Privacy vs. Penumbra

by Kagro X

Last month, Plutonium Page asked what the replacement of Justice Sandra Day O'Connor might mean not just for issues of abortion, but also of birth control. Specifically, she asked about Griswold, noting that the right to privacy recognized in that case laid the foundation upon which Roe v. Wade was later decided.

In the discussion that followed, it was generally agreed that most people felt that O'Connor's departure left Roe at risk, but not Griswold. Abortion, most reason, is one thing. But nobody would stand for criminalizing birth control. But I was not so sure:

Those who have doubts about whether or not Griswold would come under direct assault come from a place we'd all like to think makes good sense. But having received by legal education from the neo-con sympathizing, law & economics-trained, Federalist Society professors, I can tell you that when the case is discussed at the George Mason University School of Law, the "poison word" isn't "abortion." It's "penumbra."

What I actually should have said, of course, is that when that line of cases is discussed, because Griswold didn't deal with abortion.

But now, the news:

From Bloomberg.com:

Memos U.S. Supreme Court nominee John G. Roberts wrote two decades ago questioning whether there is a constitutional right to privacy will likely draw scrutiny at his Senate confirmation hearings.

[snip...]

In a Dec. 11, 1981, memo to his boss, Attorney General William French Smith, Roberts referred to a comment by former Solicitor General Erwin Griswold that derided the ``so-called `right to privacy''' that formed the basis of the Supreme Court's 1973 decision in Roe v. Wade that legalized abortion nationwide.

Griswold, also a former dean of Harvard Law School, was ``arguing as we have that such an amorphous right is not to be found in the Constitution,'' Roberts wrote in the memo, among papers released by the National Archives and Records Administration in advance of his Senate confirmation hearings set to begin Sept. 6.

My recollection of my own law school introduction to Griswold was, as I said, that the "penumbra" language upon which the "right to privacy" was built was considered to be literally laugh-out-loud material. Now, that same brand of cocky, ultra-aggressive conservatism, which is also much in evidence in Roberts' early memos, is preparing a perch for itself on the Supreme Court. And while it may not be birth control that he has in his sights, can anyone think of a less opportune moment than this one -- in the thick of the Global War/Struggle on/Against Terror/Violent Extremism, and living under the still-untested boundaries of the USA PATRIOT Act -- to reopen the question of whether or not the right to privacy even exists?

Comments

[Kagro X]

Just to kick things off here, I present from the Madison, WI Capital Times, Abortion foes take aim at contraceptives:

Abortion rights activists have long accused abortion foes of waging a covert war against contraceptives.

Often they were accused of being paranoid.

Now at least one powerful anti-abortion lobby in the state is copping to the charge.

"By outlawing contraception, you're closer to outlawing surgical abortion," says Matt Sande, director of legislative affairs for Pro-Life Wisconsin.

Sande says the 1992 Supreme Court ruling that narrowly upheld Roe v. Wade - the court's landmark 1973 decision legalizing abortion - forces the hand of abortion opponents because it reasoned that abortion was the legal fallback for contraceptive failure.

"So if, as the pro-life community, you're trying to outlaw surgical abortion but the court has told us its legal basis is founded on the necessity of abortion, shouldn't the pro-life community begin to take a look at contraception?" Sande says.

"We're trying to overturn Roe v. Wade, but the court is pointing us over here," he adds. Those who don't turn their attention to trying to outlaw contraception at this point, Sande says, hurt the anti-abortion cause.

Getting at Roe by way of contraception, which by necessity challenges Griswold.

[al-Fubar]

"Penumbra" was an unfortunate and awkward choice of word, but what do the George Mason law professors make of the 9th Amendment? Do the Federalist Society types really not believe that the framers had an expansive conception of rights?

I know nothing of the law but what I've picked up from reading history, but surely a right of privacy is ancient in the common law tradition. Didn't Sir Edmund Coke write something like "A man's home is his castle. The rain may enter, the wind may enter, the cold of winter may enter, but the King of England may not enter?"

-- Rick

[jonnybutter]

can anyone think of a less opportune moment than this one -- in the thick of the Global War/Struggle on/Against Terror/Violent Extremism, and living under the still-untested boundaries of the USA PATRIOT Act -- to reopen the question of whether or not the right to privacy even exists?

Oh boy, are you right - not to mention the IT revolution we're in the middle of....

Do you have any idea what the nature of his comment to Smith was?

[emptywheel]

Kagro

Don't know if you caught Sunstein on Roberts at all (I heard an NPR interview, which was quite good). But he was looking at the same issue.

[James E. Powell]

What's wrong with penumbras? Is it because the average person doesn't know what it means? The word was chosen to describe "emanations" from enumerated rights that had been recognized by the Supreme Court for years before Griswold. The big change in Griswold was that 'privacy' was held to encompass sexual activity. The notion that adults have sex outside of marriage drives a lot of Americans crazy. Hypocrites and prudes.

Believe me, if the Supreme Court decided that there were 'penumbral' rights that protected wealth, not one of these 'strict constructionists' would have a problem with it.

[Kagro X]

'wheel - I haven't heard Sunstein, I'll have to look into it.

JEP - Maybe it sounds French to them. Of course, you don't need to look to penumbras to protect wealth, as it is most broadly defined. That is, as property.

[Kagro X]

Rick -- I've been thinking about it, and to tell you the truth, I can't remember anything my George Mason law professors said about the 9th Amendment. Which I guess tells you something.

[dksbook]

I am so grateful that y'all really smart folks are on this one, I tell ya. This 56 year old grandma has been screamin' fer years the religious right would be going after birth control - and don't you dare blame just the Catholics for this one! It is, I believe, their payoff from the religious right for gettin' in bed. The RR is the john, the RC is the whore in this. And forgive *my* French.

[4jkb4ia]

George Mason has a law school!?

[4jkb4ia]

It doesn't matter; even in 1993 St. Louis U. was probably the only law school I felt confident getting into.

[Kagro X]

George Mason certainly does have a law school. And it's become the DC epicenter of the Law and Economics school of thought originally developed at everyone's favorite hotbed of neoconservatism, the University of Chicago.

Its Law and Economics Center (Judicial Advisory Board Member: Edith Jones) has quietly been running training seminars in the discipline for members of the federal bench. Judges are flown in, typically for an expenses-paid vacation to a plush resort destination, and treated to lectures from the likes of Richard Pipes, Michael Novak, George Priest, and others, all on the dime of the usual right wing foundation suspects. Not unlike a "Leadership Institute" (of Jeff Gannon fame) for federal judges. The aim, very overtly, is to integrate Law and Economics thinking into judicial decision-making -- and probably no less to make the graduates of GMUSL, presumably steeped in such thought, more desirable as clerks and as potential hires for politcally sensitive work within the Justice Department.

The faculty have already become something of a source for political appointments in the Bush administration, sending professors Timothy Muris to the Chairmanship of the Federal Trade Commission, William Kovacic to the FTC as General Counsel, and Bill Lash to the Department of Commerce as Assistant Secretary for Market Access and Compliance.

Because of its proximity to DC, it has also been able to boast a serious adjunct faculty over the years, including Douglas Ginsberg, David Sentelle, Ken Starr, Jim Gilmore, and A. Raymond Randolph.

It's something of a hothouse.

[Matt Davis]

I'd like to point out that the state sovereign immunity doctrine that has underpinned numerous decisions such as Alden v. Maine and Seminole Tribe also appears nowhere in the Constitution. It is a penumbral reading of the 11th amendment, and the assumption that "of course the Framers never thought states could be sued." Needless to say, the Federalists are quite fond of that particular penumbra.

[al-Fubar]

The first meaning I learned of "penumbra" was the zone around a full eclipse where you only see a partial eclipse, so it has an overtone of not-quiteness. "Emanations" also has a vague ring to it.

Regarding the 9th Amendment, now that I think of it, I think I've read that almost no jurisprudence has been based on it, e.g., it's rarely if ever been cited in rulings.

Perhaps it would have been better if Griswold had been grounded in the 9th Amendment in the first place, instead of leaving the impression that the right of privacy is somehow shadowy, when in fact it is basic to liberty.

-- Rick

[Kagro X]

On the off chance you haven't seen it, Armando is on the case.

[John Lopresti]

This line of looking at Roberts early work at WHC is opening nicely. It is a pity Roberts' intent consistently seems to approach all Bill of Rights matters as somehow unconstitutional, but that debate was the most fiery at the time of founding the country. We are built incorporating a few incongruities. My understanding is the majority had great affection for the participants whose background in those times were oligarchic but brave enough to join the union the constitution was framing; and a radical incentive to make the Bill of Rights explicit to shut that door finally was the final victor because almost everyone worried about denaturing of the constitution precisely along the lines of whittling away at the most fundamental rights, many of which rest, as observed above in this conversation, upon privacy. It would be fun to toss a few of the Reformation debate points into the Roberts hearings, although that would be unfair, as well, and ruled out of order. With few exceptions most of the cases I have read in which Roberts' arguments are delineated in narrative text take the same tack, neither rugged nor individualist, and certainly anticipating the eventual atrophication of the bill of rights. This is why a the most fundamental level this is a stealth candidate, in the sense that few Congress persons are likely to make much fuss in these zones of penumbra, if you will, where few votes are to be garnered at electiontime. What remains to be seen is whether the incremental destruction which is Robert's prime characteristic has remained tempered, or if there were as yet unpublished areas in which the pronounced political strain in his voice pushed the jurisprudence into less prudent zones. Strategically, I am mired in Iran-Contra, unfortunately, as of today, still seeking data from the three least public years in Roberts political interpreting, when ostensibly he was outside of the beltway 1987, 1988, 1989. I appreciate KX's diligent work above. It helps along the learning process.

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