Russell and Duenes

Contraception, Privacy and “Penumbras, Formed by Emanations”

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In 1965, the Supreme Court struck down a Connecticut statute that banned not only the use of contraceptives among married couples, but also the dissemination of information and counsel in favor of their use. The wisdom, or lack thereof, of such a statute is not primarily at issue for me. Though I think the widespread acceptance and use of contraception is damaging to the world in many ways, I don’t believe such use should be criminalized. What is of paramount importance for us today, however, is the manner in which the Court abolished the Connecticut law.

In writing for the majority, Justice William O. Douglas argued that the Constitution – and in particular the 1st, 4th, 5th, 9th and 14th amendments – and previous cases based upon them, contain “specific guarantees” that “have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy” [Emphasis mine].  Justice Goldberg, in his concurring opinion, went further. He argued that “the concept of liberty” is not restricted to the concrete words of the Bill of Rights, and that such liberty “embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution.” Finally, Justice Harlan, in another concurring opinion, goes the farthest. He dispenses with the niceties of trying to ground the “right to privacy” in any other amendment than the 14th: “The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.”

But Harlan really gives the game away when he says that he heartily agrees with “judicial self-restraint,” yet believes that it will be brought about not through a sound and proper exegesis of the Constitution itself, but rather “only by continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms.” In other words, the text of the Constitution itself is an after-thought. Judges must look to “penumbras,” “emanations,” and appeals to vague notions of “liberty” and “privacy” in order to decide what laws are suitable.Whatever “basic values” the judges have will then determine what is lawful.

Now, where is all this going, and why do I seem to be caught up in writing about Supreme Court cases recently? I’ll tell you plainly. There was certainly a lot of jurisprudence about the 14th Amendment prior to this Griswold case. But in Griswold the Court came out very clearly in asserting the Constitutional “right” to privacy, in this case, narrowly tailored as “marital privacy.” But from this penumbra came the decision seven years later in Eisenstadt v. Baird to extend “privacy” more generally to non-marital couples, which led the Court a year later to find that, lo and behold, abortion also fell under the right to privacy, which led to their decision in Lawrence v. Texas, stating that consensual sodomy (and really any other sexual act) is protected under the privacy right, which leads to this present moment, when it is highly likely that the case in favor of “gay marriage” will very soon come before the Supreme Court. And you can take a wild guess as to how Sonia Sotomayor and soon-to-be Justice, Elena Kagan will view the issue of “gay marriage” and the Due Process Clause of the 14th Amendment. As I said, it’s been coming down the pike for some time.

Which points up the prescience of Justice Black’s dissenting opinion in Griswold. He rightly asserts,

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term “right of privacy” as a comprehensive substitute for the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” “Privacy” is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I have expressed the view many times that First Amendment freedoms, for example, have suffered from a failure of the courts to stick to the simple language of the First Amendment in construing it, instead of invoking multitudes of words substituted for those the Framers used.

He continues,

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 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.

Well guess what? It’s already been largely achieved, and if Mr. Obama and the Democrats have their way, it will be entirely achieved. Sotomayor and Kagan are the justices who have been appointed to achieve it. That’s the significance of all this, and that’s why their accession to the bench is so problematic, to say the least. As Black warned 45 years ago, “Any limitation upon their using the natural law due process philosophy to strike down any state law, dealing with any activity whatever, will obviously be only self-imposed.” And when once justices, freed from the Constitutional text, stop imposing “judicial restraint” upon themselves, as they did most egregiously in Roe v. Wade, then truly terrible things become possible under the so-called “right to privacy.”



Written by Michael Duenes

July 23, 2010 at 9:53 pm

One Response

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  1. Keep doing this, although without Jesus I would be in the pit of despair reading things like this.

    Duke Dillard

    July 24, 2010 at 2:33 pm

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