To ban contraception to married couples too?
In the New Yorker comes this note lost in the shuffle of the NH primary. I sense a pervasive theme of bigger government interference:
Since Ronald Reagan, Republican Presidents (and Presidential nominees) have been committed to overturning Roe v. Wade, the Supreme Court’s abortion-rights landmark from 1973. But as the debates last weekend in New Hampshire suggested, the G.O.P. appears to have taken a more extreme step in terms of rolling back the Constitutional right to privacy.
Since the first time Mitt Romney ran for President, four years ago, he’s been on record reversing his previous support for abortion rights. However, when pressed by George Stephanopoulos in the debate Saturday night, Romney went beyond mere opposition to Roe. He said he thought Griswold v. Connecticut, the 1965 case that first made explicit the right to privacy, was also wrong. “I don’t believe they decided that correctly,” Romney said. In this, the front-runner was eagerly seconded by Rick Santorum, who said the Justices “created through a penumbra of rights a new right to privacy that was not in the Constitution.”
In Griswold, the Court ruled that a Connecticut law banning the sale of contraceptives, even to married couples, was unconstitutional. In the most famous passage from that opinion (which Santorum alluded to) Justice William O. Douglas said, “Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” Later, Douglas said, “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system.”Roe has long been controversial, of course. But Griswold, largely, has not. For example, while John Roberts and Samuel Alito were cagey in their references to Roe in their confirmation testimony before the Senate Judiciary Committee, both of them readily embraced Griswold as a settled precedent of the Court. This is understandable. It is chilling to believe that the Constitution could allow a state to ban married couples from buying birth control. (A few years after Griswold, in a 1972 case called Eisenstadt v. Baird, the Court said states could not ban unmarried people from buying birth control, either.)
I think the New Yorker misrepresented what Gov. Romeny had to say in that debate about contraception as it related to states rights. Obviously, Romney was not familiar with the issue when it was put to him.
I think the New Yorker misrepresented what Gov. Romney had to say in that debate about contraception, privacy, and states rights. Obviously, Romney was not familiar with the issue when George Stephanopolis put the question to him.
I think the New Yorker misrepresented what Gov. Romney had to say in that debate about contraception, privacy, and states rights. Obviously, Romney did not have a position on the issue when George Stephanopoulos put the question to him.
cmike
i am not in a position to say whether romney was misrepresented.
but clearly our great party of individual freedom is not so interested in the freedom of ordinary persons privacy, except insofar as it affects their ability to make money by hurting their neighbors.
Wow rdan I thought you were against Citizens United. But here you are touting political speech by a huge corporation, Advance Publications. Not only that but Conde Nast and Advance are owned by SI Newhouse, a man who is in the 1% of the 1%. We’ll have to report you to the Occupy movement as a representative of the 1% and multi-national corporations.
little john
you are going to hurt yourself if you keep straining your brain in this way.
i hear it can make you go blind.
Mr. Coberly: Trust me on this one: If all the things they say will make you blind really did, I’d be blind as a bat by now.
Regressives sometimes point out that the world “privacy” does not occcur in the Constitution, though it takes a bit of imagination to suppose that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” could possibly mean anything else.
Hartmann had a riff on this last week, and explained that at the time of the Constitution the word “privacy” primarily referred to going to the privy alone. I am unable to verify this as fact.
Cheers!
JzB
little john
you sound blind.
Griswold v. Connecticut
MR. JUSTICE DOUGLAS delivered the opinion of the Court [citations omitted in this excerpt]:
>>>>>…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. 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.”
The Fourth and Fifth Amendments were described in Boyd v. United States, as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.”
…We have had many controversies over these penumbral rights of “privacy and repose.”… These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship.
Such a law cannot stand in light of the familiar principle, so often applied by this Court, that 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.” Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Reversed.<<<<<
CMike
thanks for this. it is something i wish the courts would take more seriously… as i understand it.
i don’t think it is possible to create bright lines between “constitutionally protected” and not…
but to the extent that we want to live in a society where human decency means something we should rise up in horror at laws, and government acts that violate our own sense of privacy… that which we would not have others do unto us…
i don’t think we live in such a society…
wow little john,
how unspecific and vague.
In his concurring opinion, J. Goldberg provides a crucial bit of Constitutional history:
>>>>>[ Footnote 4 ] Alexander Hamilton was opposed to a bill of rights on the ground that it was unnecessary because the Federal Government was a government of delegated powers and it was not granted the power to intrude upon fundamental personal rights. The Federalist, No. 84. He also argued,
“I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power.”<<<<< …continued
continued…
From the body of J. Goldberg’s opinion:
>>>>>This Court, in a series of decisions, has held that the Fourteenth Amendment absorbs and applies to the States those specifics of the first eight amendments which express fundamental personal rights. 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.”
The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected. [Footnote 4]
In presenting the proposed Amendment, Madison said:
“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment].”
Mr. Justice Story wrote of this argument against a bill of rights and the meaning of the Ninth Amendment:
“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.”
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.”<<<<<
CMike
thanks again. and thands to Mr Justice storey
What was wrong with Hamilton’s argument was that in the absense of a Bill of Rights it would always be possible to assert that those non-enumerated rights he was relying on did not in fact exist. creating “the power” to restrict those non-enumerated rights would be far easier than creating a power to restrict specifically enumerated rights.
but, as we have seen, even that isn’t very hard if the people are suitably misled.
meanwhile bad as it is to have the government legislating the private behavior of citizens, it is far more dangerous to allow the government to arrest a “suspect” on the say-so of the secretary of defense and imprison him without due process… as in speedy trial by his peers.
not, again, that the peers can be counted on to reject bad evidence… but it was at least some protection. now, thanks to the Bush Obama adminstration we don’t even have that. I can hardl wait to hear the SC rationalization.
rdan
maybe i can help little john out
little john appears to believe that we all know exactly what he knows, no more, no less. and therefore any disagreement we may have with him can only come from moral obtuseness or mental insufficiency.
as far as I can tell his argument is that agreeing with, or even reading, a political opinion in a publication owned by a corporation is the exact same thing as allowing corporations to fund political elections. he might have a point… a kind of reductio ad absurdum.
i, myself, tend to be leery of claims of logic. little john, and perhaps john roberts would have us repeal the first amendment if we wish to restrict campaign donations.
but i would be willing to settle for a more practical “logic.” recognize that as things are “campaign money” seems to have a more direct, and possible controlling, effect on elections that is too dangerous to the republic to be allowed. it is sufficient evil that “the corporations” essentially own and control the media. allowing them to in addition own and control the candidates may be the sort of “excessive free speech” that an earller court found “unprotected” as shouting fire in a crowded theater. at the time, if i remember, the fire shouters were those who were against a war, arguably against the corporatist interests. now that the corporate interests are shouting fire in a crowded theater perhaps a colorable case could be made against using “free speech” as a rationale for bribing congress.
CMike
thanks again. and thanks to Mr Justice Story
What was wrong with Hamilton’s argument was that in the absense of a Bill of Rights it would always be possible to assert that those non-enumerated rights he was relying on did not in fact exist. creating “the power” to restrict those non-enumerated rights would be far easier than creating a power to restrict specifically enumerated rights.
but, as we have seen, even that isn’t very hard if the people are suitably misled.
meanwhile bad as it is to have the government legislating the private behavior of citizens, it is far more dangerous to allow the government to arrest a “suspect” on the say-so of the secretary of defense and imprison him without due process… as in speedy trial by his peers.
not that the peers can be counted on to reject bad evidence… but it was at least some protection. now, thanks to the Bush Obama adminstration we don’t even have that. I can hardly wait to hear the SC rationalization.