情報プライバシーを考えるための米国連邦憲法修正九条の考察

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タイトル別名
  • The Ninth Amendment in the U.S. Constitution and Informational Privacy
  • ジョウホウ プライバシー オ カンガエル タメノ ベイコク レンポウ ケンポウ シュウセイ キュウジョウ ノ コウサツ

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説明

This article argues that the U.S Constitution does not grant rights, it just recognizes them, and the Ninth Amendment is the most important amendment in the Bill of Rights. By help of my mentor, Prof. Dan Farber, and other scholars such as Suzanna Sherry, Akhil Amar, Dworkin, and Justice Kennedy in the Lawrence case in the Supreme Court, this author says that regarding informational privacy, the Ninth Amendment is an essential part of the American Constitution. The Ninth Amendment is directed against the federal government, and the Fourteenth Amendment is directed against state government. The term and history proves this view. Although both the Declaration of Independence and the Japanese Constitution include the term "the pursuit of happiness", the reader might notice that the U.S. Constitution does not have the term "the pursuit of the happiness". However, in spite of the lack of the term, the readers will realize that Japanese and the U.S. Constitutional law scholar can not follow the idea that denies the existence of unenumerated rights. For example, unenumerated rights stem from natural rights that have roots in common law, a part of the legal system. In the end of this paper, the readers will understand why we can not take the position of Scalia if we are faithful to the framer's Constitution. The formalist approach fails if we take a close look at the history of the Ninth Amendment. The rights, including informational privacy, are retained by the people.

収録刊行物

  • 法政論叢

    法政論叢 44 (2), 13-36, 2008

    日本法政学会

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