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Jewish World Review August 9, 2005 / 4 Av, 5765 The myth of a right to privacy By Rich Lowry
http://www.JewishWorldReview.com |
When the Senate confirmation hearings for Judge John Roberts
begin in a few weeks, his Democratic questioners are sure to obsess
on something that doesn't exist: a generalized right to privacy. It
was this non-right that was the focus of the successful attack on
the nomination of Judge Robert Bork, when he was impolite enough to
note that such a right appears nowhere in the U.S. Constitution.
This prompted Democrats to warn that Bork wanted the sex police to
patrol America's bedrooms.
The right to privacy is a natural point of attack for Democrats
since it is at the root of the Supreme Court's lawlessness that has
allowed the justices to anoint themselves as our moral betters and
strike down any legislation they find distasteful or retrograde.
Without it, liberals might have to fight against laws they oppose —
e.g., prohibitions on gay marriage — at the ballot box rather than
hope they get struck down by agreeable judges.
In a draft article for Attorney General William French Smith in
1981, Roberts wrote: "All of us may heartily endorse a 'right to
privacy.' That does not, however, mean that courts should discern
such an abstraction in the Constitution, arbitrarily elevate it over
other constitutional rights and powers by attaching the label
'fundamental,' and then resort to it as, in the words of one of
Justice [Hugo] Black's dissents, a 'loose, flexible, uncontrolled
standard for holding laws unconstitutional.'" Just so.
There are privacy rights in the Constitution. The Fourth
Amendment, for example, prohibits unreasonable searches and
seizures. The entire constitutional scheme is meant to limit
government power and leave people alone most of the time. But there
is not a generalized, abstract right to privacy unhinged from any
constitutional text.
The mischief began 40 years ago in the case Griswold v.
Connecticut, when the court struck down a prohibition on
contraceptives on the basis of a "right to marital privacy." The bit
about "marital" was quickly dropped, and the new discovery became a
general right to privacy.
In Griswold, the court suggested the right might be found in the
First, Third, Fourth, Fifth and/or Ninth Amendments. In other words,
it must be there somewhere, anywhere. But since the right to privacy
is nowhere mentioned, the court had to contend that it resides in
"penumbras formed by emanations." In layman's terms, that means in
partial shadows formed by emissions, which it doesn't take a
constitutional scholar to conclude sounds pretty vaporous.
If Connecticut's contraceptive law was outdated and purposeless,
the answer was simple: for voters to overturn it. Both the
dissenters in the case, Justices Hugo Black and Potter Stewart noted
that they opposed the Connecticut policy, but that didn't make it
unconstitutional.
"'Privacy' [has] functioned as a euphemism for immunity from
those public-morals laws deemed by the justices to reflect benighted
moral views," write scholars Robert P. George and David L. Tubbs.
From a right for married couples to obtain contraceptives, it has
evolved into a constitutional right of homosexuals to engage in
sodomy (in the case of Lawrence v. Texas in 2003) and then the right
of gays to marry, in a 2003 Massachusetts Supreme Court decision.
The court has created rights from nothing before. As George and
Tubbs point out, from 1890 to 1937, it struck down social-welfare
legislation because it supposedly violated a right to "liberty of
contract" that had no constitutional basis. It reversed course in
1937 and admitted it had been imposing its own policy preferences.
The Supreme Court won't return to its proper, limited role in
American governance until it does the same with the mythical "right
to privacy."
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© 2005 King Features Syndicate |
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