Out of Nothing at All

Rich Lowry
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Posted: Aug 10, 2005 12:00 AM

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.

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."

"'Privacy' [has] functioned as a euphemism for immunity from those public-morals laws deemed by the justices to reflect benighted moral views," write scholars Robert P. George and David L. Tubbs. From a right for married couples to obtain contraceptives, it has evolved into a constitutional right of homosexuals to engage in sodomy (in the case of Lawrence v. Texas in 2003) and then the right of gays to marry, in a 2003 Massachusetts-supreme-court decision.

The Court has created rights from nothing before. As George and Tubbs point out, from 1890 to 1937, it struck down social-welfare legislation because it supposedly violated a right to "liberty of contract" that had no constitutional basis. It reversed course in 1937 and admitted it had been imposing its own policy preferences. The Supreme Court won't return to its proper, limited role in American governance until it does the same with the mythical "right to privacy."