How Privacy Went Public

For anyone interested in learning something about how the U.S. Supreme Court misstepped in finding the right to privacy which somehow springs out of the United States Constitution (leading to the quagmire of today's precedents), you must read How Privacy Went Public by James Taranto of the Wall Street Journal. I taught Constitutional Law for 10 years, and from my point of view, Mr. Taranto's position is valid. Here is a portion of the article:

Last week a state judge held that New York City's refusal to issue marriage licenses to same-sex couples violates the constitutional right to privacy. When the Massachusetts Supreme Judicial Court mandated the recognition of same-sex marriage in 2003, it too cited the right to privacy. Whatever the merits of gay marriage, this is a case of judicial activism run amok, for the contemporary right to privacy has its roots precisely in the traditional definition of marriage.

"Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?" Justice William O. Douglas asked rhetorically in the 1965 U.S. Supreme Court case of Griswold v. Connecticut. Then he answered: "The very idea is repulsive to the notions of privacy surrounding the marriage relationship."

But the court did not long confine those "notions of privacy" to "the marriage relationship." In less than a decade it expanded the right of marital privacy into a right of reproductive privacy. In Eisenstadt v. Baird (1972) the court held that unmarried couples have the same right as married ones to obtain and use contraceptives, and the following year, in Roe v. Wade, the justices declared that the right to privacy includes abortion.

Mr. Taranto is right. The original "right to privacy" case -- Griswold v. Connecticut -- is very confused. Griswold purports to arise out of the rights of the marriage relationship and Justice Douglas, the decision's author, says the right to privacy is older than the bill of rights itself. Yet Justice Douglas also hops, skips and jumps throughout the Bill of Rights trying to find support for the right of privacy. Then, after seating the case on the rights accompanying marriage in Griswold, Eisenstadt v. Baird comes along and says something like: well, if we are going to grant this right to married people, we have to give this right to unmarried people as well or it violates the Equal Protection Clause. This, of course, is nonsensical if one considers that the right itself, as initially determined, arose out of the marriage relationship.

I recommend Mr. Taranto's brief article to everyone.



What a great article ... Taranto pounded it over the fence. He succinctly frames the problem of judicial activism.

I cringe everytime I read "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." from Planned Parenthood v. Casey. Instant Alka Seltzer moment.

Learning the word "penumbra" was worth the trip over to read the article. What a rich word. Never encountered it before.

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