I don’t know about this Alito guy, but probably nothing RWB says at this point is going to get in his way. OK: I haven’t been able to pay constant attention to the hearings so far, but I did catch moments yesterday where he indicated: (1) He believes in “a right of privacy” in the U.S. Constitution and (2) he’s unwilling to say that the United States is in a state of war with foreign terrorists. And there were various other little moments where he seemed to be backing off anything vaguely assertive he’d ever said in the distant past of a conservative nature, and ploughing a firmly centrist course. By the end of the day, when Senator John Cornyn was comparing Alito’s record on many issues to Sandra Day O’Connor, in the spirit of “See, you liberals? You should love him: he’s just like O’Connor,” I was the one being convinced.

Now, it’s understood the kinds of hurdles that Alito needs to clear in order to get on the court, especially with Arlen Specter as the chairman of the Judiciary Committee. Still, in Alito, I didn’t think we were getting a stealth candidate. I thought he was a known quantity and one of the good guys.

Well, my power is great, but, as I’ve conceded, at this late stage the thing is probably out of my hands. The right to privacy question reminded me, however, of Robert Bork’s 1990 book The Tempting of America, where he frames these kinds of issues in an easy-to-understand and highly persuasive manner. There’s little question but that his confirmation hearings (in 1987) illustrated where the U.S. had found itself, suffering from an acute case of “the political seduction of the law.” And things have not exactly improved in the interim. It remains to be seen whether a Justice Alito will contribute to an improvement.

Bork has a passage in that book headed “The Right of Privacy: The Construction of a Constitutional Time Bomb.”

The 1965 decision in Griswold v. Connecticut was insignificant in itself but momentous for the future of constitutional law. Connecticut had an ancient statute making it criminal to use contraceptives. The state also had a general accessory statute allowing the punishment of any person who aided another in committing an offense. On its face, the statute criminalizing the use of contraceptives made no distinction between married couples and others. But the statute also had never been enforced against anyone who used contraceptives, married or not.

This was one of those “morality” laws, where no one had any interest in enforcement, but where there was insufficient political courage on the part of legislators to lead a movement to strike it from the books. In order to challenge the law in the courts, some Yale law professors apparently had to go to some lengths before finally succeeding in getting two doctors fined $100 each as “accessories,” for giving birth control information. The solution to the problem of this law was clearly that it should be repealed, through the legislative process. However, there were larger things at stake, as the litigants were clearly aware. Skip forward to the U.S. Supreme Court, and Bork’s analysis of the final judgment.

Justice Douglas’s majority opinion dealt with the case as if Connecticut had devoted itself to sexual fascism. “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contracepives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” That was both true and entirely irrelevant to the case before the Court. Courts usually judge statutes by the way in which they are actually enforced, not by imagining horrible events that have never happened, never will happen, and could be stopped by courts if they ever seemed about to happen. … “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system.” The thought was incoherent. What the right of privacy’s age in comparison with any of our political parties and school system had to do with anything was unclear, and where the “right” came from if not from the Bill of Rights it is impossible to understand. No court had ever invalidated a statute on the basis of the right Douglas described. That makes it all the more perplexing that Douglas in fact purported to derive the right of privacy not from pre-existing right or law of nature, but from the Bill of Rights. It is important to understand Justice Douglas’s argument both because the method, though without merit, constantly recurs in constitutional adjudication and because the “right of privacy” has become a loose canon in the law. Douglas began by pointing out that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that give them life and substance.” There is nothing exceptional about that thought, other than the language of penumbras and emanations. Courts often give protection to a constitutional freedom by creating a buffer zone, by prohibiting a government from doing something not in itself forbidden but likely to lead to an invasion of a right specified in the Constitution. Douglas cited NAACP v Alabama, in which the Supreme Court held that the state could not force the disclosure of the organization’s membership lists since that would have a deterrent effect upon the members’ first amendment rights of political and legal action. That may well have been part of the purpose of the statue. But for this anticipated effect upon guaranteed freedoms, there would be no constitutional objection to the required disclosure of membership. The right not to disclose had no life of its own independent of the rights specified in the first amendment.

Douglas named the buffer zone or “penumbra” of the first amendment a protection of “privacy,” although, in NAACP v Alabama, of-course, confidentiality of membership was required not for the sake of individual privacy but to protect the public activities of politics and litigation. Douglas then asserted that other amendments create “zones of privacy.” These were the first, third (soldiers not to be quartered in private homes), fourth (ban on unreasonable searches and seizures), and fifth (freedom from self-incrimination). There was no particularly good reason to use the word “privacy” for the freedoms cited, except for the fact that the opinion was building towards those “sacred precincts of marital bedrooms.” The phrase “areas of freedom” would have been more accurate since the provisions cited protect both private and public behavior.

None of the amendments cited, and none of their buffer or penumbral zones, covered the case before the court. The Connecticut statute was not invalid under any provision of the Bill of Rights, no matter how extended. Since the statue in question did not threaten any guaranteed freedom, it did not fall within any “emanation.” Griswold v. Connecticut, was, therefore, not like NAACP v. Alabama. Justice Douglas bypassed that seemingly insuperable difficulty by simply asserting the various separate “zones of privacy” created by each separate provision of the Bill of Rights somehow created a general but wholly undefined “right to privacy” that is independent of and lies outside any right or “zone of privacy” to be found in the Constitution.
…
The Court majority said there was now a right of privacy but did not even intimate an answer to the question, “Privacy to do what?” People often take addictive drugs in private, some men physically abuse their wives and children in private, executives conspire to fix prices in private, Mafiosi confer with their button men in private. If these sound bizarre, one professor at a prominent law school has suggested that the right of privacy may create a right to engage in prostitution. Moreover, as we shall see, the Court has extended the right of privacy to activities that can in no sense be said to be done in private.[RWB's emphasis] The truth is that “privacy” will turn out to protect those activities that enough Justices to form a majority think ought to be protected and not activities with which they have little sympathy.
…
Justice Black’s dissent stated: “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” He found none. “The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not.” He pointed out that there are “certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities.” But there was no general right of the sort Douglas had created. Justice Stewart’s dissent referred to the statute as “an uncommonly silly law” but noted that its asininity was not before the Court. He could “find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.” He also observed that the “Court does not say how far the new constitutional right of privacy announced today extends.” That was twenty-four years ago, and the Court still has not told us.

And that was sixteen years ago. Yesterday, from Judge Alito:

“I do agree that the Constitution protects a right to privacy and it protects a right to privacy in a number of ways,” Alito said when asked about the court’s 1965 ruling that a Connecticut law outlawing contraception violated the privacy of married couples. That ruling was a basis for the Roe decision.

Now, you can read that as merely a recognition of the limited and specific privacy rights as referred to in Bork’s passage, or you can read it as something else. Alito may merely be counting on Specter and the Democrats reading it as that “something else.” That’s Rush Limbaugh’s opinion and who am I to argue? He admires how Roberts and now Alito have handled the question, having learned from seeing how Bork’s straight-up answer (that there simply is no general right to privacy in the constitution) was used to, well, bork him.

Still, I’m hardly the only one out there who thinks these arguments need to be had, and these arguments need to be won. It would have been nice to see some combativeness and some confidence in Alito yesterday, facing the likes of Leahy and Kennedy.

The quotes from Bork’s book are long, but I think just long enough to fairly convey his point about this crucial “right of privacy,” and hopefully he won’t sue me. There’s plenty more where that came from and by all means read it all.

...................
Share this!

Posts which might be related to this one based on a mysterious algorithm:

• The Tempting of America
• Day Two
• The Pennsylvania Line’s in an Awful Mess …