One of the issues that has come with the nomination of John Roberts to the Supreme Court is the issue of what “rights of citizens can be found in the “penumbra and emanations” of the Constitution”:http://www.brothersjudd.com/blog/archives/025343.html. The answer is, of course, none, because the Constitution is not about the rights of citizens and doesn’t really mention them much. Looking for rights in the Constitution is a complete inversion of the purpose of the document.
Let’s take Roe vs. Wade as an example. It’s clear that there is no “right to privacy” in the penumbra nor a “right to abortion” in the emanations. The problem is that this question (despite its popularity) makes no sense. The Constitution does not describe what citizens may do, it describes what government may and may not do. The question is never “does the Constitution grant a woman have a right to have an abortion?” but “by what enumerated power in the Constitution may the federal government regulate that activity?”.1
It seems to me almost all of the grey penumbral areas fade in to irrelevance if one takes the same view of the Constitution as the Founders, that it is about the government, not the citizens. After all, the Founders clearly stated “All men are endowed by their Creator with certain inalienable rights”. By their Creator, not the federal government. It should the federal government that has to answer the question “by what right do you do that?”, not citizens.
1 I’m sure someone will spout “but what if it’s considered murder?”. Well, what if it is? The federal government has very little to do with laws against any other type of murder. Effectively the only type of murder that’s against federal law is murder of a member / employee of the federal government. Say what you like about when life starts in a fetus, I’m very certain federal employment doesn’t start until after birth.