Posted on 08/04/2005 12:59:39 PM PDT by Congressman Billybob
A story by Mike Allen and R. Jeffrey Smith in the Washington Post on 3 August, 2005, reviewed many of the background documents just released concerning Judge John Roberts, nominee for the US Supreme Court. The article’s title got the subject right, “Judges Should Have 'Limited' Role, Roberts Says.” However, once the authors got into the basis of Griswold v. Connecticut and Roe v. Wade, their understanding of the subject evaporated.
The article said,
“The new documents disclosed by the archive that reflect Roberts' skeptical views regarding a ‘fundamental’ right to privacy include a lengthy article on judicial restraint that he apparently drafted for publication in a journal of the American Bar Association....
“The article approvingly quoted from a dissenting opinion by Justice Hugo Black [in Griswold] ... [which] complained that the court had used ‘a loose, flexible, uncontrolled standard for holding laws unconstitutional.’ The draft article said that ‘the broad range of rights which are now alleged to be fundamental by litigants, with only the most tenuous connection the to Constitution, bears ample witness to the dangers of this doctrine.’
Source: http://www.washingtonpost.com/wp-dyn/content/article/2005/08/02/AR2005080201913.html?sub=AR
For those lucky many who are not immersed in constitutional cases, Griswold was the case about sale of contraceptives in Connecticut. It discovered and announced the “right to privacy” on which Roe v. Wade and all its progeny are based. Did everyone notice what the writers did here? They assumed that this right was found somewhere in the Constitution, without reading the document to look for it.
Senator Christopher Dodd made the same, obvious mistake on “Meet the Press” this weekend when he referred to the (non-existent) “Privacy Clause” in the Constitution.
Every now and again, a court manages to speak in plain English that even J.D. Salinger’s “fat lady” could understand. A decision by the First Circuit Court of Appeals did that this week. It concerned the third failed attempt by a Puerto Rican citizen to get a court to order for him a right to vote for President. This decision demonstrates why judges as well as reporters should read the Constitution before they write about it. The Court said:
“That the franchise for choosing electors is confined to ‘states’ cannot be ‘unconstitutional’ because it is what the Constitution itself provides. Hence it does no good to stress how important is ‘the right to vote’ for President. Although we recognize the loyalty, contributions, and sacrifices of those who are in common citizens of Puerto Rico and the United States, much the same could have been said about the citizens of the District of Columbia, who were voteless over a much longer period. The path to changing the Constitution lies not through the courts but through the constitutional amending process, U.S. Const. art. V; and the road to statehood – if that is what Puerto Rico's citizens want – runs through Congress. U.S. Const. art. IV, § 3, cl. 1.”
Source: http://www.ca1.uscourts.gov/ Case No. 04-2186, 3 August, 2005
This court, like Judge Roberts, understand the role of a judge under a written Constitution. The first question is: Do the courts have the power to decide this question? Whether a certain result is “a good idea” is irrelevant until that question is answered.
Certainly there are copies of the Constitution somewhere in the offices of the Washington Post. They should take them down and read them occasionally, to get a clue about what it means to have a government under a written Constitution.
John_Armor@aya.yale.edu
Not only will Freepers probably appreciate that website, but with your penchant for factual research and being ahead of the curve, some of you may see fit to contribute to that site (with the consent of its editors).
Enjoy.
Or something like that.
"[citations] The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."
Estelle T Griswold v State of Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 1681.
Justice DOUGLAS delivered the opinion of the Court.
Hey, CB, I think FR should have a contest for the most creative interpretation of the 3rd Amendment. Since it isn't much use anymore as written, we should try to think like liberals and see what rights, penumbras and legal umbrellas are contained within it so we can breathe life back into it and update it for the 21st Century.
For example, I find an inherent right to privacy in the 3rd. Since government can't house soldiers in your house against your consent, that clearly implies a right to privacy.
Likewise, a right to abortion could be found here, if you re-interpret "soldiers" to mean "fetuses" and "homes" to be "wombs", then no fetus can be quartered in a womb without the consent of the owner.
Makes as much sense as Raich, methinks.
For the ten thousand, nine-hundred and twenty seventh time, a right does not have to be listed in the Constitution in order to exist.
Ninth Amendment, anyone? Anyone? *crickets chirping*
The opponents of the Bill of Rights were precisely on target about the dangers of enumerating rights in the Constitution. It's a wonder that the Ninth has protected us as long as it has, but now it's evident that it may as well be dead and buried when we've got so-called "conservatives" ignoring it.
Here's the problem. The 9th Amendment was written well before the 14th. Prior to the 14th, the 9th was meant as a constraint on federal power. The feds were limited in their ability to curtain rights not enumerated in the Constitution - but states were free to regulate non-enumerated activities (and a lot of enumerated ones, as the bulk of the Bill of Rights only applied to the feds). That is also why a properly constrained federal government required a Constitutional Amendment to ban alcohol - but once Prohibition was repealed, state and local governments were free to continue restricting or prohibiting the sale of alcohol. Repeal of Prohibition did not grant a federal right to drink that superceded state powers to regulate such.
Now, after the 14th was passed, the 9th went from a constraint on federal power to an EXPANSION of federal power - because with Griswold, the feds decreed that a FEDERAL, non-enumerated right existed under the 9th, and with the 14th it had the power to overturn state laws. This turned the intent of the 9th on its ear and set a very dangerous precedent for federal power.
So be careful cheering the abuse of the 9th to create federal rights. It should only be intended as a constraint on federal power.
I don't get it. Are you saying that under an originalist interpretation, a State could, as long as it took the form of a "republic," establish a Taliban-style total-surveillance police state and the Federal government couldn't say "boo?"
If I'm mistaking your intent, please clarify.
This is of course the classic case of mistaking light for dark. There is no need for "penumbras" and "emanations" in a nation where the state is properly confined to its enumerated powers and duties. The government of our Founders had little power and means to violate our privacy.
Trying to keep us safe from Leviathan by finding such "emanations" is futile.
Well, basically, from what I understand, the Bill of Rights was meant as a constraint on the federal government, not the states. That is clearest in the First Amendment, which states "Congress shall pass no law...".
And the purpose of the 9th and 10th were to put strict limits on what the fedgov could do, not to enumerate additional rights at the federal level.
This is consistent with Supreme Court decisions before and after the passage of the 14th Amendment. After the passage of the 14th, the amendments of the Bill of Rights were extended to the states one-by-one by Supreme Court decisions.
Althought true of the federal governemnmt, this statement is patently false concerning the state governments. They had all kinds of very strict laws concerning religion, sexual practices, etc.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
This is about as close to a "right to privacy" that our constitution gets.
When the last signature was added to the July 4, 1776 document titled Declaration of Independence, 13 colonies of England were cut loose and existed as individual sovereign states.
The failures of the Continental Congress led, eventually, to the Constitution of the United States of America. Notice it is titled UNITED STATES, reflecting their sovereignty.
The U.S. Constitution was created with the intent of each sovereign state to surrender a specific and measured part of its sovereign power so a FEDERAL government could exist to bring some uniformity in the relations between the states and to perform functions on behalf of those states which no single state could accomplish alone.
Articles 1-7 set up that mechanism and put restraint on Federal power.
The ammendments 1-10 were adopted (over great struggle) to broaden the restraint of Federal power over individual liberties. The clear intent of the Ammendments is to keep FEDERAL power from encroaching on individual rights. In fact, the Constituion and its Ammendments confer NO INDIVIDUAL RIGHTS WHATSOEVER.
You will note the long time it took for the original 13 colonies to ratify the Constitution...precisely because great opposition still existed at the state level to surrendering ANY power to a Federal Government.
But I guess it's like anything else, SCOTUS will interpret them the way they want to and there ain't much in the short or mid term we can do about it.
Excellent article, CB.
It was our original "constitution," the Articles of Confederation, which took ten years to get ratified. The hold-up had nothing to do with the rights of states generally. Instead, it was over the unlimited claim of Virginia to unlimited western land. Until Virginia relinquished that claim, Maryland refused to ratify the Articles.
Congressman Billybob
I would not jump to that assumption.
The "Privacy Clause" is not in the standard edition of the Constitution. You have to get the Emanations and Penumbra edition.
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