Another Griswold misadventure.
Posted on 06/08/2005 9:14:53 AM PDT by GovernmentShrinker
Legal scholar David Garrow was brought up short when a Connecticut audience seemed surprised to hear him say that Connecticut's law criminalizing birth control even for married couples led the Supreme Court to recognize the right to privacy 40 years ago.
"Few people were aware of their state's role or the sweep of change since then," said Garrow, author of "Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade."
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It was Griswold v. Connecticut, decided June 7, 1965, in which the court first announced that individual rights spelled out in the Constitution's Bill of Rights guarantee a "right to marital privacy."
Within eight years, the court had expanded privacy rights to include contraception by unmarried couples as well as Roe v. Wade making abortion a private choice between a woman and her doctor.
More recently concerns with privacy and personal liberty have led the court:
- To decriminalize consensual gay sex between adults as "the most private human conduct ... in the most private of places, the home."
- To reconsider the right to die, which the court will hear next term.
"Griswold is the cornerstone of today's culture wars," said Bruce Allen Murphy, a Lafayette College historian and biographer of Justice William O. Douglas.
It was Douglas who authored the Griswold opinion, in which he wrote that individual rights spelled out in the Constitution's Bill of Rights cast "penumbras, formed by emanations," that create zones of privacy.
Murphy and other experts agree that privacy debates pre-date the 1787 Constitution to the colonial era and English common law.
Privacy subsequently figured in the Federalist Papers' arguments for the Constitution's ratification: James Madison, future president and father of the Constitution, argued in favor of securing popular government and "the public good, and private rights, against the danger of faction ..."
It took the Industrial Revolution and its handmaiden, technology, to thrust privacy rights to the fore in the last two centuries.
The Supreme Court in 1878 first declared that the U.S. mail was private and subject to court-approved warrants under the constitutional right of citizens "to be secure in their persons, houses, papers and effects against unreasonable searches and seizures."
Then came questions about whether telephone and telegraph communications were similarly protected. The court initially said they weren't over Justice Louis Brandeis' objection that "the right to be let alone," absent a judicial warrant, covered telephone wiretaps of Prohibition bootleggers.
"In the application of a Constitution, our contemplation cannot be only of what has been, but of what may be," Brandeis wrote in dissent. "The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court ..."
Marc Rotenberg, a Georgetown law professor and founder of the Electronic Privacy Information Center, said Brandeis' views echo today:
- When police have heat-seeking devices to look through walls for drugs.
- When machines sniff travelers for explosives and look through their clothing for weapons as ammunition against further terror attacks.
- When personal habits and financial information as well as corporate secrets can be tracked by e-mail and online, and when identity theft is the No. 1 financial crime.
Indeed, a new poll of 1,500 Internet users for the Annenberg Public Policy Center at the University of Pennsylvania found that 49 percent didn't know that Web sites can share information about you without telling you while 75 percent don't understand that "privacy policies" amount to waivers of your privacy rights. Annenberg study author Joseph Turow calls the public's trust "misplaced."
Twentieth-century life also spawned cases safeguarding family privacy, starting with rulings that defended parental rights to educate their children at non-public schools and of grandparents to raise grandchildren despite zoning laws to the contrary.
To Garrow, a contemporary landmark in the privacy debate was the 1987 fight over Robert Bork's Supreme Court nomination. Garrow, a law professor at Emory University, characterizes it as "a popular referendum on the right to privacy, which Bork repeatedly told televised hearings he couldn't find in the Constitution."
Polls conducted by Bork critics on the eve of confirmation suggested his biggest drawback was the perception that he threatened privacy rights, fueled by his outspoken opposition to Griswold v. Connecticut and its progeny. Opponents mined those findings and other polls expressing overwhelmingly public support for privacy rights to shape the campaign that led to his defeat in the Senate.
More recent Supreme Court nominees have been reticent on the issue before and during Senate confirmation, including Anthony Kennedy, David Souter and Clarence Thomas.
Kennedy and Souter went on to co-author the 1992 decision that declared Roe v. Wade settled precedent. Thomas - the court's outspoken champion of returning to "first principles" as he says the Constitution's framers understood them - voted to overturn.
Thomas also tells audiences today about the sign a friend gave him for his chambers: "Don't emanate the penumbras," it says.
I always thought that privacy was one of those rights the founders thought so obvious that it need not be mentioned.
But I don't understand how murdering a child is an act of privacy.
Great work, guys.
Don't drop your soap in the lake of fire.
Another Griswold misadventure.
That's European Vacation of course. The girl who played the daughter in that one has since passed away.
You have done a great job of summarizing in one short paragraph the constitutional priciples at issue.
It was. Not to mention the fact that the Constitution is explicitly not a complete list of rights. The Constitution is very clear on this:
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Funny how few people seem to realize this. If one more person says "There's no right to __________ in the Constitution" I may be forced to throw something heavy.
But I don't understand how murdering a child is an act of privacy.
It isn't. It's a misapplication of the right.
That is true...but what is important to remember is that neither the 9th or 10th Amendments were designed to provide federal courts with a blank check to decide what "rights" we have.
I think people forget the limited purpose of the Constitution...the states delegated certain powers to the new federal government...and everything else was left to the states. The Bill of Rights was added by the first Congress at the demand of the Ant-Federalists who were concerned that the federal government would inevitably exceed its authorized powers and then violate certain fundamental rights.
Certain Federalists (namely Hamilton) objected to including a Bill of Rights because they felt it was unnecessary...it would prohibit the federal government from doing things it did not have the authority to do anyway. Hamilton in Federalist 84:
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?
Hamilton's concern was the reason the 9th and 10th Amendments were added...they were not added to give federal courts authority to order states to acknowledge certain "rights"...No one ever contemplated a time when the US Constitution's Bill of Rights (considered unnecessary by the Federalists and necessary by the Anti-Federalists only in the event that the new federal government in the future exceeded its Constitutional authority...in which event, any violation of the Bill of Rights would be already unconstitutional regardless of the existence of the Bill of Rights) would be applied to the states.
That fraud (14th Amendment incorporation of the Bill of Rights against the states) was not "discovered" until 1925 (79 years after the 14th Amendment was ratified).
So, in my opinion...no...the Framers did not believe that there was an inviolable "right to privacy" that every state was bound to respect....unless of course, such a right was to be found in the relevant state constitution.
The Constitution did not leave "everything else" to the states. The states have the powers "prohibited" from the United States by the Constitution to the states. All other non-delegated powers are reserved to the people (Tenth Amendment). The enumeration clause (Ninth Amendment) recognizes no unenumerated states rights, only unenumerated rights retained by the people.
I love it how the press keeps digging up David Garrow, one of the grand overpaid showcase libs at Emory University, and best known there today for sexual harassment of the female staff. Whenever they want somebody to say that abortion is the most fundamental of American liberties, out he comes! (And, not surprisingly, the libertarians just eat it up.)
The states retain all powers not specifically delegated to the federal government by the Constitution, or prohibited to the states by the Constitution.
The view that the 9th Amendment provides some sort of recognition of positive individual rights is in no way supported by any of the history or documents surrounding ratification of the 9th Amendment or the writings or speeches of any of the principal architects of the Bill of Rights (particularly Madison). The purpose of the 9th Amendment was to work in tandem with the 10th Amendment to protect the federalist structure of the government that the states created when ratifying the Constitution. To Madison and other Framers...the "Rights or the People" and the "Rights of the states" were one and the same.
That is not what the Tenth Amendment states. "The powers not delegated to the United States by the Constitution nor prohibited by it to the states, are reserved to the states respectively,(in the order given)..." i.e. the Constitution specifically gives the United States several powers and prohibits them from having certain powers which are retained by the states. However the rest of the Amendment States "...or to the people" i.e. the powers not given to the United States or retained by the states by being prohibited to the United States, are reserved to the people. The people gave up certain rights to form states. The states gave up certain rights to form the United States. The founders certainly did not believe that the people gave up all of their rights to the states, they retained all of the rights not specifically granted to the states by the individual state constitutions. Constitutions, whether state or federal, do not grant rights but have only the limited rights specifically given them by the people. The people never gave all of their rights to a state or to a federal government. Except for a very limited number of specific rights given to the states and federal government, the people retain all rights. This is made clear in the Ninth Amendment. Rights are inherent in people, not state or federal governments.
The 10th Amendment reads: "The powers not delegated to the United States by the Constitution nor prohibited by it [the Constitution] to the states, are reserved to the states respectively."
Meaning that the states have all powers (a) not delegated to United States (i.e. the federal government) by the Constitution (mostly found in Article I, Section 8) OR (b) that the states are not specifically prohibited from having by the Constitution (those are found in Article I, Section 10...things like entering into treaties, coining money, etc....these prohibited powers just made clear what was the exclusive province of the new federal government)
Everything else was left to the states. True that the Founders recognized natural, God-given rights but they also believed that the states were the best guarantors of those rights and they also had to deal with the practicalities of getting the Constitution ratified by 3/4 of the states and several states (notably Virginia) delayed ratification of the Bill of Rights for nearly 2 years until Madison made clear that the 9th Amendment was, like the 10th Amendment, strictly a federalism concern, would protect the powers of the states and not interfere with the states' authority to legislate as they wished.
The 9th Amendment provided that the listing out of certain rights in the first 8 Amendments did not thus imply that the feds had the authority to infringe on other rights retained by the people/states (to the Framers state's rights and individual rights were thought of interchangeably) so long as they did not infringe the ones specifically listed. "Retained rights" as referenced in the 9th Amendment were both natural rights (although not necessarily all natural rights) and non-natural rights. In each state, it just depended on what the state constitution and the laws provided. One illustration that is true is that, in a majority of the 13 states in 1792, there was an official state religion. Madison initially proposed a bill of rights that included an explicit prohibition on any state violating the "rights of conscience" (clearly what Madison would have considered a natural right)...yet that was rejected and for many years thereafter, many states did in fact, violate rights of conscience by taxing in support of churches, compelling attendance at church and prohibting non-Christians (and in some cases non-Congregational Christians) from holding elective office. Clearly, the 9th Amendment did not create an individual right to freedom of conscience.
There is a good law review article I read once on the 9th Amendment where Madison gave a speech on the intent of the Amendment...I will try to dig it up and post it
It's not.
You keep on leaving off, in your quotation of the Tenth Amendment, the words "...OR TO THE PEOPLE". Your interpretation also does not take into consideration the meaning of the word "respectively" which comes before these words and applies to the powers of the United States and the states. I have never seen anything that would lead me to believe that the framers thought "states rights" and the "rights of the people" were synonymous. The wording of the Ninth Amendment is clear, " The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people". It does not say "...others retained by the states". The state constitutions also make it clear where all power resides e.g. the Minnesota Constitution, "Government is instituted for the security, benefit and protection of the people, in whom all Political Power is inherent". Both the Federal government and state governments are strictly limited in the powers they have, all of them being derived from the grant of the people. When the Federal Government was formed the states lost some power and the Federal Government gained some. The people lost none of their inherent rights.
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