November 29, 2022

The Sun Sets on the Right to Privacy

Guest Opinion
By Isiah Smith, Jr. | Aug. 6, 2022

It turns out that all we have to fear is the Supreme Court itself.

Alexander Hamilton thought the judiciary was the least dangerous branch of government since it controlled no armies and lacked spending power. It had neither force nor will. All the judiciary had was its judgments.

Since Hamilton’s time, that judgment power has assumed unparalleled power and control over the most intimate corners of citizens’ lives. The court’s power has grown like mushrooms and fungus in damp darkness and is infecting sacred areas of our lives: whom we marry, whether to have children, and sexual practices in the sanctity of our own home. How do we protect ourselves when, as in Dred Scott, the court decides that we haven’t any privacy rights the court is bound to respect?

Overturning precedents should require more than a politically-driven determination that an earlier ruling was wrong; otherwise, the Constitution and our individual rights would change every time the makeup of the court changes.

The right to privacy, a right we thought settled a half-century ago, is the latest victim to judicial overreach.

Gone is the analytic framework of Griswold v. Connecticut (1965), wherein the court found a right to privacy in the Constitution, even though it is not explicitly provided in the document. This “right to privacy” formed the philosophical basis for Roe v. Wade, giving women the right to autonomy over their bodies.

Griswold was prosecuted under the Connecticut Comstock Act of 1873, which made it illegal to use “any drug, medicinal article, or instrument for the purpose of preventing conception…”. Violators could be “...fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.”

The Supreme Court, in a 7-2 decision, overruled the law as an invasion of the right to privacy, specifically marital right to privacy. The case played a major role in later Supreme Court cases to expand the right of privacy to abortion and LGBTQ rights.

Justice William Douglas’ majority opinion reasoned that many inexplicit rights exist within the Constitution that flow from the “emanations” of other explicitly granted protections. By broadly interpreting the first, third, and fifth amendments, the majority found contraception to be an inexplicit protected right of privacy similarly to the protected right for parents to decide how to raise their children as noted in Meyer v. Nebraska. The majority limited this discussion to the right of privacy within a marriage, arguing that privacy within parts of marriage is an understood right existing long before the Constitution existed.

Justice Douglas asked, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?”

In Dobbs v. Jackson, the answer to Douglas’s impish query seems to be yes, we would. And we would do so with alacrity.

In Dobbs, five black-robed politicians decided that, after a half century, Roe was wrongly decided. The court held, “procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.” Further, “It follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot ‘substitute their social and economic beliefs for the judgment of legislative bodies.’” And since abortion presents a “profound moral question,” the Constitution does not prohibit citizens of each State from regulating or prohibiting abortion.

Citizens of each state therefore get to choose for individual women!

Justice Thomas spoke the quiet part out loud. In his concurrence, Thomas wrote that since the due process clause of the Fourteenth Amendment does not confer any substantive rights, the court should reconsider all its substantive due process decisions because they are “demonstrably erroneous.” That includes the right to purchase and use contraceptives, the right to same-sex marriages, and the right to engage in certain consensual sex acts (sodomy). These rights are not found in the Constitution.

Sir, are these the only rights not found in the Constitution?

On the right to marry outside one’s ethnic group, Thomas is silent! Loving v. Virginia follows the analytical Roe paradigm.

Dobbs presages the sunset of the right to privacy. It is likely the first in a long line of “sunset cases” to come.

Reforming the court is the only rational remedy. Lifetime tenure must go. In other democratic countries, justices do not occupy God-like status as they do in the U.S. They are merely government-appointed employees without lifetime tenure.

We must jettison our Panglossian view of Supreme Court Justices and recognize what they truly are: powerful partisan politicians. Then we can reform the court and give its untrustworthy and malevolent judgments appropriate consideration.

Isiah Smith, Jr. is a retired government attorney.

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