Wednesday, August 10, 2005

Right to Privacy ClearingHouse

Because others do it better, I'm including posts from DailyKos and AmericaBlog about the right wing and the Right to Privacy:


Does John Roberts agree with the National Review?:

When the Senate confirmation hearings for Judge John Roberts begin in a few weeks, his Democratic questioners are sure to obsess on something that doesn't exist: a generalized right to privacy. It was this non-right that was the focus of the successful attack on the nomination of Judge Robert Bork, when he was impolite enough to note that such a right appears nowhere in the U.S. Constitution. This prompted Democrats to warn that Bork wanted the sex police to patrol America's bedrooms.

. . . In a draft article for Attorney General William French Smith in 1981, Roberts wrote: "All of us may heartily endorse a 'right to privacy.' That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label 'fundamental,' and then resort to it as, in the words of one of Justice [Hugo] Black's dissents, a 'loose, flexible, uncontrolled standard for holding laws unconstitutional.'" Just so.

The mischief began 40 years ago in the case Griswold v. Connecticut, when the Court struck down a prohibition on contraceptives on the basis of a "right to marital privacy." The bit about "marital" was quickly dropped, and the new discovery became a general right to privacy.

. . . If Connecticut's contraceptive law was outdated and purposeless, the answer was simple: for voters to overturn it. Both the dissenters in the case, Justices Hugo Black and Potter Stewart noted that they opposed the Connecticut policy, but that didn't make it unconstitutional. . . . The Supreme Court won't return to its proper, limited role in American governance until it does the same with the mythical "right to privacy."


Does Roberts Oppose the Right to Privacy?

Is that what his former Reagan Justice Department colleague, Bruce Fein, is telling us? The Washington Post has a front page article that documents how the White House is withholding the papers of John Roberts:

Thrown on the defensive by recent revelations about Supreme Court nominee John G. Roberts Jr.'s legal work, White House aides are delaying the release of tens of thousands of documents from the Reagan administration to give themselves time to find any new surprises before they are turned into political ammunition by Democrats.

For me, this is a key paragraph:

While serving in the Reagan and Bush administrations, for instance, Roberts argued against affirmative-action quotas and other civil rights remedies that conservatives regarded as reverse discrimination, and he expressed deep skepticism about what he called the "so-called right to privacy" that underpins the constitutional right to abortion."

They should be embracing those memos," said Bruce Fein, who worked with Roberts in the Reagan Justice Department. "They are squandering the opportunity to move public perception."Embracing those memos means Roberts wants to overturn the right to privacy. Only in warped right wing world could that be viewed as a positive that would move public perception.

Fein wrote an op-ed for the Reverend Moon's paper on August 2, 2005 that trashed the right to privacy. He and Roberts were colleagues in the Reagan Justice Department and exchanged memos on that subject. Fein is a hard-core right winger who presumably knows something about Roberts legal views as he intimated in his column:

In Lawrence v. Texas (2003), the court again highlighted the nonconstitutional moorings of the right of privacy. Justice Kennedy discerned a right to homosexual sodomy from the penumbras of the due process clause of the Fourteenth Amendment. Its Framers, the justice insisted, had been blind to the oppression his generation recognized in searching for greater freedom. In other words, if the true meaning of the Constitution does not ordain a liberal agenda, the justices should entertain a false meaning that does the trick.

Judge Roberts has awakened vocal opposition from the female Democratic six and their ideological allies because he disputes the view of the Griswold-Roe-Casey-Lawrence precedents that constitutional law is politics by other means. What liberals fear is an obligation to convince the American people as opposed to a handful of justices that their agenda should be law.

If Roberts opposes the Griswold-Roe-Casey-Lawrence precedents, we're in serious trouble.

That means he opposes the right to privacy. The right wingers not only want to overturn Roe v. Wade, they want privacy rights gone. As Fein made clear, that means gay rights too. Nothing will be sacred. Overturning the right to privacy is an ultimate goal of the theocrats.

This is really serious stuff. If Roberts opposes the right to privacy, we have to know. After all the missteps, the right-wingers will want to know that he is on their side on this one.

I don't know if it's as baffling to you as it is to me to hear conservatives who claim to want less government and greater individualism, loudly opposing and ridiculing the Right to Privacy, particularly since the fourth amendment, with its prohibition against unlawful search and seizures, and the ninth amendment, with its stipulation that any right or power not expressly identified as a specific right by the proceding shouldn't be interpreted as not existing, would appear to support one. Me thinks this issue takes the cape off of the conservative movement's true character and agenda. Would that we take advantage of this opportunity.

In any event, the right's views on Privacy should alarm you. If it doesn't you aren't paying attention.


The Rogue Progressive said...

If progressives wanted to push the debate away from the right a bit, taking on their idiocy in pushing stupid constitutional amendments might be something to emulate.

Why not start a campaign for an amendment that guarantees a right to privacy for all individuals (citizens, whatever) in the United States? What a beautiful hammer it would be against the right, who would no doubt oppose it.

Bulworth said...

yeah there was some mention of this on one of the blogs...

at least make conservatives come out against it.