 54, which was probably written by Alexander Hamilton, states:

Government is instituted no less for protection of property, than of the persons, of individuals.  The one as well as the other, therefore, may be considered as represented by those who are charged with the government.

There are at least four reasons property rights were protected by the founding fathers. Property provides four things for the owner: (1) Security.  A home is a shelter from the elements and from hostile others.  (2) Income.  The farmer's field and the merchant's shop are the focus of their labor and the source of their income.  (3) Personal identity.  Each of us differentiates ourselves from others by the personal and real properties we chose to purchase. Property helps define us: we are what we buy.  Farmer's buy farmland.  Merchants buy shops.  People buy goods that are expressions of their personalities and their lifestyles.  (4) Privacy.  What we do within the walls of our home is, pretty much, whatever we chose to do.  It follows that the government's protection of my property is also the protection of my security, my income, my identity, and my privacy.

What happens when we step outside of our home or business and enter the public realm?   In this sphere, security is provided by the police (and, once upon a time, by the Second Amendment).  Income is protected by the government's enforcement of contract law.  (If I work for someone else on their property, I enter into a contract with that person for my wages.)  Personal identity, at least in terms of its expression through the purchase of property, is protected by the free exchange of goods and services.  (I can buy a mink coat for my wife in spite of PETA's protestations.)

But what of privacy?  How can the government protect our privacy once we step outside of the home?  Or can the government even protect our privacy in public?  In order to answer these questions we must first be able to define, in specific terms, what privacy is.


Part 2: What Is Privacy?

According to Webster's, "privacy" is "the state of being private;" and "private" is that which either (a) "belongs to some particular person or person," or (b) is "restricted to some particular person or persons."

Definition (a) is clearly a reference to some form of property.  What belongs to me are my belongings.  I can use the word "belong" in the metaphorical sense of property if I say to my daughter, "You belong to our family."  Since my daughter is not my property, what I mean when I say my daughter belongs to our family is that my daughter is restricted to membership in one particular family.

Looking closely at (b) we see that a thing, a person, or an activity can be restricted to some other particular person or persons in three ways: by definition, by tradition, or by law.  My daughter's family membership happens to fit all three.  She is a member of our family by definition, by tradition, and by law.

What we are most concerned with is the last option - the law.  How is a thing, a person, or an activity restricted to some other particular person or persons by the law?[2]

Once again, the first thought and example that comes to mind is property.  Things are restricted to some person or persons through ownership.  By enforcing legal contracts (say, that of purchasing a house), the government restricts the ownership of that home to the buyer.  So in restricting the ownership of a house to the buyer, the government protects the privacy of that buyer.

The restriction of one person to another person has a long history - mostly of abuse.  Not so long ago in the United States, some persons (slaves and, in some instances, women and children) could be "restricted" to other persons as property or chattel.  Since the Fifth Amendment clearly protects "life, liberty or property" these types of restriction cannot be constitutional.[3]

There are, however, many traditional types of voluntary restrictions between two parties.  The most obvious examples are marital and business contracts where one person consents to limit and share certain of his or her activities solely with another person.[4]

This brings us to the third, the most difficult and contentious, aspect: the legal restriction of private activities.  We can break this down into two questions:  (1) How does a government's restriction of a person's activities make those activities private?  And (2) how can the state insure that those private activities are protected?

In order to fully answer question (1) we would first have to settle a centuries old dispute:  Does the law forbid everything it does not specifically allow or does the law allow everything it does not specifically forbid? For the purposes of this discussion, we will assume that the American tradition follows the second interpretation of the nature of the law; i.e., private activities are lawful unless they are specifically prohibited.

Notice what follows from this assumption.  Private acts cannot be restricted, in any manner, by the state.  In a sense, all legal acts of individuals are private acts and the government, since the acts are legal, may restrict none of them.  State restriction of a person's activity does not make the activity private - it makes it illegal - and, thus, public.

Another example of a contract will help make this clear.  If I agree to build your house and you agree to pay me to build your house then I restrict my activity to the pounding of nails, etc., on your property.  The choice and the activity are private.  The state has nothing to do with the private nature of our agreement.  The government intervenes only if I fail to perform the promised activity or you fail to pay.

There are, of course, exceptions to this general rule.  Sometimes the state does directly restrict our activities - keeping our private activities isolated to specific private places.  This usually occurs out of concern for public health, public safety, or public peace.  But these restrictions, which appear to be exceptions to the rule that all individual activity is private activity, exist only on the basis of the principle that there is no privacy without property. 

Here are some examples of these exceptions and how the exceptions prove the rule.  I may be naked when I take a shower in my home or apartment but I may not run naked through a public square.  For reasons of public health and tranquility, my nakedness, and thus my privacy, is restricted by the state to my abode.  Similarly, I may drink alcohol in my home, or at the local pub, but I may not drink in my car while driving on a public road.  In this instance, for reasons of public safety, the government restricts my activity to a designated area, and, once again, in restricting my activity the government restricts my privacy.

This is the important point: without the existence and protection of private property there is no place for the government to restrict my private activities to.   This point needs to be reemphasized.  Whenever the state restricts a private activity, thus limiting the activity to a specific site, if there is no private property (no specific site) then there is no place in which that activity can occur.  Prisons are not private.[5]

Imagine we live in a regime that has promised to guarantee to each of its citizens an absolute right to a (naked) shower.  All private showers are immediately confiscated because someone might be able to get an unauthorized look.  The regime builds a series of single stall showers in a tightly controlled environment.  Guards are stationed at various locations to insure privacy.  But guards are only human - and curious - and they might steal a glance.   The guards must have supervisors.  But the supervisors might collude with the guards to take a peak, so we will need someone else to watch the watchers' watchers.  And so on, ad infinitum.

The moral of this story is that it is naive to assert the state can protect our privacy without protecting the intervening instrument of private property.  In a free state, there is no more efficient and effective vehicle that the government can use to protect privacy than by enforcing the right to private property.

We can now begin to answer some of the questions we have been considering in Part 2.  (1) How does a government's restriction of a person's activities make those activities private?   The answer, leaving aside the narrow issue of public health and safety, is that it does not and it cannot.  Generally speaking, the state's restrictions of a person's activities make those activities illegal and public - rather than private.  Even the Rose Bowl is a private event.  I can buy a ticket and go to the game or not.  My participation, and everyone else's participation, in the game is a private activity.  A speech given in a public square is a private event.  Both the speaker and the members of the audience are free to quit the activity at will.  The event may be called "public;" but the decision to attend is private.  The restriction of the participants' activity to the event is self-imposed.  A truly public meeting would be one in which the state forced all of its members to attend. [6]

(2) How can the state insure that private activities are protected?  The answer should be obvious: only by protecting private property.  Property is tangible and easily defined.  This makes property, relative to an abstract concept like privacy, easy to protect.  And this leads us to the answer to the question, "What is privacy?"  Privacy is an amorphous and intimate concept.[7]  But property is not. The government cannot guarantee our right to privacy, without protecting our right to property, because each of us continually and constantly redefines what privacy is as we go about the day-to-day activities of our lives.

Part 3:  What Has Gone Wrong?

In the early 1960s a married Connecticut couple visited their local Planned Parenthood office and asked for advice on contraception.  They were given a prescription for contraceptives.  Connecticut had a law at that time which prohibited the use of contraceptives.  In 1965 the Supreme Court, in Griswold v. Connecticut, 381 U.S. 479, held the Connecticut law unconstitutional.

The majority opinion in Griswold, written by Justice William O. Douglas, is, perhaps, the most bizarre instance of reason gone mad in the history of the Court.  Remember, the word "privacy" appears nowhere in the Constitution and the word "private" appears only in the Fifth Amendment.  Justice Douglas, however, found a right to "privacy" everywhere - except in the last two clauses of the Fifth Amendment.[8]

Where does the right to privacy come from?  According to Douglas, "...specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.  Various guarantees create zones of privacy."

Here is what Douglas asserted - translated in to plain English:  The rights guaranteed in the first ten amendments to the Constitution have shadows around their edges.  These specific rights give off a gas-like substance that affects their shadows by giving at least some shadows life.  These gases make at least one shadow (the right to privacy) a real and living thing.

This is palpable metaphysical nonsense.  It reminds me of the 18th century German mystic Emanuel Swedenborg:

"In addition, there exist spiritual spheres of life that emanate from each and every angel and envelop them.  By means of these emanations one can discern, even at a distance, what each angel is like, because these spheres flow out of the emanations into each individual's life..."[9]

According to Swedenborg, human morality emanates, like a gas, from our guardian angels.  According to Douglas, the right to privacy emanates, like a gas, from the Constitution.[10]

After Griswold, the Court's decisions about and reflections on "privacy" flow like tea from a kettle at an endless party with Alice in Wonderland.   Claptrap reigns in the ether emanating from the Court's penumbra.  Privacy is everywhere and nowhere and never where it really belongs - as a logical appurtenance of the right of property.

We have been treated to such prattle as Planned Parenthood v. Casey, 505 U.S. 833 (1992), in which the Court, pouring another cup of tea (and baldly stating "we have no doubt as to the correctness of [Griswold]"), wrote:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.[11]

It is hard to believe these words were written by educated adults - let alone members of the most important judicial body in the world.  Take that last sentence.  It cannot possibly be true that there is a right "to define one's own concept of existence, of meaning, of the universe."  If I had a right to define the meaning of "meaning" and you had a right to define the meaning of "meaning," you and I would never be able to talk to each other.

Pass the tea and switch chairs. In Lawrence v. Texas, 539 U.S. 558 (2003), Justice Kennedy favorably cited the exact passage just quoted from Planned Parenthood (part of the ever expanding gas of Griswold) in order to legitimize sodomy.  If it is true that there "is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," then everything is legal and everything is permitted. Friedrich Nietzsche called this "nihilism."

As the "right to privacy" emanates farther and farther into the ether, the right to property shrinks with each new Court ruling.  It started with Berman v. Parker, 348 U.S. 26.  In 1945 a large portion of Washington, D.C. was, essentially, a shantytown occupied by a large population of black Americans.  Parts of this community were visible from the Capitol.  Conditions were bad - but not nearly as deplorable as most of the hundreds of other black shantytowns which dotted the southern states.[12]  The United States Congress, unable to endure the view from its porch, set up a five member commission, the District of Columbia Redevelopment Land Agency, with orders to rid the area of "blighting factors or causes of blight."  Over 5,000 poor people, most of them black, were evicted from their homes and apartments.  Only a fraction of the land was put to public use.  The government sold most of it to land developers.

Having conquered the poor, the government next went after the rich.  In the late 60's, the State of Hawaii set up yet another commission.  It determined that, combined, the state and federal governments owned 49% of the total land of the Hawaiian Islands and that some 72 families owned most of the remainder (nearly 47% of the total).  Responding to those numbers, the State of Hawaii passed Land Reform Act of 1967.  The law forced the 72 families to divest themselves of huge chunks of property by allowing persons renting portions of these properties to petition the state government to have the property condemned.  The lessees could then buy the property.  The U.S. Supreme Court upheld Hawaii's law in Hawaii Housing Authority v. Midkiff, 467 US 229 (1984).  Land was literally taken from its owners, condemned, and then sold to its renters.  Neither the State of Hawaii, nor the U.S. government were required to sale anything.

Having ousted the poor and divested the rich, all that remained between the state and state control of property was the middle class.  Surely we were safe.  The government would never take our river front homes and sell them to, say, a giant pharmaceutical company.  Would it?

The Court, in Midkiff, did offer a promise in a proviso: "A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void."[13]  In Kelo et.al. v. City of New London et.al, 545 U.S. 469, (2005) that promise was broken.

A few years ago, Fort Trumbull was a quiet middle class neighborhood on the Thames River in New London, Connecticut.  Pfizer, one of the world's largest pharmaceutical companies began building a new research center on the edge of town.  The city of New London did not set up a new commission - it recalled an old one - the New London Development Corporation.  This was a private corporation.

The New London Development Corporation recommended acquiring fifteen privately owned homes on the bank of the river and turning the land into a parking lot, small shopping mall and luxury hotel - all for the benefit of Pfizer.  The city argued, not that the area was "blighted," but that the city's economy was "depressed."  The land would yield more tax revenues if the 15 families that lived in those river front homes were sent packing.  The U.S. Supreme Court agreed and our homes (middle class homes) will be torn down and the property sold to Pfizer and other business interests.

The Fifth Amendment has been turned on its head.  Remember it says, "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.  Every word of this amendment was violated in Kelo.  Private property was taken for the very specific purpose of private use. Pfizer is not a branch of government. And compensation can never be just if there is no due process of law.[14]  After Kelo there is no right to property guaranteed by the state.

The "privacy" party goes on and on in Wonderland.  The right to property has disappeared like the Cheshire cat - without the smile.

Part 4:  What Can Be Done?

The most frightening aspect in the aftermath of Kelo was the silence.  A few conservative congressmen did what they always do, shouted, "This shall not stand!" and then immediately left the rostrum to play golf with Jack Abramoff.  And liberals did what they always do; they shouted back, "Hurray for the Court!  Another victory for the community!"  But mostly there was silence.  "In another 5 to 4 decision from an ideologically divided Court..." the newspapers stories ended where they began.

Meanwhile, from Florida, to Vermont, to California, cities are quietly eyeing properties that - thanks to that pesky Constitution - have always been just out of their reach.   The first string of cases involve highly valuable property that has been owned for years by persons of modest income, persons who cherish their property because it sets them aside from other less fortunate people.  "Our little shack on the beach."  You get the picture.  These people are about to find themselves shackless.[15]

Interestingly, it is liberals, rather than conservatives, whose vested interests are most likely to be harmed by this initial fallout from Kelo.  Right now, in some small conservative community somewhere in America, some conservative city councilman is telling some other conservative city councilman something like this, "Block 37 - that's the one with the abortion clinic, the adult bookstore, and the gay boutique - would bring in a lot more revenue if we put in a Wal-Mart."  According to Kelo, the city can do it.

Liberals who think that the promise of the government is a guarantee of privacy need to think again.  Early in the Bush Administration, Attorney General John Ashcroft sought to gain some statistics on abortions.  He requested, and later subpoenaed, records from abortion clinics and hospitals.  He did not ask for the names of the women, only their ages, the number of abortions, etc.  He was fought tooth and nail by the clinics and the hospitals - which were private and had a fiduciary obligation to protect their clients.  If these abortions had been preformed by the state, all that Ashcroft would have had to do to get the information was pick up the telephone.

For the hospitals and clinics involved in the issue, it was a business decision related to their property to fight Ashcroft's subpoenas.  Few women would want to have an abortion preformed at a clinic that made the outcome and the name of the participant in the procedure public.  By refusing to give up the information, the clinics protected their profits, and by protecting their profits they protected their property.  Some may find this reasoning cold hearted; but it is the way that the world works.  There is no privacy without the intervening existence and use of private property.  In placing our property at risk the Supreme Court has, knowingly or not, placed our privacy at risk.

There are two possible solutions to this problem.  The first is for those who believe in the rights to privacy and property - and in the notion that the Constitution is a "living document."

A Court, grounded in the Fifth Amendment could have reached, in Griswold (and Roe v. Wade and, perhaps, even Lawrence, etc.), the same conclusions, with some minor changes, if it had relied upon the due process clause and, to a lesser extent, the eminent domain clause - applying the 14th Amendment as necessary.  As we have seen, privacy is, essentially, the specific activity of a specific person at a specific time in a specific place.  The state cannot easily protect the activity, nor can it control the time; but it can protect the place by protecting the property of and in the place.

Contraceptives are property.  A woman's body is her property (it belongs to her).  If an activist Court wants to go crazy expanding and protecting privacy it should at least do so in a manner that is meaningful and rational and does not depend upon the ideological makeup of the current Court and the fashionable view of what is and is not private.  This is not a particularly good solution; but it would establish a far more reasonable, and defensible, right to privacy than the one currently emanating from the gases of Griswold.

There are two related problems with this "activist" solution.  (1) I can read what is in the law books but I cannot read what is on the Court's mind.  Only anarchists and hard-core libertarians believe that most everything should be private and only the most rabid communists believe nothing should be.  The rest of us (99% of us) are somewhere in between.  How do we determine, on an issue-by-issue basis, where the line between private and public should be drawn?  We need some concrete starting point.

Some activity X is now illegal but, some of us will argue, activity X should be a private choice and legal.  How do we know that X is illegal?  We look it up in the legal code.  Those of us who want to enjoy the right to X must then set about convincing those whom we elect to change the law and allow us to X.  We can rationally debate the need for X because there is a preexisting definition of "not X" which gives us a foundation for discussion.

However, if the Court is the final arbiter in determining whether or not X is legal (and, at least in terms of privacy, it has been since Griswold). then we don't really know what we are talking about.  Is same sex marriage private?  Is polygamy?  How about incest?  Under the current system, you and I can debate all we want, and write nasty letters to our elected representatives, but it doesn't mean a thing - either politically or rationally.  I recently read an editorial that said something like, "Is same sex marriage legal?  We are waiting to hear from the Supreme Court."  This is theocratic, not democratic, speech.  In terms of understanding what is and is not private, we sit huddled at the foot of Mount Sinai wondering what's going on, and coming off, the list. 

Presently, the meaning of X is defined - not because one has "the right to define one's own concept of ... meaning" (as vapid as it is, that at least sounds democratic) - the meaning of X is defined by the Court.  After the Court announces the status of X all of our speech about X is rationally and politically ineffectual because it is ex post facto.

(2) We cannot predict which laws Congress will enact but we can do something about them.  We can replace the legislators who author our laws.  However, not only can we not predicate what decision the Supreme Court will render; we can do next to nothing about it.  Supreme Court justices are appointed for life and can only be removed if they are impeached.  No justice has ever been removed for writing an opinion.

So there are only three ways to change a Court's decision.  They can do it themselves by overruling it with a new decision.  We can change the Constitution by amending it.[16]  Or the Congress, if it had the courage, could limit the Court's jurisdiction.[17]  The first option is the only one used on any kind of consistent basis.

Both of these objections to judicial activism should frighten those who favor "a living Constitution;" but, since their people run the present Court, it doesn't.  If terrorists were someday to strike either the United States or Israel with a nuclear weapon we would be involved in the greatest religious war in history.  Our country would swing to the far religious right.  Given the wrong candidate at the wrong time, America's moderate majority could become a political President David Duke's defenders.  The Court could be packed with justices born again of vengeance.

Our "living Constitution" could become our living nightmare.  If a right to privacy lurks in the gases which emanate from the penumbras of today's "living Constitution" because five liberal judges say it does, then, using exactly the same logic, a right to exterminate Jews could be hidden in those same gaseous shadows tomorrow when five fascist jurists say it had been there all along. [18]  Such an outcome would be much more difficult to accomplish if the Court had had a long history of defending privacy by protecting property.  But it does not.

The second solution to our present dilemma is simple.  Let us debate, like the free people we supposedly are, what should be public and what should be private.  Let our elected representatives draw the line where the public ends and the private starts.  Then if, and only if, the law deprives us of our property, in its limitation of our privacy, let the Court declare that law unconstitutional.

Some of us will offer unsound arguments and our legislators will surely make mistakes.  But, if the Court has protected our property, and thus, protected our freedoms, our children can start the whole process over again. 

"Life, liberty and property."  A free people cannot have any one of those rights without having the other two.  And there is no right to privacy without all three.

Larrey Anderson is a philosopher and writer living in Idaho.  He can be reached at http://www.ldandersonbooks.com/


[1]The Fifth Amendment grant of eminent domain to the federal government was extended to the states via the 14th Amendment in 1897 in Burlington and Quincy Railroad v. Chicago, 166 U.S. 226.  Justice Harlan argued in his decision in the Burlington case:  "Indeed, in a free government almost all rights would become worthless if the government possessed an uncontrollable power over the private fortunes of every citizen."

[2] "Persons" and "individuals" should be understood herein as adult citizens of sound mind when they are not acting as agents of the state.  Also note that the traditional and the legal are sometimes intertwined.  Much of our contract law comes from the British Common Law and is, thus, traditional.  However, Common Law must meet constitutional requirements.

[3] If we assume that the document means what it says, and if we define person as I have in note 2 above (there is no definition of "person" in the Constitution), then this is the logical conclusion we must reach upon reading the Fifth Amendment.  One could argue that the "fugitive slave clause" in Article IV, the "three fifths" passage in Article I, Section 2, and all of Article I, Section 9, implied a right to property in another person - but that is an historical, as opposed to a philosophical, interpretation.  (This debate, which has been fierce in some scholarly circles, is rather pointless since the two clauses have been repealed and Article 1, Section 9 expired in 1808.)  I believe that President Lincoln was right when he said of our constitutional system of government in his Meditation on Proverbs 25:11, "All of this is not the result of accident.  It has a philosophical cause." This paper is a philosophical discussion of the meaning of the Fifth Amendment.

[4] Marriage is a civil contract according to the law.  The government restricts the parties only to the extent that it enforces the terms of the agreement.

In criminal cases the state has the right to and does restrict the life, liberty, and or property of the criminal.  This is not a civil contract between two parties; persons acting on behalf of and as agents of the state enforce criminal laws. 

[5] Recently passed stalking laws fit into this category of the state restricting a person's privacy.  These laws have been controversial and constitutional questionable because they attempt to place a state enforced restriction on the movement and activities of one person within the proximate area occupied by another person.  If I am a mile from you and moving in your direction am I stalking you? A hundred feet away? The constitutional tension between stalking laws, privacy, and freedom of movement and association is caused by the fact that such laws cannot be rationally linked to property. When we carefully examine issues of privacy we find that a right to property almost always provides the rational grounds for defining a right to privacy.

[6] A sound argument can be made that the First Amendment right to free speech is much more likely guaranteed by the protection of property than by the promise of the state.  In McConnell v. FEC, the Supreme Court denied private citizens both the right to free speech and the free exchange of goods and ideas when it upheld the constitutionality of the McCain/Feingold Act.  The state's promise of free speech rings hollow when its legislators are allowed to put their own reelections above open debate.

[7] A third definition of private is "intimate."

[8] The Fifth Amendment is mentioned twice in the opinion - both times very briefly. Douglas ignores both the due process clause and the eminent domain clause (where the word "private" actually appears in the Amendment) and instead indicates that the right to privacy is inherent in the self-incrimination section of the Amendment!

[9] De Coelo et ejus mirabilibus, et de Inferno, ex auditis et visis, Book I, Chapter 1, Section 17.

[10] Throughout Western intellectual history, gases, spirits, ethers, and the like, have been used as a substitute for a rational explanation.

[11] This infamous bit of blather was co-written by Justices O'Connor, Souter and Kennedy.  All three were appointed by Republican Presidents.  In essence, Planned Parenthood upheld Roe. v. Wade and the right to abortion as a right to "privacy."

[12] More than 60% of the homes in the contested area had electricity and more than 40% had indoor plumbing.  Such amenities were virtually non-existent in southern shantytowns in the 1940s.  Several successful businesses were located in the "blighted" area.  The lawsuit to stop the government's redevelopment of the area was brought by one of them, a department store that met local building requirements and could not be deemed "blighted."

[13] Apparently it did not occur to Justice O'Connor, who wrote the Midkiff decision, that taking land from lessors and selling it to a lessees is a purely private taking.

[14] It can be argued that taking property from person A and selling (or giving) it to person B (corporations are persons under most law) is just if person A cannot and does not use the property and person B can and will.  Socrates makes this argument in the Republic - and something like it was made in Midkiff .  However, in Kelo all of the property taken was being lawfully used by its owners.  (There was no "blight;" there were no significant unpaid taxes or liens, etc.)  In Kelo property was taken from middle class citizens, on the recommendation of an unelected commission, and sold to an extremely wealthy corporation.

[15] Justice Thomas predicted this in his dissent from the holding in Kelo:
The consequences of today's decision are not difficult to predict, and promise to be harmful.  ... Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purposes to any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities.  Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. ... The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse.  It encourages "those citizens with disproportionate influence and power in the political process, including large corporations and development firms" to victimize the weak.


Once upon a time, helping the weak and the poor was a liberal concern.

[16] This may, or may not, stop the Court.  On February 26, 1869, the Constitution was amended to read, in part, "...nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws."  Yet in Grutter v. Bollinger, 539 U.S. 306 (2003), the Court decided that it could wait another 25 years to enforce the clause.

[17] Article III, Section 2 of the Constitution states, in part, "...the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

[18] Those who doubt this possibility should revisit Dred Scott v. Sandford, Plessy v. Ferguson, and Korematsu v. United States.  F.D.R. ordered the internment of Japanese American citizens (which his hand picked Court upheld in Korematsu) and he was neither a religious nor a conservative leader.  Presidents must motivate the majority in a time of war - not simply for political reasons - they must appease the majority's grosser sentiments to spur them to war.