Griswold's? They're on vacation.
Posted on 07/19/2005 6:26:33 AM PDT by Tumbleweed_Connection
How did this all start? Several “strands” of major Supreme Court decisions, bound together, have dismantled older constitutional understandings and enshrined the new morality. On the questions of marriage, family, and sex, that string begins with the 1965 Griswold decision. In that case, a Connecticut law that outlawed the use of contraceptives, even by married couples, was ruled unconstitutional. Now, before you jump to conclusions, let me clearly state that this law was badly written, and I would not have supported it or its intent. Nonetheless, it is in this case that the Court “discovered” a “right to privacy” in the U.S. Constitution. Of course, such a right does not appear anywhere in the text of the Constitution. Rather, the Court’s majority discovered — or invented — such a right from the “emanations” and “penumbras” of rights found in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
It is significant that what seems to have been decisive in the minds of some of the justices in the Griswold majority was actually something quite traditional in the common law: the notion that marriage was a privileged institution into which law should not interfere. The case involved Planned Parenthood dispensing contraceptives to a married couple, and throughout the decision, it was marital privacy that was discussed. So, an aspect of the traditional moral view was a motivation for the Court’s majority decision: But the jurisprudential novelty it established — the right to privacy — would quickly become a constitutional wrecking ball.
Justices Stewart and Black were scathing in dissent, observing that while both disagreed with the law personally (as do I), they could find nothing in the U.S. Constitution that prevented the Connecticut legislature from making such a law (which had been on the books in the state since 1879). The dissenting justices mocked the reasoning of the majority, which in some cases based itself not on the Constitution’s text, but rather on the “traditions and [collective] conscience of our people.” How, asked the dissenters, could the Court know the conscience of the people better than legislators? Did not such reliance lead only to the substitution of judges’ “personal and private notions” for the decisions of legislatures? “Use of any such broad, unbounded judicial authority would make of this Court’s members a day-to-day constitutional convention,” warned Justice Black. And so it has been! Finally, Justice Black observed that “privacy” is a “broad, abstract and ambiguous concept,” lacking the specificity of a genuinely constitutional rule. However traditional it may appear in the guise of marital privacy, which as a legislator I support, this novel right was bound to do harm in our jurisprudence.
And so it was and so it did. Just seven years later, in Eisenstadt v. Baird (1972), the Court struck down a Massachusetts law that made contraception legal only for married persons. The distinction between the married and unmarried was breached, and the “right of privacy” became unhinged, essentially protecting (heterosexual) sex, as such, from any moral regulation.
Again, although I disagree with the Massachusetts law and its intent, the Court’s solution to the problem presented by such a law was neither judicious nor prudent: The Court in effect codified the sexual revolution then underway — with the supremely powerful protection of a constitutional right. Marital privacy had now morphed into “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The arguably traditional marital dimension upon which the Court had discovered the new “privacy right” was simply dropped with respect to having heterosexual intercourse. Rather than encouraging the legislature to repeal an outdated law, the Court expanded further the ungrounded right to privacy.
The next step, of course, was Roe v. Wade, the abortion decision of 1973. Today, most honest constitutional experts agree that as constitutional law, this decision is a monstrosity, a pure act of judicial legislating with no warrant in the Constitution’s text. Having invented a “right to privacy,” a right with a special emphasis on sexual matters, the Court was driven by its new moral logic to extend protection to what was all too often the result of the new sexual ethic: unwanted pregnancies and their “termination.”
The Roe decision established an elaborate system of “trimesters” of pregnancy and delimited when the states might and might not have a “compelling interest” in protecting the life of the unborn, “balanced” against the “privacy right” of the mother. In immediately subsequent decisions, however, this elaborate system quickly became meaningless, a dead letter. By the Supreme Court’s lights, no legislative regulation of abortion was permissible, for abortion was, after all, a “fundamental right.” What could possible count as a legitimate weight in the balance against a “fundamental right”? In effect, Roe created a private license to kill a certain category of Americans, the unborn, and raised this license to a constitutional principle.
The strands of these Court cases had made the rope thick. The legal reasoning continued to evolve, and the right to (sexual) privacy approached its terminal point. In the 1992 case, Planned Parenthood of Southeast Pennsylvania v. Casey, the Court handed down a complex ruling on a Pennsylvania state law that sought to reduce the number of abortions by a whole set of restrictive measures. The Casey decision actually stepped back from some of the most extreme Court decisions that followed Roe: Certain measures to ensure “informed consent” are now ruled constitutional, for example. But finally, the Court would not allow any legislation in America that would actually prevent a woman from procuring an abortion she desired. That is the bottom line. And the reason for this is found in the so-called “mystery passage.” It formed the basis of the ruling: “At the heart of liberty,” Justice Kennedy wrote for the majority, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” The privacy right had now been expanded to its philosophical extreme.
Moral capital involves shared moral aspirations and norms, which for most of our founders was our human, legislative effort to approximate a transcendent moral order. I have been arguing that such moral capital is part of the common good. Here, however, the court tells us that liberty must mean that there is no common good: Each of us is locked in the prison of our own self-created moral universe. We are, each of us, lords of the world, divine legislators. There is no transcendent truth, no common truth, just myriad individual truths.
Where does the right to privacy go from here? As our culture continues to “progress” and old inhibitions are cast off, what boundaries — what guardrails — will be left? In his 1995 book Rethinking Life and Death, Princeton professor Peter Singer liberates moral theory and practice from any truths that pose an obstacle to our will to power and control. In that book he champions “neonaticide” — that is, the legal destruction of newborn human beings with physical handicaps up through the 28th day after birth. Singer has been dubbed by his critics “Professor Death” — but he professes his views from a tenured chair at Princeton.
Is Singer alone in promoting such a radical “concept of existence, of meaning, of the universe, and of the mystery of human life”? Unfortunately, he is not. Steven Pinker, a professor of psychology at Harvard, suggests that
Under his definition a newborn is not human, and therefore the reality Pinker constructs would allow for neonaticide as well. Pinker points to that conclusion himself: “[S]everal moral philosophers have concluded that neonates are not persons . . . and thus neonaticide should not be classified as murder.”
How long will it be before the Supreme Court “discovers” that voices like Singer’s and Pinker’s, coming as they do from some of our most elite educational institutions, represent the evolving “[collective] conscience of our people” and bring us yet another expansion of the right to privacy?
Definite bookmark.
If we can't understand the difference between thinking a law is "a bad idea" and declaring it unconstitutional, then we are in sad shape indeed.
We need justices who can resist temptation to act as legislators - I know it's been said a million times before.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
Griswold - the official beginning of the Culture of Death, US Division.
I wouldn't have agreed with the law either, but as Senator Santorum said, that doesn't make it unconstitutional. Not in the way they said it was, anyway.
If the USSC says I have a constitutional "right to privacy", why do I have to fill in all those details on my 1040 each year? Isn't my employment simply an agreement between two consenting entities?
Right. But the nuance will be trampled over by the MSM, which will then turn around and accuse Republicans of not being "nuanced" on other issues.
I always am wary of someone who starts off by characterizing someone's argument ("you're not nuanced") rather than ADDRESSING THE ARGUMENT ITSELF. But people do it all the time.
Of course it does. Fourth Amendment.
Bingo! What a great point.
Also, I wonder if anyone has ever done a side-by-side comparison of provisions of the Patriot Act and the IRS enforcement tools. They are designed for different sorts of investigations, I know. But I'd be interested to see the POWERS granted in areas where they overlap.
I am not a Patriot Act expert, and there are arguments on the right as well as the left against certain provisions.
But if we roll back a Patriot Act provision and there is a corresponding IRS provision, can we roll that one back too?
Not really on point, but on my mind. Have a good day.
Very good questions that you ask here.
I can offer two answers:
(1) The "right to privacy" is really shorthand for "the right to kill the unborn and commit sexual acts approved by the Court."
(2) Your right to privacy ends where the government's revenue begins.
What this did was destroy the man's say and voice from here on out in all matters.
A man's testimony and his laws have become worthless in this country.
The Fourth Amendment somehow leads to the right to contraception? Explain...
Griswold's? They're on vacation.
I was addressing the general "right to privacy" more than contraception in particular, but the Constitution guarantees people a right to "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". Anyone who thinks it's "reasonable" for the state to insert itself into decisions regarding a married couple's sexual practices has been smoking crack.
...The legislation to be considered last week would have banned indoor smoking in all public buildings with a few exceptions; casinos, bowling alleys, tobacco shops and fraternal organizations would be spared somewhat by the proposal but restaurants, bars and taverns will feel the full effect.
The bill's sponsor, 5th District Councilman Kurt Odenwald, said when the bill's opponents realized decision time was fast approaching, they stepped up their opposition efforts.
"The caused some reluctance by various Council members to move forward and we agreed to hold the bill," Odenwald said. "We didn't have a draft (bill) that the committee was going to be able to forward to the full Council."
Odenwald said the primary opposition came from Harrah's Casino.
"One of the main issues involves the casinos and whether the requirement that the smoking area allowed in the casino be enclosed or not," Odenwald said. "The casinos are adamantly stating that to have an enclosed smoking area will interrupt the flow of the gaming activity and negatively impact their business. I question that because Harrah's used to be divided into two; it was two separate casinos with a wall down the middle; so it really makes me question why, when it operated as two separate casinos with a wall dividing them and they made millions, why now all of a sudden if we re-impose that requirement it would change their finances?"...
I'm not commenting on smoking but who's privacy is being invaded when the government steps into a private establishment and lays down new rules for the owner?
Very well written and reasoned. The trouble with it is that all those laws which Santorum says he didn't like would have remained on the books forever without judicial interferance, and we would have had more riots and civil disobediance than we did have. Social mores change and its very hard to know how to best adjust institutions to deal with those changes. I think Oliver Wendall Holmes got it right when he said the times determine the proper interpretation (I'm paraphrasing, of course).
IMO, Santorum would be a great SCOTUS pick if he could make it through the maze at the Senate...
Regardless, looks like a copy of this book when it is released will be going into my library.
Thee are plenty of arcane state laws that no longer apply, or are not followed, on the books in almost every state. To have them all granted cert. and declared unconstitutional would be ridiculous. And no one was rioting in the streets over CT's ban on contraception. There is a local,legal process to overturning such laws without taking them to the Supreme Court.
Interesting. People have thought about that from time to time.
Again, deciding what's a good law or not and deciding what the Constitution mandates or not are two different things. And I think that sometimes the court has been able to take a larger role because people naturally get more "riled up" about judicial activism when it's their ox being gored, so to speak. I thing the eminent domain ruling woke a lot of people up. It takes a moment to explain, but if you want Roe v Wade you have to put up with the property ruling too. (Perhaps overgeneralizing, but you get the idea.) I think it's sad that so few people know how the Constitution works, and some that do know don't care about the law.
Interesting take on abortion. I do like applying procedures, tactics, etc. acceptable in one context to another. It helps smoke out hypocrisy. Imagine if some conservative legal outfit filed product liability lawsuits against the manufacturers of some medical equipment only used in abortions, using the tobacco lawsuits (or even better yet, the lawsuits against gun manufacturers) as a template. Just keep doing it until you bankrupt the manufacturers, or just get them to move into another line of business. I generally think that's a misuse of the legal system, which is why I favor tort reform. But imagine the fun when people who are against reigning in the trial lawyers read of my hypothetical.
Whatever. Just spinning little scenarios in my head. Isn't that what web boards are for? :)
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