Guided Research Understanding

I am researching for a research paper for my other class HIST 358 - U.S. History and Democracy. The topic for that paper is the right to privacy under the 5th, 9th, and 14th Amendments. As I'm looking at constitutional history and the decisions and reasons for why it exists as it does, I'm looking for the source material of the Founding Fathers that wrote the actual document. I'm also looking at the issue of privacy has been looked at in a legal context in the modern era. To that end, I'm looking at important decisions from the Supreme Court that have applied or interpreted the principles of the Constitution to modern questions and problems.

For an original source document, I choose one written by one of the Founding Fathers, Alexander Hamilton, wherein he argues for the ratification of the Constitution in his home state of New York, the Federalist Papers. Specifically, I choose #84 as it concerns whether or not to include a bill of rights in the Constitution as my research concerns those particular amendments. The Federalists arguments were not to include one as is expressed in this essay.

As for an actual case or application, one of the more famous is a ruling in the case of JOHN GEDDES LAWRENCE AND TYRON GARNER, V. STATE OF TEXAS. That particular case is quite famous as it stated that citizens have a right to privacy not only in their own homes but to relationships that adults will have when making decisions on all aspects in their relationships. As a summary, it struck down Texas' anti-sodomy law that, at that time, only applied to a same sex relationship. The source I found for this was the state's briefs and arguments submitted to the Supreme Court to uphold a lower courts ruling that the law was constitutional.

I was quite enlightened by the symmetry in what these sources contained. The arguments presented by Alexander Hamilton expressed the Federalists views that including a bill of rights and what rights the enumerated, could lead to assumptions about other rights not so enumerated. By way of example he uses the proposed proclamation of the freedom of the press. Why is it necessary to claim that it shall not be infringed when the Constitution does not give the government the power to restrict it anyway? Hamilton argues further that such an expression of right is actually dangerous for it could be implied that because the right was enumerated  that it is possible that other rights might be governed or restricted as the national government has that power.

It is in fact this same argument that the State of Texas uses when advancing that their anti-sodomy law doesn't violate the constitution as there is no specific right granted for people to engage in sodomy. Also, there is no other provision that precludes that people in question have ever had that right as it had never been enumerated such as the right to free speech. So, the brief filed by the state of Texas actually was the fears of the Federalists realized in the state of Texas felt it was in the governments power to regulate a private relationship.