Wednesday, August 03, 2005
Right of Privacy
The court in Griswold and Roe faced a very complex problem in finding a Constitutional basis for the creation of a Right of Privacy without running afoul of the Substantive Due Process analysis discredited after Lochner v. New York.
Griswold attempted to distinguish its holding from Lochner: "We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation."
Unable to point to a Constitutional provision to support their position, the majority argued that various 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."
That is why many supporters of Griswold are finding great difficulty in finding a specific amendment on which to ground the Right of Privacy. Neither could the Griswold court.
Some supporters point to the 9th and 10th Amendments as a basis for a Right of Privacy. The problem with those amendments is that they assume the continued existence of the original doctrine of the Constitution - that the Federal government only those powers specifically granted to it.
This position was abandoned with the massive expansion of the regulatory authority under the Commerce Clause. I doubt that many posters to this site want to revisit that issue.
In dissent, Mr. Justice Black argued that the Supreme Court should overturn statutes only on the basis of a conflict with "particular standards enumerated in the Bill of Rights and other parts of the Constitution." In the "application of 'natural law' deemed to be above and undefined by the Constitution ... [judges] roam at will in the limitless area of their own beliefs as to reasonableness and actually select policies, a responsibility which the Constitution entrusts to the legislative representatives of the people." [from Federal Power Commission v Pipeline Co.]
While the majority in Griswold attempted to avoid the creation of a social substantive due process analysis, as argued by Mr. Justice Black, they failed to do so. Just as the Lochner court substituted its policy views for that of reform legislatures, the Griswold court did the same as to a social issue.
Mr. Justice Stewart captured the essence of the issue and the proper role of judges: "It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legilation is wise and what is not. If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it."
The continued application of substantive due process in social issues has brought this country to the sorry state we now face. Both sides demand ideological purity on the part of potential judges rather than a proper judicial temperment and superior legal skills.
Griswold attempted to distinguish its holding from Lochner: "We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation."
Unable to point to a Constitutional provision to support their position, the majority argued that various 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."
That is why many supporters of Griswold are finding great difficulty in finding a specific amendment on which to ground the Right of Privacy. Neither could the Griswold court.
Some supporters point to the 9th and 10th Amendments as a basis for a Right of Privacy. The problem with those amendments is that they assume the continued existence of the original doctrine of the Constitution - that the Federal government only those powers specifically granted to it.
This position was abandoned with the massive expansion of the regulatory authority under the Commerce Clause. I doubt that many posters to this site want to revisit that issue.
In dissent, Mr. Justice Black argued that the Supreme Court should overturn statutes only on the basis of a conflict with "particular standards enumerated in the Bill of Rights and other parts of the Constitution." In the "application of 'natural law' deemed to be above and undefined by the Constitution ... [judges] roam at will in the limitless area of their own beliefs as to reasonableness and actually select policies, a responsibility which the Constitution entrusts to the legislative representatives of the people." [from Federal Power Commission v Pipeline Co.]
While the majority in Griswold attempted to avoid the creation of a social substantive due process analysis, as argued by Mr. Justice Black, they failed to do so. Just as the Lochner court substituted its policy views for that of reform legislatures, the Griswold court did the same as to a social issue.
Mr. Justice Stewart captured the essence of the issue and the proper role of judges: "It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legilation is wise and what is not. If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it."
The continued application of substantive due process in social issues has brought this country to the sorry state we now face. Both sides demand ideological purity on the part of potential judges rather than a proper judicial temperment and superior legal skills.
# posted by Thomas A. Becket : 8:13 PM
