The privacy right is nowhere enumerated explicitly, yet is generally accepted as a critical right. In the constitutions of some states and of other nations, it exists explicitly. But for the US as a whole, it exists only implicitly.

The importance of privacy is evident in the First, Third, Fourth, and Fifth Amendments to the US Constitution, and is most famously found in the much-discussed “penumbra” of the Ninth Amendment.

Yet neither the Constitution nor its amendments anywhere says explicitly that Privacy is itself fundamental. Some see this as the whole purpose of the Ninth amendment, to assure that an oversight of this kind is not construed in favor of the Government at the expense of the People. But the omission still provokes controversy.

And so, yes, people fight about whether we do in fact have Privacy rights. Some say we don't. Some even think Privacy is just about hiding things, and that if you have nothing to hide, it's unimportant. (Such people have probably never been the victims of harrassment or stalking.) But even among those who think we do have a right to Privacy, its specific nature is elusive because it is nowhere spelled out.

This much I knew. But a new thought occurred to me. It's almost a detail. You might say it follows from the above and it's not new to you. But it was new to me. So I wanted to say it aloud, just to have said it.

Even if every person in the United States agreed that Privacy was intended to be guaranteed by the Ninth Amendment, it still has a lesser status as a right because an implication of this lack of being explicitly stated is that if it changes in subtle ways, there is nothing to measure the acceptability of that change against.

So if, for example, the government wants to read our email or peek at our bank accounts, how would we challenge that? Maybe if spelled out, a Right of Privacy would still allow this. Or maybe it would not. There is no way to tell.

And this also means that there is no supermajority requirement required to change it. Sure, it would take a supermajority to change the text of the Ninth Amendment, but in the shadows of its penumbra, where words give yield to fuzzy implications, a simple majority vote on a piece of legislation would be hard to rule unconstitutional.

And so it is a fragile right not just because it is hard to find but because it is hard to protect from subtle change.

We see this issue of drift routinely played out in the Abortion matter, and yet because we are divided on the issue of Abortion, some of us delude ourselves into thinking it's okay—the end justifies the means, as the desire by some to oppose Abortion is so strong that they're willing slash away at the Privacy right to do it. But the Privacy issue is even bigger than the Abortion issue, and we should not yield it lightly because what we give up we're unlikely to ever get back.