Wednesday, August 03, 2005

Do married couples have a right to contraception?

Roberts Says "No":
The article approvingly quoted from a dissenting opinion by Justice Hugo Black in a 1965 court decision, in which the majority held that a Connecticut law forbidding the use of contraceptives was unconstitutional. Black's opinion, as cited in the draft, complained that the court had used "a loose, flexible, uncontrolled standard for holding laws unconstitutional." The draft article said that "the broad range of rights which are now alleged to be 'fundamental' by litigants, with only the most tenuous connection the to Constitution, bears ample witness to the dangers of this doctrine."

The draft released from Roberts's files at the archive does not have his name on it, but a memo to Roberts from Bruce Fein, who then worked in the Justice Department, offers suggested changes on "your draft." Fein said in an interview yesterday that "my judgment is yes, that John wrote it."
Griswold v. Connecticutt is the first ruling that laid out a broad right to privacy, the same right used to justify Roe v. Wade.

A simple libertarian reading of the Constitution says that the government only has those rights specifically granted to it, any other rights remain to the people. Hence, the first question you have to ask when the government passes a law which infringes on some right is not "Do you have some right granted to you?" but "Does the government have some specific right to infringe on a citizen's rights?" That is why the 9th amendment was passed, and without the 9th amendment, the constitution wouldn't have been ratified.

So you don't ask, does the public have a right to privacy?, but does the government have a right to infringe a person's privacy?

"Privacy" is not code for abortion. It's protection against government databases, or government access to private databases like those of your insurance agent, your bank, or your credit card company. Should the government be able to track your internet usage and credit card receipts and derive your movement patterns and track you through your day?

That's what I'm talking about in terms of privacy.

The decision in Griswold goes beyond the simple libertarian position above. It argues that, while a right to privacy is not specifically laid out, the Bill of Rights does grant various aspects of personal privacy, and the 9th amendment simply fills in the gaps, including to medical privacy and privacy between married couples.

If this right to privacy is not protected by the Courts it is an invasion not just of that right, but of any other right not protected in specific terms. Freedom to travel without internal passports, a right not to have our DNA preserved and sorted through by government agencies, and so on and so forth.

These are problems unimaginable by the founding fathers, but the principles that drove them drive us still. No one can doubt that the spirit that demanded the Bill of Rights, including an amendment forbidding the quartering of soldiers in people's homes without permission, would have opposed the government's intrusion into the bedroom.

At least, I thought no one could. Turns out, our next supreme court justice might think that, unless someone is ready to filibuster him or a few Republicans are ready to vote against him. Here's hoping.