September 18, 2005
ANTI OR ANTE, EITHER WORKS:
The Supreme Court's Private Life (ROBERT P. GEORGE, 9/18/05, NY Times)
WHEN John Roberts, President Bush's nominee for chief justice of the Supreme Court, told the Senate Judiciary Committee last week that "the right to privacy is protected under the Constitution in various ways," some saw this as contradicting a memo he wrote while serving in the Reagan administration in which he referred to the "so-called 'right to privacy.' " The confusion may stem less from Judge Roberts's lack of candor than from the political and legal morass brought on by a string of dubious decisions by the Supreme Court over the last 40 years.While the word "privacy" does not appear in the Constitution, this does not mean privacy rights are not protected. Certain provisions plainly protect people against governmental intrusion, like the Fourth Amendment's ban on "unreasonable searches and seizures." And these provisions have implications that extend beyond what the framers could possibly have envisioned; by logical extension, the Fourth Amendment protects people's electronic files just as it protected the parchment letters of the late 18th century.
Nearly everyone recognizes these privacy protections. Where dispute breaks out is on the question of whether the Constitution contains a generalized right to privacy of the type used by judges to invalidate laws prohibiting contraception, sodomy and abortion.
The idea of a general constitutional right to privacy has wide public support, especially in liberal circles where people approve of the uses to which it has been put. But even supporters have to admit that judges who have invoked this putative right have been unable to identify a constitutional basis for it. Tellingly, none has asserted that the framers and ratifiers intended to create a generalized privacy right in whose name abortion, for example, could be immunized from legal regulation. Before the Supreme Court's decision to inject itself into the abortion fight, it was widely considered the right of legislatures to determine such matters.
Well, the Senators were so concerned about stare decisis in privacy cases it seems safest to return to the status quo ante Griswold. Posted by Orrin Judd at September 18, 2005 1:44 PM
The only meaningful precedents are from the post new-deal era. Stare decisis is like bi-partisanship: it's only respected when it agrees with the pre-concieved notions of the left.
Posted by: Tom C., Stamford,Ct. at September 18, 2005 1:56 PM"Tellingly, none has asserted that the framers and ratifiers intended to create a generalized privacy right ..."
Of course not, since no one could have the right to do illegal things simply because they were done in private.
![[TypeKey Profile Page]](http://brothersjuddblog.com/nav-commenters.gif)
at September 18, 2005 4:30 PM
Roberts' answer was precisely the same as Bork, in that Bork also outlined to the committee extensive protections for privacy in the constitution. Of course Bork wouldn't stop there and he continued to forcefully reject both the Griswald and Roe conception of privacy. (he had to anyway, since prior to his nomination he had written on the same subjects)
Posted by: h-man at September 18, 2005 4:47 PM"stare decisis ion privacy cases"
ion cases. Does this have anything to with the amount of nitrogen?
Posted by: Robert Schwartz at September 18, 2005 5:00 PM
One argument would be that it is covered by the ninth amendment, which essentially states that there are a number of rights that people have which are not listed in the constitution. However, I do think that that is somewhat of a shaky basis to assert a general right to privacy, although I'll have to think awhile if I am going to expound on it at any length.
Posted by: Glaivester at September 18, 2005 8:50 PMThe 9th is greeting card level boilerplate.
Posted by: oj at September 18, 2005 9:41 PMThere's no right to privacy. There are, however, strong limits on what is permitted to the federal government. The so-called "right to privacy" is in the penumbra of this. It's a corollary, not an axiom.
Posted by: Annoying Old Guy at September 18, 2005 10:11 PMThe resort to penumbras is always anticonstitutional.
Posted by: oj at September 18, 2005 10:50 PMWhy is perhaps 30-35% of the electorate willing to stake (and fight) everything based on a vaporous "corollary"?
Posted by: jim hamlen at September 18, 2005 11:06 PMBecause it's about the exercise of power.
Posted by: oj at September 18, 2005 11:14 PMWell, the Senators were so concerned about stare decisis in privacy cases it seems safest to return to the status quo ante Griswold.
Give me a call when it happens...then call 911 because I'll have gone into shock.
Posted by: Matt Murphy at September 19, 2005 2:58 AMPlease. Please. Please. Please. Please return to said status quo ante. And go before the voters as the party that seeks the right to ban birth control.
The party of forced pregancy: revealed at last in all its glory.
Posted by: Rick Perlstein at September 19, 2005 6:08 AMRick:
Forced? Boy, you guys really are stuck in victim mode.
Posted by: oj at September 19, 2005 8:24 AMLet's see here. The people of the state of Connecticut have a law on the books regarding birth control and the SCOTUS declares it unconstitutional on the basis of penumbras and emanations glowing out of the 9th amendment. Never mind that the amendment is a limitation on FEDERAL power and state laws not clearly in violation of constitutional provisions as ratified by the state of Connecticut wouls seem to have no standing, the law cannot stand since, and I cannot find any other reason, the majority of the justices didn't personally like it. No wonder all prospective nominees need to cross examined regarding their personal views. The left wants philosopher kings rather than judges.
Posted by: Tom C., Stamford,Ct. at September 19, 2005 10:22 AMNever mind that the amendment is a limitation on FEDERAL power
Agreed. Granted, one could argue that the 14th amendment applies the ninth to the states, but to be honest, I have a large number of problems with the legitimacy of the 14th amendment itself (it wasn't passed legitimately), and with the "incorporation doctrine" of interpreting it.
Posted by: Glaivester at September 19, 2005 11:32 AMRick Perlstein:
Yeah, the Connecticut legislature is just itching to bring that law back...
Posted by: Matt Murphy at September 19, 2005 12:21 PMMr. Judd;
It's constitutional as long as the the judges rule on the Constitution itself and leave the penumbras to take care of themselves.
Posted by: Annoying Old Guy at September 19, 2005 1:34 PM