Kooks of the Month (KotM): Robert P. George and David L. Tubbs
The 18 July 2005 issue of "National Review," a flagship magazine of US
"conservatism", ran an article calling for reinstatement of bans on
birth control even for married couples. Legal writers Robert P.
George and David L. Tubbs excoriated the USSC's <i>Griswold v.
Connecticut</i> decision (1965) declaring such bans unconstitutional.
Though apparently not accessible on "National Review"s own web site,
their article can be found at:
http://www.catholiceducation.org/articles/abortion/ab0099.html
Quoted text copyright (c) 2005 by "National Review"
"The Bad Decision That Started It All
[by]" ROBERT P. GEORGE & DAVID L. TUBBS
"Forty years ago, in Griswold v. Connecticut, the Supreme Court of the
United States struck down state laws forbidding the sale,
distribution, and use of contraceptives on the basis of a novel
constitutional doctrine known as the “right to marital privacy.”
[...]
"As the courts push the “privacy” doctrine further and further"
[eg. abortion rights; repealing sodomy laws]
", public criticism keeps pace. Griswold, however, has received little
attention. Even harsh critics of Roe and Lawrence are loath to say
that Griswold was wrongly decided. Most of those who worry about the
judicial abuse of the right to privacy do not want or expect the
Supreme Court to revisit the case. Yet the cogency of any serious
critique of “privacy” may depend on the willingness to reexamine the
roots of the doctrine in Griswold.
"Consider abortion. Conceding the correctness of Griswold gives a huge
advantage to the defenders of Roe and Casey. They benefit because so
many influential jurists and scholars say that the “inner logic” of
the contraception cases must yield something like Roe. Outsiders may
regard this argument with skepticism, but its purpose is clear: It
tries to smooth the road from Griswold to Eisenstadt to Roe — and
beyond."
[HSC:
The privacy argument does not necessarily extend from victimless
activities (contraception, drug use, sexual positions, etc.) to
abortion, where one can argue that the embryo or fetus is a victim
(with increasing persuasiveness as the pregnancy approaches closer to
term). As part of a general Constitutional settlement, it would be
better to give abortion authority back to the States, apart from rape
(Thirteenth Amendment) or threat to the mother's physical health
(self-defense -- Ninth Amendment).
Side note: a Constitutional settlement should give the States other
divisive social issues as well, e.g. drugs, death-with-dignity.]
[...]
"The lack of scholarly engagement with Griswold partly explains the
myths now surrounding it. Exposing those myths further undermines the
arguments for a generalized right to privacy.
"Myth #1: The Connecticut laws were “purposeless restraints,” serving
no social interest.
"Supreme Court justice David Souter is one of several jurists to make
this assertion. The confusion arises from Griswold, whose majority
opinion nowhere identifies a legislative purpose.
"For anyone who cares to look, the purposes of the laws are apparent
in the record of the case: Connecticut sought to promote marital
fidelity and stable families by discouraging attempts to avoid the
possible consequences of non-marital sexual relations through the use
of contraceptives."
[HSC:
but the Connecticut statute didin't do that. On the contrary, it
punished and meddled with *marital* sexual relations.]
[...]
"Myth #2: The decision in Griswold rested on some overarching or
time-honored constitutional principle.
"Ostensibly, that principle was “privacy.” But the Griswold doctrine
would have been unrecognizable to the Supreme Court even a few years
earlier. In Gardner v. Massachusetts (1938), for example, the Court
dismissed a similar challenge, noting that the suit failed to present
“a substantial federal question.”
"In the majority opinion in Griswold, Justice William O. Douglas
referred — as comically metaphysical as it sounds — to “penumbras
formed by emanations” of specific constitutional guarantees as the
source of the new right. He had nothing else to go on."
[HSC:
The phrase "penumbras formed by emanations" is easy to parody. But
check out the thoughtful concurrence by Justice Goldberg
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/griswold.html
invoking the Ninth Amendment. Maybe it never occurred to the Founding
Fathers that clerical busybodies would intrude into the marital
bedroom, but the catch-all Ninth Amendment was added with just such
contingencies in mind.]
[...]
"Myth #4: The legislation invalidated in Griswold might be widely used
again if the case was overturned.
"This line was often repeated in 1987 when Robert Bork was nominated
to the Supreme Court. Meant to frighten ordinary citizens who approve
of contraceptive use, this scenario simply fails to acknowledge
changes in public opinion since 1965. Laws like those struck down in
Griswold clearly have little chance of passing today even in the most
conservative states."
[HSC:
You sound like a gun-banner arguing that gun-rights activists
shouldn't be upset about his attempts to nullify the Second Amendment:
he thinks disarming honest citizens is a good idea, but -- trust him
-- he isn't planning to do it in the next five minutes!
How much can today's Far Right be trusted? In answer, note how
effectively Right-to-Rape activists have been stonewalling emergency
contraception for rape victims
http://www.aclu.org/ReproductiveRights/ReproductiveRights.cfm?ID=17923&c=225.]
[...]
" The Court’s confession of error in repudiating its Griswold
jurisprudence, far from harming its reputation, would enhance its
prestige. We have no doubt that the same good effect would redound to
the Court if the justices were candidly to speak the truth: The idea
of a generalized right to privacy floating in penumbras formed by
emanations was a pure judicial invention — one designed to license the
judicial usurpation of democratic legislative authority."
[HSC:
There is a term for "democratic authority" intruding where it has no
business -- "mob rule." The Bill of Rights (including the Fourth and
Ninth Amendments) was written to protect individual rights from mob
rule, even if courts have sometimes been slow to realize it.]
[end of quotes from article]
Considering "National Review"s influence on right-wing thought, this
article shows how far American conservatism has sunk from the days of
Barry Goldwater, who wanted goverment off one's back, out of one's
wallet, and out of one's bedroom.
For another ridiculous argument by the Far Right, check
Mark R. Levin's piece
http://www.nationalreview.com/levin/levin200503140754.asp
Quoted text copyright (c) 2005 by "National Review"
" If you look in the Constitution, however, you will find no general
“right to privacy” any more than you will find a right to abortion —
and for good reason: It’s not there. The framers assumed no general
right to privacy because, to state the obvious, criminal and evil acts
can be committed in privacy. Criminal codes are full of such examples
— from murder to incest to rape and other crimes."
[end of quote]
There is an obvious difference between contraceptives and "murder to
incest to rape" -- no victim.
--Hugo S. Cunningham
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