Constitutionalists who believe John Roberts a net gain from the man he replaced got a reality check on Tuesday. "I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that," Roberts opined. "The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause."

Roberts's interrogator, Wisconsin Senator Herb Kohl, responded by saying he was "delighted" by Roberts's answer. Why shouldn't he be? Griswold was the 1965 case that found a right to privacy that appears nowhere in the Constitution. In addition to its immediate effect of prohibiting states from restricting the sales of condoms and other contraceptive devices, Griswold made possible the grounds used in the Roe v. Wade case to block states from forbidding almost all abortions. While Roberts spoke freely about Griswold v. Connecticut, he refused to comment on Roe v. Wade. On the former case, he takes the liberal position. On the latter case, he takes none. But leave it to wishful conservatives to project their fantasies upon Roberts in regard to Roe and erase his stated opinions with regard to Griswold.

There is too much conservative hand-wringing over this exchange. Roberts took care to note that Griswold was about marital privacy. He took no position on the 1972 case that came after Griswold that expanded the right to use contraceptives to unmarried couples. Much more on this at http://gopliberty.blogspot.com/

I may have missed it, but where in the constitution do you find the right to a fair trial or the right to get married?

The Sixth Amendment affirms the right to a fair trial. There is no right to get married in the Constitution, leaving the states discretion to alter the institution--as has been done in my home state--or not even recognize it if they care to.

I disagree Kris, handwringing over Roberts support of Griswold is in order. The logic of contraception leads ineluctably to abortion (it already did lead in fact) and it isn't simply a matter of expanding an imaginary right to privacy. The problem with denying the states the right to restrict trafficking in contraceptives was on the practical level to allow the free use of abortifacients, that is, the pill. So as a practical consequence abortion became deregulated simply by overturning laws constricting the sale of contraceptives.

But on the deeper, ontological level, the deregulation of contraception by judicial fiat undermined the legal recognition of the nature of marriage by severing sex from reproduction. If conservatives are annoyed about gay marriage they can thank the logic of Griswold. And just sticking to abortion, once sex was severed from reproduction then it was an easy step to reject the "unplanned" consequences of sex when contraceptives fail, and hence we have public support for abortion.

Though I agree with Brian, I guess, Kris is wrong for a more basic reason. Not only (a) is "privacy" as such not protected by the constitution at all, and not only (b) can we not ground a distinction between legislation dealing with married or unmarried people in the constitution, but (c) the SALE of contraception is in no way private--so it wouldn't be protected under a marital privacy rule anyway. This is just nonsense.

The worst part is that Roberts didn't say that he would uphold the decision (which an overly precedent-favoring conservative might say), he said he AGREED with this silliness.

I am as worried about Roberts as the next social conservative, but Brian is surely wrong when he writes "The logic of contraception leads ineluctably to abortion (it already did lead in fact)...." It most certainly does not (and the parenthetical is irrelevant; invalid or unsound conclusions can be drawn from previous cases).

Brian elaborates: "once sex was severed from reproduction then it was an easy step to reject the 'unplanned' consequences of sex when contraceptives fail...." But what, essentially, does the connection between sex and reproduction have to do with the status of the unborn child? Nothing.

Either the unborn child shares the rights and protections of a born human being or it does not. Any relation between that question and the connection between sex and reproduction is purely accidental.

On a Constitutional right to privacy per se, I think that there is some such right (narrowly defined) implicit in, say, the 4th Amendment's protection against unreasonable searches and siezures. Perhaps a case can also be made that privacy is a liberty protected by the 14th Amendment's due process clause (i.e., a definition of 'liberty' will include, implicitly or explicitly, particular liberties).

Now the move from these possible narrow Constitutional rights to a right to privacy which grounds a right to an abortion is an absurdity. The unborn child is not the mother's property (neither a part of the mother's body or what have you). Etc.

Ralph, the problem with saying that there is a right to privacy in the constitution is that it doesn't mean anything, so it can mean anything those in power say it does; it becomes the opposite of a right--an excuse for government to do things arbitrarily. Saying that it is implicit in the 5th or 14th amendments is as silly as claiming that a "right to be left lone" (perhaps my most prized right personally) is in the constitution. OK. According to my right to be left alone, property taxes are unconstitutional. No?

Griswold did lead to Roe, so in a legal sense at least, birth control did lead to abortion. We may find the court's reasoning specious, but their reasoning (i.e., if Griswold then Roe) is the reasoning the used to make the legality of abortion uniform in the 50 states.

Skeptic,

By your rationale, the protections of liberty in the 5th and 14th Amendments are, as they stand, completely vacuous (and therefore, completely worthless). For any attempt to give liberty definition - a definition not provided by the text of the Constitution - would require the interpretation of "those in power."

Ralph, I think that I wasn't clear in my post in that I should have written something like the "judicial logic of legalizing contraception led ineluctably to legalizing abortion." I was referring mainly to the line of judicial reasoning that Dan's post and Skeptic's comments both critique, the logic of the fictitious right to privacy.

My second claim wasn't really meant to be an elaboration of the first. My second claim is that it is an "easy step" (not a logically necessary one) for people to move from accepting contraception which denies "the consequences of sex" to fully denying "the consequences of sex" through abortion. So you are right: the status of an embryo/zygote/fetus/baby is a seperate issue from contraception. I was only speaking towards a theory of how public support for abortion becomes generated by first coming to accept contraception.

Dan,

I think "lead to" is ambigious. Griswold "lead to" Roe in the sense that the Justices who decided Roe used the holding in Griswold as a premise supporting their conclusion. Unfortunately, their argument was invalid. Thus, Griswold "lead to" Roe in the weak sense that any statement can invalidly "lead to" any other, viz., accidentally.

This is a far cry from the "leading to" that is the ineluctable consequence of logic.

Brian,

Sorry I posted my reply to Dan (and mediately to you) before having read your latest post. For the most part, I agree with you.

Though I do think one can accept a limited right to privacy without being committed to a right to abortion. To move from privacy to abortion requires the extra claim that the unborn child is, in some sense, property (say, in the sense that my own body is my property). For no one would concede that, for example, if I torture and murder an adult in the 'privacy' of my own home, the act is protected under a right to 'privacy'.

Cool Ralph.

When I read the 5th and 14th it seems to me that we can possibly say "the right of the people to be secure in their persons, houses, papers, and effects," which is spoken of, as founded on a "right to privacy." However, that seems like very inexact language to me as you indicate by contrasting torturing someone in my home to procuring an abortion.

Rather, can't we just say that the amendment is serving the interest of favoring maximum "liberty" for people in the possession and use of their "persons, houses, papers, and [property]"? That our state legislatures and agents of the state must serve that interest, or default to liberty, UNLESS a legislative or governmental agent or body FIRST follows "due process of law" [14th]?

Therefore, state legislatures, and "the people," are still left with maximum political liberty to legislate in regards to and even restrict the liberty of their citizens. This just has to be done through "due process." So states can regulate the sale of contraceptives or abortion, or pornography, etc.

The only restriction of this political liberty of legislatures (and the people!) is in "mak[ing] or enforc[ing] any law which shall abridge the privileges or immunities of citizens of the United States" [14th]. So the question then is what are those "priveleges" or "immunities"?

Well, I presume they would have to be granted to people by the Constitution right? I am not actually certain what they all are, possibly those rights enumerated by the Bill of rights?

Hmmm, this seems to lead into interesting territory (state legislatures can't restrict the right to bear arms, or freedom of assembly, etc.) and I am starting to think that the 14th Amendment is a quite tricky one . . . Is this the point at which a "penumbra emanates"?

Doesn't the 11th Amendment cover the issue of rights not specifically enumerated?

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Isn't something as basic as a right to privacy implicit in the Declaration's statement that our rights are derived from our Creator and not from government?

Having said that, I would not include in this right to privacy the "right" to perform abortions which, to my thinking, is a public activity unless one were to only perform abortions on one's self.

Nobody,

Performing abortions in the privacy of your own home is less public than selling condoms at a drug store. This is precisely what Griswold found protected by the Cons., the public vending of condoms, because they would be used in private acts.

Griswold was sophistry. The state of Connecticut is small enough that the people of New York use it as a suburb. It is no problem at all to drive out of Connecticut and purchase condoms. This was the first in the effort to expand lazy freedom.

Also, if I have rights not officially numerated, and the State is incorporated into the federal. Then there is no good argument that I don't have the right to not be arrested. We can consider the state's claim that they have the power to arrest me an abridgement of my unenumerated power to not be arrested.

In fact since the states have to realize whatever rights the federal government finds by incorporation principle, no law the state makes prevents me from making an argument that I have the right to do what is prohibited by law. Because laws are dependent on constitutionality, and the consititution says I have all these rights reserved to me.

I'm pretty sure the only sense you can make out of this amendment is that the people refers to the same people in The People vs. Al Capone. That is the representatives of the will of the people, the state government.

Brad says: "By your rationale, the protections of liberty in the 5th and 14th Amendments are, as they stand, completely vacuous." Not at all. They say all kinds of things, e.g., about due process. They don't say anything about having a "right to be left alone" or a "right to have my own bathroom" etc.

Skeptic,

What is the definition of 'liberty' in the 5th and 14th, and what individual liberties does such a definition entail?

Ralph

An interesting (and encouraging) take over at Slate:

http://www.slate.com/?id=2126312&nav=tap2/

Look, Ralph, the word "liberty" can have as broad and vague a meaning as you like or a meaning encompassing many precisely defined particular liberties, I still don't have a "right to liberty" that is protected by the 5th or 14th amendments. I have a right to be deprived of my liberty only with due process of law. Pretty obvious, as far as I'm concerned from the words: "No person shall be ... be deprived of life, liberty, or property, without due process of law." So what's your point again?

Skeptic,

Your hyper-literalism is sophistry. Accordingly, your committed to the untenable view that the 14th Amendment does not enumerate a right to life because, provided the due process of law, the government (state or federal) can take a citizen's life (e.g., a convicted murderer).

Due process of law is required to deprive a citizen of life, liberty and property precisely because citizens have a right to life, liberty and property.

Ralph, oh, I'm a sophist. Hmmm. I won't respond in kind. You're not engaging in sophistry, which at least implies sophisticated and intentional fallacious argumentation. You are just wrong. The right in the due pricess clause is a right to due process, not a right to life, unless by that you mean, a right to not be deprived of life except through due process. Similarly, there is no reason to say that there is a "right to privacy" protected by the 5th amendment in any way a-nalogous to the way the right to freedom of speech is protected by the first amendment, e.g. The "rights" to life, property, etc. insofar as these are protected by the 5th and 14th is really a right to due process in matters about these issues, whereas the right to free exercise of religion (e.g.) is, well, a right to free exercise of religion. Now regarding the phantom and ultra vague right to privacy which is supposed to limit the states and which you claim is in the 5th and 14th, it isn't even a right to due process regarding privacy. It just ain't there at all.

Skeptic,

But why is due process required to deprive someone of liberty? What's so special about liberty? Isn't it the right to liberty?

The right to the free exercise of religion is, in fact, a liberty that can be denied by the due process of law. The religious practice of human sacrifice, for example, is denied by the law. The case is the same with the right to speech, e.g., yelling "fire" in a crowded theater.

I am not advocating a "phantom and ultra vague right to privacy." I think the right to privacy in the Constitution is implicit in the 4th Amendment's prohibition against unreasonable searches. This is privacy narrowly defined, i.e., the right to conceal some property holdings (say, the contents of my house). And insofar as the right to privacy contained in the 4th Amendment is a liberty, it is protected qua right under the 5th and 14th Amendements.

Ralph: So the "right to privacy" is implicit in the sense only that some particularly well defined rights (e.g., re search and seizure) have to do with privacy? Ie., they are a species of a genus, so if the species is included, so is the genus? Look, your saying that there is a special right there protected in the 5th is meaningless/tautological at best and very misleading at worst. Do I have a right to be left alone? Well, yes, if you mean by that that the search and seizure clause is about when/how the govertment can bother me. What do we gain by your way of talking? Nothing. We stand to lose a great deal when it is misunderstood. It's like saying that God became man in order to save animals from sin and death. Well humans are animals so I guess that's true when understood properly. The problem with it should be obvious, though.

In fact, my right to freedom of speech is not "a liberty that can be denied by the due process of law." It can be accidentally affected by other regulation, in the same way that laws against murder can affect religious sacrifices. There is not any DUE process legally capable of abridging these rights unaccidentally. The laws against perjury aren't "due process" ways around the right to freedom of speech. According to your account, any abridgement of speech or religious practice would be constitutional if the legislature passes the law and the executive signs it.