Rich Lowry

When the Senate confirmation hearings for Judge John Roberts begin in a few weeks, his Democratic questioners are sure to obsess on something that doesn't exist: a generalized right to privacy. It was this non-right that was the focus of the successful attack on the nomination of Judge Robert Bork, when he was impolite enough to note that such a right appears nowhere in the U.S. Constitution. This prompted Democrats to warn that Bork wanted the sex police to patrol America's bedrooms.

The right to privacy is a natural point of attack for Democrats since it is at the root of the Supreme Court's lawlessness that has allowed the justices to anoint themselves as our moral betters and strike down any legislation they find distasteful or retrograde. Without it, liberals might have to fight against laws they oppose — e.g., prohibitions on gay marriage — at the ballot box rather than hope they get struck down by agreeable judges.

In a draft article for Attorney General William French Smith in 1981, Roberts wrote: "All of us may heartily endorse a 'right to privacy.' That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label 'fundamental,' and then resort to it as, in the words of one of Justice [Hugo] Black's dissents, a 'loose, flexible, uncontrolled standard for holding laws unconstitutional.'" Just so.

There are privacy rights in the Constitution. The Fourth Amendment, for example, prohibits unreasonable searches and seizures. The entire constitutional scheme is meant to limit government power and leave people alone most of the time. But there is not a generalized, abstract right to privacy unhinged from any constitutional text.

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.

Rich Lowry

Rich Lowry is author of Legacy: Paying the Price for the Clinton Years .
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