Dada is the sun, Dada is the egg. Dada is the Police of the Police.

7/11/2005

Privacy and the Supreme Court

Amanda makes an incredibly important point:
Anytime a conservative makes the argument that privacy rights are not in the Constitution, I highly recommend perking your ears up because he's attacking more than the right to have an abortion--he's attacking your right to obtain contraception.

...opposition to the right to privacy means that one opposes the underpinnings of Griswold v. Connecticut, the decision that ensures your right to obtain contraception.
Amanda also notes that Scalia and Thomas - whom Bush has identified as his models for future Supreme Court nominations - are generally hostile to the idea of a right to privacy. Thomas said in his Lawrence v. Texas dissent:
My duty ... is to decide cases agreeably to the Constitution and laws of the United States. ... I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy, or as the Court terms it today, the liberty of the person both in its spatial and more transcendent dimensions.
What's kind of weird about this is that when Justice Thomas's confirmation hearings were held, he seemed to be quite able to find the right of privacy in the Constitution. The following are all quotes of his from the hearings:
"My view is that there is a right to privacy in the Fourteenth Amendment."

"I think I have indicated here today and yesterday that there is a privacy interest in the Constitution, the liberty component of the due process clause..."

"I, with respect to the privacy interests, would continue to say that the liberty component of the due process clause is the repository of that interest."

"Senator, as I noted yesterday, and I think we all feel strongly in this country about the -- our privacy. I do. I believe the Constitution protects the right to privacy."

"I believe the approach that Justice Harlan took in Poe v. Ullman and again reaffirmed in Griswold in determining the -- or assessing the right of privacy was an appropriate way to go."

"... my bottom line was that I felt that there was a right to privacy in the Constitution and that the marital right to privacy, of course, is at the core of that and that the marital right to privacy, in my view, and in certainly the view of the Court, is that it is a fundamental right."

"... the Court has found such a right of privacy to exist in Eisenstadt v. Baird and I do not have a quarrel with that decision."

"I think I have indicated here today and yesterday that there is a privacy interest in the Constitution, the liberty component of the due process clause, and that marital privacy is a fundamental right. And marital privacy then would be -- can only be impinged on or only be regulated if there is a compelling state interest. That is the analysis that was used in Roe v. Wade..."

"...with respect to the compelling interest test in the application of that to fundamental rights, fundamental privacy rights, I've said that I have no problem with that. "

"I have said that I had no quarrel with the application of the compelling interest test to the area of privacy cases when privacy is a fundamental right."
Incidentally, Thomas's views about the importance of the 'original intent' of the framers has 'evolved' as well. Here's what he had to say at his hearing:
"It is a constitutional right -- liberty. And once it's in the Constitution, we adjudicate it, we interpret it, understanding what our founders believed, but adjudicate it looking at our history and our tradition, not just what their beliefs were when they drafted the document."

"And in our constitutional tradition, the concept of liberty -- liberty is a concept that has been flexible. It's one that has been adjudicated over time, looking at history, tradition, of course starting with what the Founding Fathers thought of the concept of liberty, but not ending there."

"The world didn't stop with the framers. The concept of liberty wasn't self-defining at that point and that's why I think it's important, as I have indicated, that you then look at the rest of the history and tradition of our country."

"It's not frozen in time. Our notions of what liberty means evolves with the country. It moves with our history and our tradition."
Also, if you do care about 'original intent' - and there's really no reason you should - this article argues that the framers did intend for a right to privacy to be included in the Constitution, but that they simply didn't refer to it as 'privacy', for one simple reason:
..."privacy" in 1776 was a code word for toilet functions. A person would say, "I need a moment of privacy" as a way of excusing themselves to go use the "privy" or outhouse. The chamberpots around the house, into which people relieved themselves during the evening and which were emptied in the morning, were referred to as "the privates," a phrase also used to describe genitals.

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