One of my aphorisms is that when the government occasionally does the right thing, it's almost always for the wrong reason. A federal appellate court has struck down an Alabama prohibition against ummm..."marital aids," as unconstitutional.

This is an example of a desirable outcome from bad reasoning. The law was idiotic, but there is no "right to privacy" in the Constitution. Bork had it right here. One could argue (and I would) that there should be, but as the Founders wrote it, I don't believe there is (which is why Roe v. Wade was such a flawed decision). Regardless of the fact that it was a dumb law, this was raw judicial activism. It would be much better to amend the Constitution to put in a real right to privacy.

The right to privacy is derived as being a Constitutional protection under the Ninth Amendment and stems from the rights to privacy under the common law. That's jurisprudence, not activism.

Reluctantly, I tend to agree with Rand. I'm not aware of any major ruling on the matter that actually purported to find a right of privacy in the Ninth Amendment. In fact as a rule SCOTUS has acted as though the Bill of Rights numbered 1, then 3-8.

All of the major right to privacy cases are derived from a constitutional protection of the right to privacy under the ninth amendment. In the cases of states (such as Griswald v. CT and Roe v. Wade), the 14th Amendment is so construed as to protect the 9th amendment right to privacy.

I am not sure about the right to privacy being in the Constitution, as I see it implied by teh 9th as well as 4th amendments. But, even a right to privacy does not give one the right to commit murder or some other crime. Roe vr. Wade is flawed not because of its reliance on a right to privacy, but it says in effect that such a right allows one to commit murder. The central question has never been whether a woman's privacy should be protected, but whether the unborn is a human being and therefore subject to the same protections as all people are under the constitution.

The right to privacy is a red herring in Roe vr.Wade

Roe is flawed for both reasons.

>> All of the major right to privacy cases are derived from a constitutional protection of the right to privacy under the ninth amendment. In the cases of states (such as Griswald v. CT and Roe v. Wade),

What are some of the "right to privacy cases" that don't involve abortion or birth control?

The search and seizure cases don't apply - they're covered elsewhere. I'm looking for cases where the 9th, 10th, and the penumbra are the only constitutional obstacles to the proposed restrictions.

The closest that I'm remembering right now are the freedom of association (or freedom not to associate) cases. And, they're arguably not dependent on the 9th, 10th, and the penumbra. (Moreover, they're readily trumped by the commerce clause.)

It occurs to me also that the Supremes ruled several years ago that some southern state's (Alabama?) anti-sodomy laws were not unconstitutional. If that's the case, it seems to me that this regulation of bedroom behavior would fall in the same category. It will be interesting to see if they take this case.

Rand -

You're thinking of Bowers v. Hardwick, where anti-sodomy laws were deemed constitutional (5-4 vote) because the court in that case didn't think that the 9th Amendment applied to homosexual acts because they had always been illegal under the common law and in U.S. law.

As I read them, the entirety of the Fourth Amendment, the last two clauses of the Fifth, and the first section of the Fourteenth could never have been written, much less ratified, had legislators not believed in a right to privacy. I therefore cannot support a separate amendment in this regard, especially given the likelihood that it would be drafted by statists. Government's siege of privacy will be broken when narcotics prohibition is abandoned.