Right to Privacy

Last night Palin said there is an inherent right to privacy in the Constitution. The Supreme Court agrees; they have since Griswold v. Connecticut. But the Griswold decision is not popular with conservatives, not the least of which is that it provides the legal basis for Roe. In a very real way Palin came out against her own party last night, tacitly endorsing those activist judges she probably rails against during her louder moments on the campaign trail.

The McCain campaign hasn't responded to Palin's remarks, but John McCain did make a floor speech back in the 1980s where he states in clear language what he thinks about the right to privacy. Salon has dug up a copy of that speech, made in support of the SCOTUS nomination of Robert Bork, which reads in part:

Now, some of my colleagues are so result oriented that they appear anxious to embrace judges who are willing to bend and shape the Constitution to fit a particular social agenda. That should trouble people of all political stripes. No matter how much we may like the result of a case, we should never feel comfortable creating new constitutional precedents out of whole cloth and binding future generations simply to accomplish a particular end.

Not only is that an inappropriate use of judicial power, but it leaves legislatures incapable of changing the outcome. Congress and State legislatures cannot change Supreme Court rulings when they are based on constitutional grounds, as opposed to statutory interpretation. That is fine when the Court ruling is based on a clearly intended constitutional right. But that is wrong when a fair reading of the Constitution shows no such right was within the realm of intentions ...

The right of privacy was created by Justice Douglas in the Griswold case and was used as the basis of the later Roe v. Wade abortion case. It was created by a Supreme Court opinion which struck down a Connecticut anticontraceptive statute and found various "emanations" and "penumbras" throughout the Constitution which warranted the leap to creating a new right that has still never been fully defined. No one, including Judge Bork, argues that the Connecticut law was appropriate. Judge Bork even testified that there were other ways to strike down the law.

What he -- and many constitutional scholars -- objected to was creating such a new constitutional right when that right could not be found or derived from one of the provisions of the Constitution or our Bill of Rights.

McCain is already walking on unsteady ground in the election. His popularity is sinking and the last thing his campaign needs is to recycle this issue. The American public overwhelming believes that Roe should not be overturned, but even less controversial than that (and likely more popular) is the belief in the right to privacy. McCain cannot win if he has to make a statement (re)announcing that he does not believe the Constitution protects the right to privacy. But right not it certainly looks that he and his running mate fundamentally disagree on this issue. Someone should ask him about it.

Thursday, October 2, 2008