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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. "
It’s a tax.
I don’t care how they squirm, how they wiggle or mix their words, whatever doublespeak they use.
If Congress mandates you pay money, no matter who you pay it to, it’s a tax.
A capitation tax.
Subject to apportionment.
A tax on every man, woman, and child.
Well, except illegals.
Oh WOW! This is great. Please add me to your ping list. Thanks.
Griswold is, in my mind, one of those cases that requires multiple readings. Way back in ‘96, when researching my written requirement to graduate law school I ran across a Con. Law professor’s speech regarding Griswold and “penumbras.”
He was a screaming leftist, who hated my premise that the second amendment was a fundamental, individual right. But when we had a discussion, using his logic against him, he finally came around. He didn’t like it, but he had to admit that my reasoning was consistent with his and with the Griswold Court.
His argument was that the use of “penumbra” was an extremely intentional act. The word is associated with eclipses (http://www.merriam-webster.com/dictionary/penumbra) and this professor, in analyzing Griswold, postulated that the Bill of Rights, in terms of an eclipse, would be the “body” interposed between the sun (natural rights) and the earth. (activities seeking to be regulated)
His theory of constitutional interpretation/limitations on government basically said that look at the unenumerated-right activity (area on the earth) where government regulation is sought and determine if that activity is within the actual shadow (fundamental right = strict scrutiny) or the penumbra (strict to mid [can’t remember the word for this level] scrutiny) or outside the shadow (rational basis) to see what level of scrutiny should be afforded the legislation.
His premise is based on the theory that the enumerated rights all spring from, and are to an extent inter-related to, certain natural rights (privacy, be left alone by government...you name it based on Locke, Hobbs, etc...) and the Griswold Court, recognizing this fact choose to use a word that describes a part an eclipse to describe the nature of the relationship between enumerated rights, natural rights and government.
I realize people get their panties in a bunch talking about “penumbras” but the libertarian in my likes the analysis...and getting that pantywaist leftist to agree that using that analysis carrying a concealed weapon would fall in the penumbra of the second amendment was priceless.
Sure. Its a public document. Here's a link to the full SCOTUS decision
GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965)I always save to a PDF version (Firefox addon)
bump
Do we not also have rights under the 4th that are being denied to us under this bill?
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.
How am I secure in my person why the Gov now makes decisions for what I do with my own body on the most basic act of health care?
Since the bill also calls for access to our medical records, bank accounts and the ability to take monies out of said account without judicial review, I’d think we’d have a case on this.
To me this bill in effect repealed the 4th Amendment - and I do not believe there is a legislative body that can repeal any of the Bill of Rights through Amendment or law.
I read in some emanation or penumbra that Obama is an asshat!
BTTT
Your thoughts?
In spades
That requirement is already in the bill. IIRC it can be found in the “Death Panel” section wherein the “elderly” need to meet with someone annually to be re-evaluated.
Wonderful essay, P-Marlowe! Thank you so very much!
The right to be let alone (sigh) if only.....
“The issue in Roe is effectively when the rights of the unborn are vested (a subject that the Supreme Court evaded in the decision).”
Along with deciding whether or not the thing in utero, the thing that could, before birth, inherit and be murdered by other than his mother, was a PERSON. Absolutely incomprehensible decision on multiple levels.
And Griswold wasn’t a whole lot better, a natural precusor to dozens of judicial legislations. And—oddly or not so oddly, on the heels of the demise of the House Committee on UnAmerican Activities (another Democrat triumph).
The principle in Griswold re: the prohibition of the state to interfere with "fundamental liberties" not specifically enumerated in the Bill of Rights was clearly a positive step, especially in light of the wholesale destruction of liberties during the New Deal era. The principle of Griswold is sound and that principle is that there are certain individual liberties that the state has no business interfering with and that they have no legitimate authority to do so.
The principle was terribly distorted in Roe in that the Court took the opportunity to create a "fundamental right" to kill unborn children, a supposedly "fundamental" right which had never before existed in the history of mankind.
The right to be left alone, the right to live your life peacefully without any unnecessary government intrusion was very forcefully enunciated by Justice Stewart in his concurring opinion in Griswold, and this is an opinion which I believe goes back to the founding principles of our Republic. Douglas' Court opinion was not as forceful and really was not all the coherent. I frankly think Douglas' opinion was somewhat incoherent on purpose because Douglas saw in this case the future opportunity to create a fundamental right to abortion and then to protect it under the ninth amendment (clearly an abortion of the whole principle of judicial restraint).
No, I think Griswold was a good decision in that it reaffirmed the rights of the individual over that of the government. I think it is a good decision to use to argue that the government has no right to force anyone to (among other things) purchase any insurance policy or to interfere with the legitimate private decisions of a person whether to buy one policy or another or whether to not buy any policy at all.
bookmark
“May we copy and distribute?”
That would be nice. Any objections?
Agree with you on Roe, but decidedly not on Griswold. Nothing in the decision did or could enhance the Bill of Rights. I agree with one of the justices who claimed it was a “silly” decision. How can anyone at any time be assured of privacy? Do we not already have the “liberty” to TRY to preserve our individual privacy? But that’s the best we can do; a law doesn’t GIVE us that privacy any more surely than the law against murder keeps us from being murdered. Privacy, like safety which, some might argue, is a higher good than privacy and likewise unmentioned in the Constition, simpmly can’t be legislated. As a Catholic, my notions of the integrity of this decision are most definitely biased and confirm for me the path Pius X predicted: Divorce, Contraception, Abortion, Homosexuality, Euthanasia. Nearly all these natural-law violations are now lawful thanks at least in part to the inanity of Griswold.
But I’ve got to admit that I’d find it particularly delicious if Griswold happened to thwart Obamacare.
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