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to what the words meant at the time theywere written. Justice Scalia interprets theConstitution in a way that is strict, that is, if a right is not specifically stated, then such aright does not exist.Here’s how these different approachesplay out in cases before judges. The FourthAmendment to the Constitution states that“The right of the people to be secure in theirpersons, houses, papers, and effects, againstunreasonable searches and seizures, shallnot be violated, and no Warrants shall issue, but upon probable cause, supported by Oathor affirmation, and particularly describingthe place to be searched, and the persons orthings to be seized.”So, what does it mean to have a right to beprotected against an “unreasonable” searchand seizure? What was “unreasonable” over200 years ago when the Constitution was writ-ten referred to constables or soldiers enteringa person’s home. The reason for the FourthAmendment was that under the EnglishCrown, at any given time, government offi-cials could come into your house withoutwarning to search for whatever they wanted.The drafters of the Constitution thought thatthe right of privacy was so important, it wasincluded in the Bill of Rights. However, it isclear that “unreasonable” is a word whosemeaning must change over time.Viewing the Constitution as a living, breathing documents allows for the law toadjust to changing times and advancementsin technology. Today, instead of a constablecoming into your home, helicopters withheat sensors can hover above your house and“search” it to see how many people are inthere, and even track the movements of theseindividuals. The Supreme Court has inter-preted the Fourth Amendment to excludethese helicopter searches without a warrantas being unreasonable.The drafters certainly did not anticipatethe internet or email. So, because the words“internet” or “email” are not in the FourthAmendment, under the strict constructionistapproach, it could be argued that the gov-ernment would be permitted to simply hack into all of our electronic accounts withoutrecourse. Common sense tells us that thedrafters of the Constitution would want it to be interpreted in a way that would allow thelaw to develop as the country did.Another example is the copyright andpatent provision in the Constitution whichstates “to promote the Progress of Science anduseful Arts, by securing for limited Times toAuthors and Inventors the exclusive Right totheir respective Writings and Discoveries.”If you were to consider the word “writing”as a strict constructionist, then 200 years agoall “writings” were books and papers draftedwith a quill and ink. This interpretation wouldeliminate protection for all computer soft-ware, computer generated art, photographs,and other new forms of technology. Again,common sense would tell us that “writing” isa term that is subject to interpretation and can be construed to include the way that millionsof Americans write today.The most contentious way these two formsof interpretation play out is in the area of awoman’s rights regarding her body and abor-tion. Republicans argue that the Constitutiondoes not provide a “right” to privacy. Theypoint to the Second Amendment that sayswe all have a “right to bear arms,” and argueif the drafters wanted to confer a right, theywould have said so. Therefore, because thedrafters did not specifically say a woman hasa right to privacy with respect to her body,no such right exists. However, the14th Amendment of the Constitution alsoprovides that “. . .nor shall any State depriveany person of life, liberty, or property, withoutdue process of law; nor deny to any personwithin its jurisdiction the equal protection of the laws.”Herein lies the dilemma. What is Liberty?Liberty has been defined as “a right or immu-nity to engage in certain actions without con-trol or interference.” It has also been definedas “the right and power to act, believe, orexpress oneself in a manner of one’s ownchoosing.” When the Supreme Court ruledon Roe v. Wade, in 1973, the Court ruledthat privacy, a woman’s right to privacy inher own body is a part of liberty cannot beinfringed upon.Think about the right to privacy as aninherent or “natural law” that is somethingthat simply goes without saying. We are all born free. We are all born with a right to livein our bodies free from government interven-tion. That seems natural. It is self-evident,and you didn’t need to go to law school tofigure it out. This natural law was the basisof our Declaration of Independence signedin 1776 which cited “the Laws of Nature andof Nature’s God. . . .” The Declaration goeson to say “We hold these truths to be self-evi-dent, that all men are created equal, that theyare endowed by their Creator with certainunalienable Rights, that among these are Life,Liberty and the pursuit of Happiness.”.Privacy is a part of liberty. Would we beliberated if the government could tell us howwe can treat our body, tell us we can’t be fat,skinny, or somewhere in between?Think about this in a different context.Say tattoos. With the tattoo making a come- back and sweeping the country, would anyone of us agree with a law prohibiting them?Of course not. Why? I argue it is because onsome level we know that our bodies are oursand that “natural law” compels us to knowthat government--created by us--working forus--does not have the authority to tell uswhether to get a tattoo or not.But in the context of abortion and a wom-an’s right to privacy, it is the Republicanswho seek to impose their extreme, rightwing, zealous religious beliefs upon all of us and ask Justices on the Supreme Court toread the Constitution in a way that supportstheir religious and moral agenda rather thanprotect the right of privacy for all Americans,including women.But the Republicans are not being intel-lectually honest. They like judges when theyinterpret the Constitution in a way that theylike. A review of the Bush-Cheney torturememos proves this. These memos show thatto support torture policies, they had theirlawyers strain to expand words and interpretthe Constitution in a way that satisfied theends they were looking to achieve. Whereis the outcry from Republicans about thisexpansive view of our Constitution?Like the last two national elections, theRepublicans will lose this fight. This is agreat opportunity for Republicans to furtheralienate woman and Hispanics, and proveto the American people that they are a partyof old, white men bent on imposing one setreligious beliefs on all of us. They lost theHispanic vote in the last election. They lostthe female vote in the last election. So myadvice to Rush, Dick, Rove, and Gingrich,kept it up, please.
Mark Gould is an attorney living in Denverwith his wife, Therese, and their terrier, George. Mark’s practice focuses on insurance claims,automobile collision claims, bad-faith insuranceclaims, commercial insurance claims, and he alsoprovides pro bono legal assistance to those whoare unable to afford an attorney. If you have anyquestions or would like any reprints of this article(or others), you can reach Mark at: 303-832-2393or mark@markgouldlaw.com
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