Posted on 03/24/2010 1:39:13 PM PDT by P-Marlowe
Here are some selected quotes from Griswold v. Connecticut, 381 U.S. 479 (1965).
If you don't know, the Griswold decision was the forerunner of Roe v. Wade. Griswold was based upon the Supreme Court's determination that under the Bill of Rights and the 9th Amendment and the 14th Amendment that there are certain Liberties, not otherwise mentioned in the Constitution that the State (including the Federal Government) cannot infringe. The following quotes are taken from that case and I believe make the argument that under the 9th Amendment the Federal Government cannot force an individual to purchase Health Insurance and further that a Government sponsored Health Care Plan would violate the right to privacy as enunciated in Griswold.
It would be a delicious irony if the Supreme Court used the Griswold case to overturn the Health Care bill. Here are some selected quotes:
Without those peripheral rights, the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases. In NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462 we protected the "freedom to associate and privacy in one's associations," noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid "as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association." Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.
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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. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion). Various guarantees create zones of privacy.
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The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U. S. 616, 116 U. S. 630, as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life." 381 U. S. 656
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a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." NAACP v. Alabama, 377 U. S. 288, 377 U. S. 307.
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the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights.
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The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
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"In regard to . . . [a] suggestion, that the affirmance of certain rights might disparage others, or might lead to argumentative implications in favor of other powers, it might be sufficient to say that such a course of reasoning could never be sustained upon any solid basis. . . . But a conclusive answer is that such an attempt may be interdicted (as it has been) by a positive declaration in such a bill of rights that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people."
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II Story, Commentaries on the Constitution of the United States 626-627 (5th ed. 1891). He further stated, referring to the Ninth Amendment: "This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well known maxim that an affirmation in particular cases implies a negation in all others, and, e converso, that a negation in particular cases implies an affirmation in all others."
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Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments, and an intent that the list of rights included there not be deemed exhaustive. As any student of this Court's opinions knows, this Court has held, often unanimously, that the Fifth and Fourteenth Amendments protect certain fundamental personal liberties from abridgment by the Federal Government or the States. See, e.g., Bolling v. Sharpe, 347 U. S. 497
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The Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. I do not see how this broadens the authority of the Court; rather it serves to support what this Court has been doing in protecting fundamental rights.
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Ninth Amendment -- and indeed the entire Bill of Rights -- originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the "liberty" protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. Cf. United Public Workers v. Mitchell, 330 U. S. 75, 330 U. S. 94-95.
In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the "traditions and [collective] conscience of our people" to determine whether a principle is "so rooted [there] . . . as to be ranked as fundamental." Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 105. The inquiry is whether a right involved "is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.' . . ."
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I agree fully with the Court that, applying these tests, the right of privacy is a fundamental personal right, emanating "from the totality of the constitutional scheme under which we live." Id. at 367 U. S. 521
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There are more, but here is the clincher:
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men. "
“If that is the case they would not want to bring up Griswold in this case because it may compromise a later review of Roe”
They don’t have to; the lawyers will bring it up and the court will then address it.
I will thank the Lord if Mrs. Griswold’s diaphragm ends up being the thing that saves us from Obamacare.
I am a frustrated Rock Musician who spends my days working as an attorney.
Justices have said they may review Roe. If that is the case they would not want to bring up Griswold in this case because it may compromise a later review of Roe.
If Roe is constitutional then the Health Care legislation (which puts the government between the citizen and his physician) is unconstitutional.
I would prefer that the argument be limited to the "right to be left alone" as enunciated in Griswold and not use Roe as a wedge to overturn this health care monstrosity.
Roe touches on additional issues of protecting those least capable of protecting themselves, i.e., the unborn or the almost born. The issue in Roe is effectively when the rights of the unborn are vested (a subject that the Supreme Court evaded in the decision).
We need to get this to the Supremes...ASAP..
Thank you but that was not my concern, not concerned of who brings it. The justices can decide to consider or not. If they rule against Obamacare with consideration to Griswold, it would be more difficult for them to overturn Roe, wouldn’t it?
I would be hesitant to use Roe, although since it relies heavily on Griswold, I can see its application. IMHO Griswold is really more directly on point. See post 24.
39] In the final analysis the contention made rests upon a non-existent power in the Federal Government to enact any act deemed by it necessary or desirable to promote the general welfare.
A. L. A. Schechter Poultry Corp. v. United States, 55 S. Ct. 837, 295 U.S. 495 (1935)
Legal ping
Thank you. Roe is different in that it harms the unborn whereas Griswold does not. Good distinction.
So you think Griswold can stand on its own against Obamacare and not have impact on a review of Roe?
What instrument frustrated you? Or what in Rock frustrate you. I am a songwriter with a couple of pieces before Alison Krauss’ people.
“the right to be let alone”
That IS the money quote—one that is fiercely defended by progressives when it comes to a women’s decisions about abortion and which is routinely ignored otherwise. It is manifestly inconsistent with their entire “nanny state” project, of which universal health care is merely one component. Until they have arranged for government to meddle with everyone’s life from cradle to grave, they will not rest.
BFLR & BTTT !!
Obviously it will have an impact, but I think the issue in Griswold and the arguments regarding Liberty are more forcefully enunciated in Griswold. Roe was a terrible piece of judicial activism. Griswold, however, touched on the idea that certain liberties are fundamental and were fundamental at the time the Constitution was enacted. Clearly abortion was not a historical liberty, whereas Contraception was.
What instrument frustrated you?
My frustration is not with the instruments, but in the fact that I can't make a decent living playing the darn things. I am a jack of all instruments and master of none. In the course of my life I have played the piano, clarinet, trumpet, trombone, tuba, french horn, saxophone, violin, flute, drums, bongos, acoustic and electric guitars, 5 string banjo, mandolin, electric and acoustic bass, harmonica, ukulele, and native flute.
So how does that get to the attorneys involved in trying to get health care or at least portions of it declared unconstitutional?
Fabulous post, and NOT, to me, a vanity.
This whole argument is why despite being ‘pro life” I have never wanted argue (like many) that there was anything wrong with the “logic” used in Roe v Wade, that we possess an unalienable right to privacy. We DO in fact possess that unalienable right, and we possess other rights too.
In Roe v Wade the problem with the decision was that ANOTHER PERSON IS INVOLVED, the unborn baby. Despite our right to privacy, we do not have the right to murder in private because it tramples another person’s superior and preexisting right. The court just refused to address the point that a fetus is a baby with rights. The court was wrong about abortion, but the idea that we have other rights including privacy is correct.
So we absolutely should maintain that our rights to privacy and free association and even our rights to self-defense and control of our own bodies make it illegal for government to attempt to steal our CHOICE, to steal our resources we need for our health and our family’s health, to direct those resources, to limit those resources, to limit our right to associate with other people to share our resources to care for ourselves, etc. etc.
In concrete example words, if a group of 100 young single celibate men with no real risk of sexually transmitted disease and no risk of insanity and no risk of pregnancy and no risk of drug use all want to get together and pool their resources to use if one of the group develops pneumonia, then it is in fact their right to do so. Very cheap insurance plan for people in that group if they want! No STD, HIV, drunken accidents, drug-induced psychosis, pregnancies, breast cancers, etc, etc. Use of that right, which some would call an insurance plan, which is even memorialized and recognized (not granted by) the ninth and other amendments may not be trampled, limited, regulated, outlawed of otherwise controlled by government, especially the Federal government. (This example is just the tip of an iceberg of examples that would touch on different types of rights.)
People are finally understanding the 10th amendment; and now it is time to raise awareness of the ninth amendment and related issues, and to promote an understanding that WE POSSESS MANY RIGHTS that may not legally be trampled by government.
So thank you again for your great post which raises this issue in a really precise way with citations I previously knew nothing about. More power to you.
(dang, that was long but therapeutic...)
One would hope that they are smart enough to figure this out on their own.
Could not have said it better myself.
Only armed rebellion would have an effect at this juncture ....and that will not happen either
Actually there is a lot that is wrong with the logic used in Roe v. Wade, but inasmuch as they relied on the principle of Liberty as enunciated in Griswold, they were correct that there is a right to privacy, but they took it (for no logical reason whatsoever) to include some kind of fundamental right to abort our posterity. That was never a fundamental right to abortion before 1973 and it was, in fact, a crime in all states at the time the Constitution was enacted.
Griswold was simply distorted to make a traditional crime or moral turpitude into a fundamental Constitutional right by the Roe Court. Roe still needs to be overturned, but Griswold needs to be affirmed.
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