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The Entrenchment of the Right to Privacy

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I have some reflections on the anniversary of Griswold v. Connecticut. The focus of the article is that conservatives have managed to turn the phrase “penumbras and emanations” into a punchline even though it expresses an idea that is 1)perfectly logical and that 2)everyone agrees with. Douglas’s much-maligned opinion is actually very good. (His concurrence in Roe‘s sister case makes an excellent companion.)

The other key point is that whether Supreme Court decisions become entrenched depends on political and public acceptance, and on this level the right to privacy has become an entrenched norm of American constitutionalism. The last Supreme Court nominee to deny its existence was resoundingly defeated, and we’re not going to see one argue that Griswold was wrong again.

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  • Joe

    Scalia and Thomas clearly think the basic principle of the ruling wrong and Thomas channeled Stewart on “silly laws” in his brief Lawrence dissent. I agree with the last statement to the degree they will admit disagreement openly.

    Slate had an interesting article on the 50th anniversary of Mapp v. Ohio, which spoke of a “right to privacy” and was written by another judicial conservative who supported the concept that liberal nominees can’t support TOO strongly (see Goodwin Liu).

    Anyway, the infantile snickering over word choice regarding a concept that is patently obvious is pretty tiresome, but infantile replies are a dime a dozen these days. The whole constitutional debate against the ACA (down to the very name used for the health law) is stupid. Dangerous, but stupid.

    • Scott Lemieux

      I agree with the last statement to the degree they will admit disagreement openly.

      Right. I’ve been meaning to blog about that Mapp article as well…

  • A nominee might not, Scott, but make no mistake: Scalia and Thomas are chomping at the bit.

    Well, Scalia is.

    • Orrrrrrrrrrrr, what Joe said :-)

  • .-Norman-Thomas-

    …Supreme Court decisions become entrenched depends on political and public acceptance, and on this level the right to privacy has become an entrenched norm of American constitutionalism.

    Well, maybe the political acceptance is (somewhat)there, but the public acceptance is not a “done deal”.

    You throw this out there when at least half the country self-describes themsleves as pro-life.

    • SeanH

      I’ve heard lots of definitions of “pro-life”, but “not recognising a Constitutional right to privacy” is a new one!

    • .-Norman-Thomas-

      That really should have been framed as a question and the question should have been:

      Do you think the same level of right to privacy is recognized by the general public when it comes to abortions?

      • Hogan

        Which has what to do with Griswold?

        • DrDick

          Oops, he slipped and told the whole truth. They do not merely want to make abortion illegal, they also want to outlaw all birth control. Of course, we already knew this, but it is revealing nonetheless.

          • wengler

            Denying sperm access to the egg is murder!

            • DrDick

              Every sperm is sacred!

          • Davis X. Machina

            Those sluts don’t shame themselves, people…

  • Ken

    There is a fairly large fraction of the population (possibly a plurality) who are all in favor of their own privacy, but are less willing to extend that right to other people. So I would say that privacy is entrenched about as well as most of the other rights.

    I am reminded of The Golden Globe by John Varley, in which all humans live in habitats on the other planets and moons. One character muses, “The planetary computers monitor everything; they have to, in order to keep us alive. But it’s all kept safe by the privacy restrictions built into the programs. Every now and then someone proposes lifting those, in order to crack down on crime. So far, every time that’s been put to a vote, it’s failed. I suspect that of those people who vote to remove the restrictions, no more than one or two percent really are saints. The rest would be in for a rude surprise if they ever got their way.”

  • Jeffrey Kramer

    I’ve always assumed, to use another example, that a general “freedom of expression” has been accepted as a “penumbra” of freedom of speech: so a contemporary court would immediately see a state law banning cubist painting as unconstitutional on First Amendment grounds. Is this a correct assumption, or would Scalia object that Madison’s intention was only to protect free political debate, and so such a law should not be struck down?

    • Davis X. Machina

      I don’t know, but I’d guess Thomas wouldn’t mind so long as it was done by a state legislature.

      • Joe

        He is concerned with the “privacy” of people proposing ballot initiatives in the states, so I wouldn’t think so.

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