Posted on 10/17/2005 3:43:34 PM PDT by RWR8189
And that a "right to privacy" exists in the Constitution...
Nothing more yet...
Reading The Tempting of America is absolutely essential to this discussion. To people who have not read it, Bork's assertion that there is no right of privacy in the Constitution is incomprehensible.
Miers Believes In Right to Privacy
Fox News is reporting that it has been told by Senator Arlen Specter (R-Pennsylvania), Chairman of the Senate Judiciary Committee, that SCOTUS nominee Harriet Miers told him that she believes the U.S. Constitution embodies a right to privacy. She further advised Senator Specter that she believes the Supreme Court correctly decided Griswold v. Connecticut, the famous 1965 decision which struck down a Connecticut statute prohibiting the use of contraceptives as a form of birth control, or providing medical advice for the use thereof. The Court found the Bill of Rights to include a right to privacy that extended to marital affairs.
Senator Charles Schumer (D-New York) had earlier told Fox News that he had reservations about Miers because she had declined to discuss Griswold with him, or her views in general on the right to privacy.
Conservative legal scholars have decried Griswold as a glaring example of judicial activism that set the stage for later opinions expanding the right to privacy, such as Roe v. Wade (providing a right to abortion) and Lawrence v. Kansas (nullifying anti-sodomy laws). It is been haled as a landmark decision by civil libertarians.
If Miers accepts a constitutional right to privacy and the Griswold decision, it is difficult to believe she would ever join the Court’s conservative bloc led by Justice Antonin Scalia in voting to overturn Roe v. Wade. It also provides hope to gay civil rights advocates that she will uphold challenges to Lawrence, Roemer (striking down a Colorado law that prevented local governments from enacting local laws banning discrimination against gays and lesbians) and other landmark gay civil rights cases.
This news is not likely to sit well with the Christian right, which had recently been buoyed by reports that friends of hers had told several leaders in the religious right that they believed she would vote to overturn Roe v. Wade. Advance Indiana would hasten to add that Chief Justice John Roberts told senators he believed in a right to privacy as well during his recent confirmation hearing, despite a general antipathy he had expressed in his legal writings about the "so-called" right during his years working in the Reagan administration. Roberts' comments on Griswold, however, could be interpreted to mean that he would limit its holding to a “marital right to privacy.”
whatever
Good points all, and more reason to believe that a nebulous and ill-defined "right to privacy" does not exist in the Constitution. It may exist elsewhere (in postive or natural law), but it cannot be found in the text of the Constitution.
" Which begs the question: If your interpretation is correct and (by necessity) Griswold is wrong, why do you support Miers for saying Griswold is correct?"
I have no idea what her reasoning is.
I believe the Griswold decsion striking down 53-32 and 54-196 was correct and thus I would be very disapointed in any justice who did not agree with it.
It would be very interesting to hear here reasoning.
The whole mess is just so lame and demeaning to a theoretically-free and liberty-loving country. I fear we're gonna get hosed by a Bush yet again.
Roberts got lucky and was able to duck directly addressing Griswold under questioning by Schumer. Here's how Byron York described it:
Schumer ... said, "And on the Griswold case and the right to privacy there, you said, in reference to Sen. Kohl's question, 'I agree with the Griswold Court's conclusion that marital privacy extends to contraception and the availability of that. The Court, since Griswold, has grounded the privacy right in that case in the liberty interests protected under the due process clause.' That is your accurate view?""Yes, sir," Roberts said.
Well, yes, that was what the Court did. And that was what Roberts said the Court did. But did Roberts agree with what the Court did? That would have been a natural Schumer question, but the senator didn't ask.
But my memory of commentary after that session (which was Day 2 or Roberts's confirmation hearings) was that everybody was saying "Roberts supports Griswold."
I suspect something similar happened with Specter: That she made a response to an inept question from Specter re Griswold; and Specter either misunderstood her answer (the way many commentators did with Roberts); or, he's spinning it.
LOL. I'd have to go back and do some heavy lifting myself. I think Griswold was decided wrong. The illegal activity was not in somebody's home. Nobody on the Court thought it was a good law, the majority said, "well then, we'll fix it." Some unintended consequences followed.
It is amazing, isn't it? Chemical contraception and IUD illegal in 1965. Bet one could get rubbers tho'.
Those wacky Puritans. I have to wonder about the makeup of the CT legislature, and the cops who did the arresting and so forth. Those days are long gone, aren't they.
--/ slides beer to AndyJackson /--
There it is, my fellow FReepers... There it is!!!
"This news is not likely to sit well with the Christian right, which had recently been buoyed by reports that friends of hers had told several leaders in the religious right that they believed she would vote to overturn Roe v. Wade."
Hey Dobson. Hey Robertson, can you spell SUCKER?
Only inferred from the "putting the ABA position to a vote" thing, IIRC.
I'm not trying to leave things out, honest. I've been sloppy and haven't kept notes that facilitate developing a rigidly defensible position. Do you recall the rationale(s) for my reaching the conclusion that she was likely to exhibit judicial restraint?
Yikes....I hate to admit this, after my mess up...but I am a hugh sport fan....and love the baseball playoffs and World Series...
(hanging head, here)
Being a Texas Ranger fan, I am pretty much an American League fan...and I never have been an Astros fan....but, in this case, I am rooting for the Astros to beat the STL. CARDINALS...(I think I got it)
So did Roberts. It remains to see if she shares the same qualifications.
Oh, I just noticed that the Monday Night Football is Indy V. St. Louis,...betcha there are more St. Louis fans watching baseball!
And Martz is an idiot.
You should read his dissent. It is quite amusing. Bias here, bias there, bias, bias everywhere. It is in the water.
Of course a right of privacy exists. But it is a matter of definition. A right to be secure in one's home is one thing' even the sancity of the marital bed. Even Griswold did not go beyond that.
Even if you point me to a date range -- my posting history is laborious to navigate, but I'm willing to do it.
I'd ask that, given that the matter is one of subjective judgement and much speculation, the fact that parts of my position shift (sometimes with new info, sometimes with change in the phase of the moon) does not make me a liar. I strive to present my point of view and express why I hold it, and if the view changed, why it changed.
In general, when a person has a tough time holding a clear position, it's because the input data is vague, and the conclusion shifts while the analyst looks from one direction, then another, etc.
I honestly appreciate your criticism, and thank you for the civil delivery you've provided.
People who are unfamiliar with the Constitutional underpinnings of our system of jurisprudence don't realize how far afield the Supreme Court has strayed.
They view the SCOTUS as a sort of supralegislature, whose duty it is to nullify badly designed laws, e.g. in the case of Griswold, regardless of whether or not it is empowered to do so.
Bork has explained-on numerous occasions-that there is a right to individual liberty implicit in the Bill of Rights, but that does not mean that there exists some free-floating "right" to "privacy," which enables the Supreme Court to infer into vital Constitutional clauses its own pre-existing philosophical or political viewpoints.
Grabs the proferred frosted glass, Looks Cboldt in the eye, and says "Cheers." Wonder if that was illegal in CT in 1965, too.
Limitation of powers upon Congress
the right of the people to keep and bear Arms, shall not be infringed.
Limitation of powers upon the national government as a whole
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
Limitation of the government from making unreasonable searches and seizures
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Limitation of the government from inventing new powers (as if that Amendment or the 10th have stopped them).
The Constitution nor the national government gives me, nor you, any rights. Natural rights exist and are bestowed upon us by our Creator, not by government
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