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The Entrenchment of the Right to Privacy


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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