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The law was not enforced at all, and Griswald was actually a set up job to get the case to court, orchestrated by some Yale professors from beginning to end. It was staged, sort of like the Scopes trial. History is just so interesting. I cannot imagine how anyone could find it boring.

It makes their heads hurt.

I'm awful at rote memory. I do better at math and analytical stuff. So history and I have sort of a mixed bag going. Plus, memory, well you know what they say. It's the second thing to go.

... we are debating not becuase we have competing political agendas, but because we have wildly divergent views of how to accomplish the task.

Yes. And that debate is not going on, because the eyes are on Miers, the nominee. ANd one side of that "trusts," and honest trust cannot be compromised, ergo, no discussion. Question trust, and viola, you are disloyal, etc.

You and I have swapped enough notes. Loyalty and the GOP and I goes two ways. ANd I hold pretty high expectations for forthright and honest dealing.

Thanks for the kind words. They mean alot.

It sounds like it is more about the state having to PAY for, and provide the transportation so she can have one.

Yes, I got that in the jist too - forgot to say so in my quick note.

Thanks for the offer of ping - I'm not up to getting into the case at this ime. It may pop up on my radar sometime in the future. I tend to go on an issues-driven basis, and collect a number of cases on the same subject, and I'm not up to doing that, with this. After all, it's just $$. I'm more concerned with saving the lives ;-(

Correct. But Miers saying that she supports Griswold means that she supports the majority opinion (i.e. the controlling opinion).

THe majority in Griswold was not uniform in its rationale for reaching the conclusion. That difference in rationale has ramifications beyond the instant case. Keep reading these, and pretty soon you'll think Ccom Law is like rocket science ;-)

Remeber, these are the majority, not the dissent. I think White got it right, FWIW.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

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, 516 -522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

---

MR. JUSTICE GOLDBERG, whom THE CHIEF JUSTICE and MR. JUSTICE BRENNAN join, concurring.

I agree with the Court that Connecticut's birth-control law unconstitutionally intrudes upon the right of marital privacy, and I join in its opinion and judgment. Although I have not accepted the view that "due process" as used in the Fourteenth Amendment incorporates all of the first eight Amendments , I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted and that it embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution 1 is supported both by numerous [381 U.S. 479, 487] decisions of this Court, referred to in the Court's opinion, and by the language and history of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment, ante, at 484. I add these words to emphasize the relevance of that Amendment to the Court's holding.

---

MR. JUSTICE HARLAN, concurring in the judgment.

I fully agree with the judgment of reversal, but find myself unable to join the Court's opinion. The reason is that it seems to me to evince an approach to this case very much like that taken by my Brothers BLACK and STEWART in dissent, namely: the Due Process Clause of the Fourteenth Amendment does not touch this Connecticut statute unless the enactment is found to violate some right assured by the letter or penumbra of the Bill of Rights.

In other words, what I find implicit in the Court's opinion is that the "incorporation" doctrine may be used to restrict the reach of Fourteenth Amendment Due Process. For me this is just as unacceptable constitutional doctrine as is the use of the "incorporation" approach to impose upon the States all the requirements of the Bill of Rights as found in the provisions of the first eight amendments and in the decisions of this Court interpreting them.

In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 . For reasons stated at length in my dissenting opinion in Poe v. Ullman, supra, I believe that it does. While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.

---

MR. JUSTICE WHITE, concurring in the judgment.

In my view this Connecticut law as applied to married couples deprives them of "liberty" without due process of law, as that concept is used in the Fourteenth Amendment. I therefore concur in the judgment of the Court reversing these convictions under Connecticut's aiding and abetting statute.

Without taking issue with the premise that the fear of conception operates as a deterrent to such relationships in addition to the criminal proscriptions Connecticut has against such conduct, I wholly fail to see how the ban on the use of contraceptives by married couples in any way reinforces the State's ban on illicit sexual relationships. ...

In these circumstances one is rather hard pressed to explain how the ban on use by married persons in any way prevents use of such devices by persons engaging in illicit sexual relations and thereby contributes to the State's policy against such relationships. ...

The traditional due process test was well articulated, and applied, in Schware v. Board of Bar Examiners, supra, a case which placed no reliance on the specific guarantees of the Bill of Rights.

[IOW - White reaches the same result, overturn the CT law, without reference to the Bill of Rights]

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965)

Have you been following that case that Justice Thomas took up this weekend about the prison abortion?

Caught it in passing. Haven't reviewed the underlying cause of action, blah blah blah ...

He stayed the medical procedure pending a chance for the Court to decide to take up the case, and the Court denied cert. The lady is free to get a public-paid abortion, is how my brain processed it without checking close.

Are you interested in it? Want me to check it out?

I'll tell you the antidote for sinking into deep Bush hatred. And this is coming from a sufferer. Spend some time with a couple of liberals. It won't take long. Hell, just have lunch with them. You'll be back on the bus in no time. For me, it was my mother and my sister. One sit down meal with the two of them and I might as well have been Andrew Card.

LOL. Well, not really. You have my sympathy. Those are the worst of situations. I'm on the bus too, but I'd like for GWB to not drive it is such a way that it splits us so far apart.

Aha! Caught you again! Several have directly said she believed in judicial restraint and a strict interpretation. So, why do you leave that out (somewhat conveniently...)?

Ahhh .. I think I've found it. Here it is, and then I'll make my lame explanation.

Cboldt: I'm inclined to believe that Miers would render opinins that are acceptable to my sense of how SCOTUS should rule. But I am very unhappy with the pick.

Then I'm confused.

I prefer an open discussion of Constitutional principle; correct the overreaching by SCOTUS and other courts into hot-button social issues, the balance of powers between the Senate and the President, etc. But instead of a discussion on principle, we are having a discussion on "qualifications," "cronyism," and "stealth."

I don't like that conservaitism is reduced to stealth. It feels like being ashamed of conservatism, or being afraid that conservatism will lose in the marketplace of ideas. It comes off as "chicken" and "conflict avoidance," not just on the President's part, but also on the part of the GOP-lead Senate.

77 posted on 10/07/2005 3:16:23 PM EDT by Cboldt

Okay - at this point in the development of the story, I am following my first gut reaction, which is "We are fighting the wrong battle. This nomination sucks because the nominee is a ciper." Given that overarching sense, I'm trying to steer others that way. To be honest, my comment "I'm inclined to believe that Miers would render opinins that are acceptable to my sense ..." was based on the same trust many have for the nomination as a whole. At that moment, I couldn't picture GWB picking a Justice that was NOT in the mold of Thomas or Scalia. BUt even he did, I don't like the nomination.

And that has pretty much been my theme all along. We're fighting the wrong battle. THe battle should be against "Uncertainty, the nominee."

Since then, having more research gone by the by, I don't think she is a strong performer, and I have serious doubts that she would render opinins that are acceptable to my sense of how SCOTUS should rule.

I reposted that 10/7 piece on the 16th .. to make the point that not everybody was piling on the nominee from the get-go. I know for a fact that I wasn't, and you caught it too.

Link -> 726 posted on 10/16/2005 2:34:14 PM EDT by Cboldt <- repost

I can see where that sequence of posts could reasonably lead a person to see me as a liar. It's no big leap, for sure.

But that's my baggage. I can't very well fix it up - except, but for you calling me out on it, I would not have bothered to explain what changed, and why.

So I am greatful for your challenge, and in your debt.

Correct, but someone may not go as far as outright lying and yet still be 'less than truthful' or 'deceptive'...

Agreed, and I plead guilty on the subject post you called me out on.

More from the dissent ...

I repeat so as not to be misunderstood that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision [381 U.S. 479, 521] of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have. ...

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965)

Aha! Caught you again! Several have directly said she believed in judicial restraint and a strict interpretation. So, why do you leave that out (somewhat conveniently...)?

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.

Aha! Caught you again! Several have directly said she believed in judicial restraint and a strict interpretation. So, why do you leave that out (somewhat conveniently...)?

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?

Quite frankly my head is hurting. Just because one thinks that the SC was correct in seeing Griswold as a privacy issue does not mean for one moment I think Miers competent today when I didn't yesterday.

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 /--

Astros playing tonoght. White Sox won the pennant yesterday (ahhh - sounds like you follow ...). We'll go White Sox. They beat our RedSox.

I knew a 5 year term as the lottery lady was trouble.

The lottery itself dropped from 1st in the nation to 4th -- not sure if the others grew and overtook, but there are some unflattering reports of "game rule changes" that reduced revenue. All very accessible stuff. Dark side had it out and pretty well reviewd by the 8th or 9th of October.

Is the story that there is dirt on Miers, or that the democrats are going to use the hearings to infer that there is?

The latter. And the mudslinging is aimed at Miers and GWB both. This is old news, just emerging.

Old news. Ben Barnes, GTECH, etc. More nominee baggage that the dark side warned about, oh 10 days ago.

In substance, a non-issue. But it lets the DEMs dig up the TX ANG crap all over agin. Maybe Dan Rather can reprise his fake but accurate memos.

How about this fact: I know for certain that you've seen posted here, information that stated Miers own direct judicial philosophy. And yet you claim to be ignorant.

Well, I was being facetious and hyperbolic, and you're right, my comments make me look like a liar. But the direct evidence of her judicial philosophy is mighty slim.

Yes, I think she sees the 2nd as an individual right, not a collective right - based on her having owned a handgun and being from TX. Her advocating that the ABA abortion on demand position paper be submitted to entire membership can be spun either way (not enough data to know if she's a "let the people decide" or if she knew the vote was a foregone conclusion either way).

I'm scratching my head as to other points of view I have, based on evidence. Oh yeah, her TX Bar Journal prose is, on balance, advocaing more of a collective approach to government - e.g., "compassionate conservatism", "we can all help" and a bit of elitism (she wrote of lawyers and the legal profession as social bedrock).

Her personal charity and compassion is admirable. I see that reinforcing a risk of big government spending.

The quality of her writing is awful, IMO. Syrupy and as for substance, fence sitting.

I started off with a very open mind and giving her the benefit of the doubt -- I still have an open mind, but the data I have seen is either neutral or negative, to my point of view.

The input of people who have worked with her? They say she is commited to pro-life, but that cannot be stretched into a judicial philosophy.

And yet you still claim to be ignorant. So please, save the "I'm an honest seeker of truth" routine.

Hey - help me out. We're all in this together. I'm no choir boy, that's for sure. But I do try to be intellectually honest. And have some fun, this board and this issue, while serious, is so darn polarized that I succumb to temptation.

Cheers, from the dark side.

It began from day one to attack personally the motives, loyalty and judgment of anyone who questioned the wisdom of the nomination.

You ask a simple question and get totally ripped apart? Something is NOT right here.

kitty killer

How would you feel about an 8 person supreme court where the next President has an immediate chance to name a justice?

You mean if Harriet Miers loses confirmation, we get to elect a new President?

That sure changes the calculus.

Did you happen to watch Sen. Coburn on C-span 2 this evening? He was giving a LIVE talk to a Young Republicans group.

Nope. I had tube on CSPAN-1, and just now flipped to Baseball. Was it a good presentation?