The Supreme Court's curious view of privacy.

z9z99

[z9z99]

The notion of privacy and the judicial construct of the “right to privacy” are inextricably linked with American concepts of sexual conduct. This linkage is so accepted, that we fail to notice that it is based on an ambiguity and a logical fallacy. When the Supreme Court recognized the “right of privacy,” it was not in fact referring to privacy, but to liberty. The notion of preventing legislative action in matters of sex and reproduction was introduced by Justice Harlan in 1961 with his declaration:

"I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual¹s personal life."

This statement is much more intuitive when phrased without reference to privacy: "I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable restriction on the conduct of the most intimate concerns of a person’s personal life."

What Justice Harlan’s statement does is to refer to privacy when he means liberty. In doing so he makes use of an ambiguity that is best illustrated by the slogan “What I do in my bedroom is my business.” Privacy refers to “my business;” liberty is concerned with “what I do.” By interchanging the two, our Supreme court sent American jurisprudence on a detour through specious reasoning from which it has yet to emerge.

Later Jurists built on Harlan’s premise of “an intolerable and unjustifiable invasion of privacy” to find a general right of privacy in the Constitution. In so doing they made use of a logical fallacy of assuming that which is to be proven. The argument is circular: The Constitution contains a right of privacy regarding reproductive matters because statutes regulating those matters would violate the right of privacy. The right of privacy must be assumed as a condition of its being found.

More recently, the Court has abandoned its quirky view of privacy and begun to discuss matters in the more appropriate language of liberty. Justices Kennedy, O’Connor and Souter waxed responsible with their declaration in Planned Parenthood v. Casey.

Our obligation is to define the liberty of all, not to mandate our own moral code

An interesting intellectual exercise is to try and explain why the Supreme Court avoided using the language of liberty for forty years when talking about government involvment in sexual practices.

[Paloma_55]

There are a number of cases where the courts have made up rights like this and denied obvious rights in others.

Example of right constructed: The proscription of creating a law preventing sodomy on the basis that it violates the civil rights of homosexuals. This *assumes* that homosexuality is an inherent trait which holds the same status as gender, race, etc.

Example of right denied: The decision that a woman can kill her unborn child. Denies the right to life. The court lept to this reasoning on the basis that they ignored scientific evidence with regard to when life begins, and instead chose to define it based upon their own construction.

[Theresawithanh]

I was wondering if a zot was coming on. (Sits back with a cold one and a snack to wait...)

[MisterRepublican]

z9z99
Since Apr 12, 2005

[Theresawithanh]

I was wondering if a zot was coming on. (Sits back with a cold one and a snack to wait...)

[JCEccles]

As Justice Scalia noted, the SCOTUS sodomy decision marked a signal, decisive battle the culture wars. In the wake of that decision, legalized bestiality, incest, and even pedophilia are logical consequences over time. Pedophilia will likely be the last sexual proscription to fall, but there is no logical impediment to that happening. If sodomy cannot be proscribed, no sexual behavior can be logically proscribed. The "right of privacy" is that ham-fisted and inclusive.

And don't let anyone say such decisions are not legislating morality. They are legislating liberal morality, the most destructive and costly strain of all.

[Torie]

Justice Kennedy is helping to fix that one. He uses the word "liberty" rather than "privacy" as his preferred tool for rewriting the Constitution in his own image. A majority of SCOTUS just is too tempted to just do it when it comes to laws that deeply offend their moral sensibilities. Self restraint is tough; it takes work and decades of acquired good habits.

In any event, the problem is not in the choice of terms; it rather is in a choice about whether or not to eschew the abuse of power, which is just sitting there like hanging ripe fruit readily available to pluck and consume.

[Torie]

In the wake of that decision, legalized bestiality, incest, and even pedophilia are logical consequences over time.

Not until a majority of SCOUTS finds moreal favor with it. That is never going to happen. Overstating one's case, tends to lead one to lose traction and focus.

[T.L.Sink]

I refer all FRepers to an excellent article by Robt. P.
George ("Judicial Usurpation") in todays Heritage web.,
which details the "slippery slope" of the Court's use
and misuse of a contrived "privacy" doctrine that, along
with similar pretexts, has been used to undermine traditional marriage. It presents an interesting and
concise history of - as the title suggests - judicial
tyranny and why a constitutional amendment to protect
traditional marriage is absolutely essential. Very interesting and informative.

[supercat]

Example of right constructed: The proscription of creating a law preventing sodomy on the basis that it violates the civil rights of homosexuals.

I recognize that the Supreme Court doesn't generally offer petitioners advice on what to petition, but IMHO what they should have done was dismiss Lawrence without prejudice, with a note saying that the petitioner should appeal on the basis that enforcement of the sodomy law in the extant case may have constituted capricious enforcement insofar as the cop had no warrant or other legitimate basis for entering the dwelling uninvited. The Supreme Court could have then remanded the case to a jury, with instructions to acquit the defendants unless it found that they were responsible for the cop's having entered their dwelling. [nb: I've read suspicions that these people called the cops themselves; I have no idea whether they did or not, but if phone records had shown that they had done so and this were brought out at trial, many people would be glad of these guy's prosecution]

[WOSG]

"I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual¹s personal life."

---

This is an interesting and reasonable belief ... what is UN-reasonable are a bunch of Judges acting like they are another legislative branch and deciding that their policy views should somehow become law.

"unjustifiable invasion of privacy " is not "unconstitutional" unless you concoct and invent rights ... which is what the court did.

[WOSG]

You operate under the superstition that the Justices would want to do justice in a narrow case... what they did was wholly political.

They wanted to change the law and culture, and they did.