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The Constitution and privacy

JEFF JACOBY is correct that the right to privacy is not explicitly guaranteed in the Constitution (op ed, Nov. 9). He dismisses the court's ''penumbra theory," admittedly inaccessible to most of us, as ''gaseous." Let me call his attention to Justice Goldberg's reasoning in that case: ''To hold that a right so basic and fundamental and so deep-rooted in our society as the right to privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment . . . which specifically states that '[the] enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.' "

When Robert Bork was asked during his confirmation hearings in 1987 whether the right to privacy could be anchored in the Ninth Amendment, he replied that no one seemed to have a clear idea as to what that amendment meant. At that point, Bork frightened me, much as Jacoby's perspective does today.

The founders had sufficient humility to realize that the enumeration of certain rights might be used to deprive the people of others that were not being drafted in 1789. That is why they crafted the Ninth Amendment. To pretend that this amendment is bereft of meaning, as Bork, Jacoby, and other self-styled originalists do, is to distort the self-evident intention of the framers.

MARTIN QUITT, Professor emeritus of history, UMass-Boston

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