by Charles M. Evans, PhD
With
the nomination of Judge John Roberts to replace Justice O’Connor,
much of the commentary has centered upon the possible fate of the
right of women to terminate a pregnancy as described in Roe v. Wade
and Casey v. Planned Parenthood. The more concerning threat,
however, is not to Roe itself but to the underlying constitutional
right upon which the Blackmun decision in Roe rested: the right of
personal privacy.
Justices Rehnquist, Scalia and Thomas, as well as a number of conservative lawyers, jurists, and academics, deny that there is a constitutional right to personal privacy. They point out that the word “privacy” is not found in the Constitution, and that therefore no such right was intended by the original framers of the Constitution, the Bill of Rights, or subsequent amendments to the document. These conservatives, often called “originalists” believe that the Constitution must be interpreted using only the explicit language of the Constitution as understood at the time of ratification. Rehnquist, Scalia and Thomas have stated in a number dissenting opinions that the Court erred in finding a right to personal privacy, and that decisions such as Roe v. Wade and Johnson v. Texas (striking down state laws criminalizing homosexual sodomy), were wrongly decided and should be overruled.
However, a review of Anglo-Saxon legal history in Britain and America demonstrates that the right to personal privacy is embedded as the foundation of most of the personal rights explicitly guaranteed in landmark English and American documents from the Magna Charta to the US Constitution of 1789 and its Amendments. Even though the word “privacy” does not appear in the Constitution, it underlies the legal and natural rights assumptions upon which Madison and other founders framed the Constitution and the Bill of Rights.
President Bush has publicly declared that he wishes to see the Supreme Court vacancies filled with nominees who share the judicial philosophy of Scalia and Thomas. Presumably, he has selected such a person in Judge Roberts. We must conclude, therefore, that Judge Roberts shares their anti-privacy beliefs. If he is confirmed, the Court will move closer to a bias against any reproductive right that is founded upon a constitutionally protected right of personal privacy. This includes not only the right to abortion, but the right to use contraceptives (even in marriage), the right to no-fault divorce, the right to in vitro or other medically assisted conception, the right to decide upon the fate of any embryos that may be created through medically assisted efforts to conceive, the right to cohabit outside of wedlock, the right to engage in same gender intimate relationships, and other personal rights that we have come to consider settled. Alarmingly, it is not just the loss of these rights in the abstract that could concern us, but the realization that these and other behaviors could once again be criminalized, and violators subject to fines, incarceration, or both. Such persons in theory could also be stigmatized as sex offenders and subject to all of the disabilities of that classification.
With the announcement of Justice O’Connor’s retirement, much of the media attention and public speculation has to do with the fate of Roe v. Wade, the 1973 decision which recognized the right of a woman to choose to terminate a pregnancy in the first trimester without governmental interference. Although most polls show that a substantial majority of Americans favor the right of women to choose to terminate a pregnancy under some circumstances,
there is a dedicated minority determined to see the O’Connor seat and that of any other Justice who might die or retire in the next three years, be replaced with Justices who would overturn Roe. Now that Judge John Roberts has been identified as the President’s nominee for the O’Connor vacancy, it is important to understand what his presence on the Supreme Court will mean to the fundamental foundations of our most important civil liberties.
The controversy over the appointment of one or more Supreme Court Justices by President George W. Bush has largely centered on the fate of Roe and the right to abortion. However, scant attention has been paid to the legal foundation of the Roe v. Wade ruling. In order to understand how much more is at stake than the right to choose an abortion, it is essential to see how the Court arrived at Roe by building on a much wider and more important fundamental right under the Constitution.
Nowhere in the Constitution can one find an explicit reference to a right to privacy. However, for nearly a thousand years of Anglo-Saxon common law, the right of privacy has been recognized. Even the King of England was stopped at the door of the most humble cottage in his realm and could not enter unless invited in by the master of the house. Similarly, what passes between a man and wife is privileged under the law on the ground of the intimate and private nature of their relationship. Almost exactly one hundred years before the adoption of the Bill of Rights in America, the 1688 English Bill of Rights required as a condition of their ascending the throne, that King William and Queen Mary preserve the rights enumerated in the document, as well as those “undoubted rights and liberties” of freemen of the realm. This essentially reiterated the demands of the 1628 Petition of Right for the recognition of ancient laws and free customs of the kingdom. These two documents defended the common law rights of Englishmen which had grown up since the reign of King Henry II in the twelfth century. These rights held a person’s home as safe against the intrusions of the king, against the imposition of quartering the king’s soldiers in one’s home, against testifying against himself or his spouse, and numerous privacy rights recognized by the decisions of the king’s judges as the common law developed.
Most of these rights were enveloped in a phrase of art, “due process.”
“Due process” as used in the ancient documents of Anglo-Saxon jurisprudence meant that persons had a certain set of procedural rights that the government must observe, such as indictment by a jury of one’s peers before prosecution for a crime, being informed of charges brought against one, and being protected from incarceration for long periods before being brought before a bar of justice to hear the case against one and to offer a defense. In addition to these procedural protections, “due process” also developed as a term of art that included the common law rights of Englishmen, such as the right to be secure in one’s home from governmental intrusion: security of one’s private conversations with a spouse or confessor, protection against perjured or secret witnesses; against forced confessions; and other examples cited in the case law of the kingdom. At the bottom of these protections was the assumption that a person has rights against the government, foremost among which is the right to protect himself and his home from unwarranted molestation by others, including the government. All of these and more were intended to be covered by the phrase, “due process.”
The traditional rights of Englishmen were established in the principles of the common law and recognized in such documents as the Magna Charta (1215) in which the phrase “due process” appears as a right which Englishmen expected to be respected by King John and his servants, the Petition of Right (1628), the Habeas Corpus Act (1679) and the English Bill of Rights (1688). These documents and the rights they claimed for Englishmen were of primary concern to the educated inhabitants of the thirteen newly independent American states as they considered the adoption of the Constitution of 1789. As a condition of ratification, several states insisted upon the inclusion of a Bill of Rights in the proposed American Constitution. James Madison’s list of rights to be included as amendments drew heavily upon the older English documents, particularly the English Bill of Rights. The colonists were aware of the meaning that “due process” had acquired over the centuries of English legal development, and were insistent that the protections of due process be recognized in the Bill of Rights. In the Fifth Amendment, James Madison included the simple, but very weighty, language that brought with it so many unenumerated ancient common law rights: “No person shall...be deprived of life, liberty, or property, without due process of law.”
Significantly, the American Bill of Rights also included a very broadly worded statement reserving rights to the people which were not explicitly mentioned in the Bill of Rights. The Ninth Amendment, in the understanding of those who proposed it and those who voted to ratify it, incorporated all of those written and unwritten rights of Englishmen that were too numerous to list, but were too important to omit from protection against the government. The language of the Ninth Amendment could hardly be more inclusive in its intended protection: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, one does not have to be able to point to a specific passage in the Constitution with explicit language spelling out a right in order for it to exist and to be protected against government intrusion. Unfortunately, the US Supreme Court has relied very little upon the language of the Ninth Amendment to incorporate a list of specific rights under the Constitution. It remains potentially a powerful tool for extension of civil liberties, just as the Supreme Court has begun to make the previously unnoticed Tenth Amendment a potent source for expanded powers of the States.
Following the War Between the States when the victorious Union government wished to secure the full political rights of the newly freed slave population, the Fourteenth Amendment (1868) was adopted to ensure that the States, as well as the national government, must respect a list of rights drawn from the common law, such as the protection against criminal prosecution of a capital or infamous crime without a presentment or indictment by a Grand Jury, protection against being subject to trial twice for the same crime, against being compelled to offer testimony against oneself in a criminal case, and against having one’s private property taken for public use without just compensation. These few important common law rights were specifically secured in the text of the Amendment. However, to bring under the protection of the Fourteenth Amendment all of those other ancient rights which were protected against government by Anglo Saxon legal tradition, the framers of the Fourteenth included explicit language to provide that “No person shall...be deprived of life, liberty, or property, without due process of law....” Those who used this language in the Fourteenth Amendment understood very well its meaning and intended protections against unnamed potential abuses of government. Due process was understood to have the same meaning and content in the Fourteenth Amendment as it had in the Fifth Amendment.
It was in the light of this long history of English and American legal tradition that Justice Brandeis in 1928 declared that privacy is “the right to be left alone–the most comprehensive of the rights and the most valued by civilized men.” In his mind at least, privacy was perhaps the most obvious of the unstated rights protected by the Ninth Amendment.
Unfortunately, before 1965 the right to privacy was not as apparent to the national government and many states as it was to Justice Brandeis. Several states, including Connecticut, made it a criminal offense to teach the use of contraceptives, to provide to anyone contraceptive devices or information on their use, or even for married people to use contraceptive devices. That year, Estelle Griswold, the director of a Planned Parenthood clinic and the physician who served as the clinic’s medical director. were charged under the Connecticut criminal statute. It was in the case of Griswold v. Connecticut that the Supreme Court recognized an explicit right of privacy under the Constitution. Even though the word “privacy” is not to be found in the Constitution, Justice William O. Douglas wrote a majority opinion that demonstrated that privacy is a concept woven into the deepest assumptions of the Constitution. Justice Douglas found a right to privacy in “penumbras,” or shadows, cast by several of the provisions of the Bill of Rights. He pointed to elements of the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments which together created a fundamental right to privacy protecting people from the unwarranted intrusions of government into their homes and private lives. It is significant that Griswold v. Connecticut recognized privacy as a fundamental right because under other decisions of the Supreme Court, fundamental rights are protected by a very high standard known as “strict scrutiny.” Under the strict scrutiny standard, the Supreme Court will invalidate any statute or action by government (local, state or national) unless the government can prove that the law or action is the only means by which it can serve a compelling legitimate governmental interest. That is a very high criterion which carries with it a presumption against the constitutionality of any law or governmental action that restricts a fundamental right, and requires that the government bear the burden of proof. Under strict scrutiny, the vast majority of laws or governmental actions affecting fundamental rights are held to be unconstitutional by the courts.
It is in the context of all the preceding discussion that the Supreme Court approached the case of Roe v. Wade in 1973. The argument was won on the issue of a fundamental right to privacy. The Court held that the government had no compelling interest in regulating the private decision of a woman to terminate her pregnancy in the first trimester. The Court held that the government’s compelling interest is in the health of the mother, not in an unviable fetus. Abortion, therefore, became a private matter between a woman and her doctor, and anyone else whom she invited to be involved in her decision.
More than it would appear from reading the popular press, the judicial argument about abortion revolves around whether there is a fundamental constitutional right of privacy. The judicial squabble over privacy appears rather often in the opinions published by members of the Court. Justices Scalia, Thomas and Chief Justice Rehnquist are on record as opposed to recognition of any constitutional right to privacy, much less a fundamental one. They have stated in formal dissents that in the absence of an explicit reference to privacy in the text of the Constitution, such a right does not exist. They believe that the Ninth Amendment has no content, and is merely a cipher. They seem to disregard nine hundred years of Anglo Saxon legal custom and tradition of civil liberty. Justice Scalia is particularly aggressive in pushing the view that there is no constitutional right of privacy. Thomas usually tags along with Scalia. Alarmingly, these two are the Justices that President Bush holds up as examples of the sort of judges he wants to appoint to all levels of the federal judiciary. This means, of course, that he wants to appoint persons who would ignore the Ninth Amendment and who have no sympathy for the traditional rights which Anglo Saxon jurisprudence has been developing since before the year AD 1215.
Similarly, Scalia, Thomas, and Rehnquist have consistently voted to limit the protections afforded by the plain language of the Fourth Amendment. In their view, the Fourth Amendment guarantee that “the right of the people to be secure in their persons, houses, papers and effects” does not apply to our private lives. Our bedrooms and doctors’ offices are not, in the view of these three members of the Court, sanctuaries of privacy for our persons. They do not adhere to Justice Brandeis’s understanding of privacy as the most comprehensive right of all: the right to be left alone.
Judge Roberts, presumably, has been selected by President Bush because of his agreement with Scalia, Thomas and Rehnquist on privacy as well as other issues. The President declared in announcing the nomination of Judge Roberts that he would “not legislate” from the bench, but merely interpret the Constitution and the laws as they are written. The Justices named above, along with Judge Roberts, claim that only the explicit language of the Constitution and laws may be legitimately considered in rendering a judicial decision. This position is disingenuous at best, given the history of the development of the concept of due process, and the history (as well as the language) of the Ninth Amendment. To ignore the history and context of the language of the Constitution is to misinterpret or dismiss the clear meaning and intention of those who wrote and ratified the US Constitution. Ironically, these “strict constructionists” or “originalists” are ignoring exactly what they pretend to be preserving: the original intent of the framers. Ironic, yes, but also very dangerous for our historically protected civil liberties and fatal to the expansion of civil liberties in the future..
With the help of Justice O’Connor the Justices hostile to privacy have managed to seriously erode that right by removing its classification as fundamental. That was the effect of Casey v. Planned Parenthood (1992), in which state restrictions on abortion were permitted so long as they protected the health of pregnant women and did not place an “undue burden” upon a woman’s ability to secure an abortion in the first trimester. While O’Connor claimed that her majority opinion in the Casey decision upheld the “essential core” of Roe v. Wade, the effect was to overrule that portion of Griswold v. Connecticut that found privacy to be a fundamental constitutional right. Certainly the “undue burden”standard is a far weaker protection than strict scrutiny. Most significantly, under O’Connor’s “undue burden” test, the burden of proof is shifted from the government to the plaintiff.
he disagreement over privacy is not limited to the fight over abortion. It also extends broadly into other areas of reproductive freedom. If the Court obtains a majority who hold the same view of privacy rights as Scalia, Thomas and Rehnquist, then government at all levels (except for those states which have an explicit right to privacy in their constitutions) will be in a position legally to regulate the intimate, private relations of people’s lives. This raises profound reservations in the minds of many concerning the appointment of Judge Roberts to the Court. His limited writings, and his extensive partisan connections with the most reactionary elements of the Republican party, provide legitimate reasons to resist his confirmation. A person of his obvious erudition and intelligence cannot pretend not to understand the intimate relationship between a fundamental right to privacy and the security of our most basic civil liberties.
The conservative movement would have us believe that preventing abortion and protecting “unborn life” is their primary aim. However, a loss of a privacy right under the Constitution would also open the door to criminalizing of abortion; to outlawing all forms of contraception both within and outside of marriage; for restricting the sexual behavior of unmarried persons; for the re-criminalization of adultery; the return to laws forbidding divorce except in cases of adultery, impotence, or abandonment; and similar governmental regulation of family and sexual relationships. Without a right of privacy, it would be possible for government to make it difficult or impossible for persons seeking to become pregnant through artificial or laboratory-assisted means to make personal decisions about what might be done with leftover sperm, ova, and blastocysts Without a right to privacy, legal protections for persons in same-gender relationships would be in serious peril. Doubtless it would be likely that Johnson v. Texas, which invalidated state sodomy laws, would be a casualty of a Supreme Court that does not recognize a privacy right.
Lest there be any doubt about the intentions of those who wish to exclude privacy from the list of guaranteed constitutional rights, consider the remarks of Matt Daniels, a spokesperson for The Alliance for Marriage. Mr. Daniels is quoted by The Nation magazine (July 18/25, 2005, p. 26) as saying that the Alliance has a “broader agenda” than merely trying to “see that more kids are raised in a home with a married mother and father.” The agenda, according to Bryce Christensen of Southern Utah University, again quoted by The Nation, includes governmental regulation of “lifetime fidelity in marriage...cohabitation and casual divorce, and deliberate childlessness.” The more extreme elements of the conservative movement would use the loss of a privacy right to outlaw not only abortion, but contraception, in vitro fertilization, cohabitation, homosexual relationships, divorce, and even childlessness. How much more intrusive can one imagine government being? If it were not such a serious threat to our civil liberties, the extreme right’s willingness to intrude into our intimate lives would be an amusing irony considering their adamant hostility to governmental regulation of economic matters. They are comfortable with government regulating the bedroom, but not the boardroom.
Although it is beyond the scope of this discussion, it is worth noting that the present Administration, as well as some courts, appear less ambivalent about the application of privacy considerations in areas outside of reproduction and intimate family or sexual relationships and the erosion of privacy rights. For instance, all branches of the government are concerned with the protection of property interests threatened by identity theft of personal information. Congress, the executive, and the courts are eager to protect people from theft of private personal financial information, and good for them. The President and Vice-President are very concerned about executive privilege and their ability to keep information confidential that they consider private to their decision making process. The Administration and the courts do not seem as interested in protecting the privacy of reporters who use confidential sources. Consider the distortion of the Fourth Amendment search and seizure protections by the Patriot Act. Of course, these examples involve other complex considerations of the First and Fourth Amendments as well as the prerogatives of the Executive as outlined in Article II of the Constitution which are not appropriate for extended treatment here.
Reproductive freedom is a thread which, if pulled, could unravel our right to privacy and with it a whole array of constitutional protections we have thought of as forever secure. Those who believe that it would be acceptable for the Supreme Court to have a majority willing to overrule Roe v. Wade should look carefully at the logical consequences of such a decision. To lose Roe would be a denial of privacy as a constitutionally protected right. Without a right to privacy we would no longer have the right to be left alone by the government. The King would no longer be stopped at the door to any humble cottage. Hundreds of years of Anglo Saxon history and jurisprudence would be swept away. Our government would become a burdensome tyranny.
July, 2005
ORANJESTAD, Aruba - Felix rapidly strengthened into a dangerous Category 5 hurricane and churned through the Caribbean Sea on a path toward Central America, where forecasters said it could make landfall as “potentially catastrophic” storm.
Felix was packing winds of up to 165 mph as it headed west, according to the U.S. National Hurricane Center. It was projected to skirt Honduras’ coastline on Tuesday before slamming into Belize on Wednesday.
“As it stands, we’re still thinking that it will be a potentially catastrophic system in the early portions of this week, Tuesday evening, possibly affecting Honduras and then toward the coast of Belize,” said Dave Roberts, a hurricane specialist at the center in Miami.
Posted by: Dypeexessop | September 04, 2007 at 07:26 PM
right on!
Posted by: astrid | July 26, 2005 at 06:48 PM