Monday, August 29, 2005

Griswold - "penumbras formed by emanations"

Rich Lowry in National Review Onlineon the cornerstone of the Left's jurisprudence:

The mischief began 40 years ago in the case Griswold v. Connecticut, when the Court struck down a prohibition on contraceptives on the basis of a "right to marital privacy." The bit about "marital" was quickly dropped, and the new discovery became a general right to privacy.

In Griswold, the Court suggested the right might be found in the First, Third, Fourth, Fifth and/or Ninth Amendments. In other words, it must be there somewhere, anywhere. But since the right to privacy is nowhere mentioned, the Court had to contend that it resides in "penumbras formed by emanations." In layman's terms, that means in partial shadows formed by emissions, which it doesn't take a constitutional scholar to conclude sounds pretty vaporous.

If Connecticut's contraceptive law was outdated and purposeless, the answer was simple: for voters to overturn it. Both the dissenters in the case, Justices Hugo Black and Potter Stewart noted that they opposed the Connecticut policy, but that didn't make it unconstitutional.

Roe v. Wade relied on the same amorphous right to privacy and featured the same tenuous or nonexistent constitutional reasoning. In his decision, Justice Harry Blackmun cited the American Medical Association, the American Public Health Association, the American Bar Association and - but, of course - the "Ephesian, Soranos, often described as the greatest of the ancient gynecologists."
Griswold was also the subject of "The Bad Decision that Started it All" by Robert P. George and David L. Tubbs in the July 18th edition of National Review. In that article (reprinted here on the Catholic Educators Resource site, the authors track the line of cases leading from the constitutional right of "marital privacy" found in Griswold, through the constitutional right to abortions found in Roe v. Wade to the constitutional right to same sex marriage found in Goodridge v. Department of Public Health in Massachusetts.

The authors argue that whether or not you believe abortions should be regulated, Griswold was bad law and a shaky foundation on which to build your case. Regarding this, the authors cite the dissenting opinions:

In fact, two widely respected and sensible jurists, Justices Hugo Black and Potter Stewart, dissented in Griswold. Black was a noted liberal and, like Stewart, recorded his opposition to Connecticut's policy as a political matter. Yet both jurists insisted that the policy was a valid exercise of the state's power to promote public health, safety, and morals.

To Justices Black and Stewart, the "right to privacy" cloaked a naked policy preference. Justices in the majority were, without constitutional warrant, substituting their own judgments for those of the elected representatives in Connecticut. This, according to jurists across the political spectrum, is precisely what had brought shame on the Court during the "Lochner era", from roughly 1890 to 1937, when in the name of an unwritten "liberty of contract" the justices invalidated state social-welfare and worker-protection laws.
The article is invaluable in dispelling other myths about the decsion as well.

Overturning Roe v. Wade will not make abortion illegal. Instead, since the Constitution is silent on the matter, it will put the decision back under the purview of state legislatures where it should be.