Wednesday, March 12, 2008

On penumbras

In 1965 the Supreme Court discovered a right to privacy in the U.S. Constitution. The case, Griswold v. Connecticut, was brought by none other than our friends at Planned Parenthood (Estelle Griswold was the executive director of the Planned Parenthood League of Connecticut), disputing a state law which prohibited the sale of contraceptives.

Two Justices, Hugo Black and Potter Stewart, filed dissents. Justice Black argued that the right to privacy is to be found nowhere in the Constitution. Furthermore, he criticized the interpretations of the Ninth and Fourteenth Amendments to which his fellow Justices adhered. Justice Stewart famously called the Connecticut statute "an uncommonly silly law", but argued that it was nevertheless constitutional.

Fast foward to 1973.

Roe v. Wade was decided (ironically, again 7-2, but with several new justices -- including Rehnquist -- on the bench) on the premise that a woman's right to abort her unborn child was a private decision between her and her doctor. The abortion decision appealed again to the 8 year old Constitutional right to privacy, claiming that Justice Douglas' infamous (and crystal clear) line in Griswold, "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance" applied not only to the sale of contraceptives but, golly gee, to the killing of unborn human beings as well!

This modern craze of legislating from the bench necessarily follows when one has adopted the belief that the Constitution is a "living" document. That it must be adapted to the times, and that unelected judges are the ones best fit to do the adapting.

By way of contrast, listen to the thoughts of James Madison:

James Madison wrote on March 12, 1833:

"It is but too common to read the expressions of a remote period thro' the modern meaning of them, & to omit guards agst misconstruction not anticipated. A few words with a prophetic gift, might have prevented much error in the glosses on those proceedings. The remark is equally applicable to the Constitution itself."

This was nothing new for Madison. Here's a similar quote from June 25, 1824:

"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!"

And March 10, 1826:

"In the exposition of laws, and even of Constitutions, how many important errors, may be produced by mere innovations in the use of words and phrases if not controllable by a recurrence to the original, and authentic meaning attached to them."

Surely the Founding Fathers meant to include a right to privacy in the Constitution ('twas a memory lapse is all).

And just as surely they thought abortion fit the bill.


[Hat Tip:]

1 comment:

A Catholic's Perspective said...

This is a great and clearly written post. I love you site. I agree that judges legislate fare too often.