Wednesday, May 18, 2005

How to Cook a Lobster

How do you cook a lobster? You place the live lobster in a pot of cold water because it recognizes cold water and won’t try to climb out of the pot. Then you slowly, incrementally, turn up the heat. The lobster blithely boils to death because over time it never noticed the threat building up around it. In the Federalist #1 Alexander Hamilton, one of the writers and signers of the Constitution, warned that “...a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding appearance of zeal for the firmness and efficiency of government.”

Many of the rights that are considered fundamental in the United States today were not granted through the Constitution at all, but rather have been intuited, in effect, created out of thin air. Because our society does not teach it’s own history (specifically civics and the Constitution), we’ve done exactly what the Founders feared the country would do - we have given away our liberty. Americans have traded true liberty for the mere appearance of liberty. Few would argue that the most cherished of American liberties is the Right to Privacy. Maybe you know this, maybe you don’t, but the ‘Right to Privacy’ was not included in the Constitution in 1787, nor was it provided for in the Bill of Rights, nor was it added with an Amendment. What we recognize as the Right to Privacy was created a mere 40 years ago. In fact, there is no “Right to Privacy” and if you spend the slightest amount of time considering it, it becomes clear why.

In 1965, the Supreme Court heard Griswold v. Connecticut, a case concerning the state prohibition on the sale of contraceptives. The case was a put-up job by Planned Parenthood, wherein Executive Director Griswold of Planned Parenthood of Ct orchestrated a scenario to get herself arrested and convicted for violating the Connecticut law. It was she who brought the suit, not the married couple the contraceptives were provided to. Thus all the endearing concern for the sanctity and privacy of marriage was a smokescreen for Justice Douglas’ personal opinions. Finding that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees,” Justice Douglas created a “Right to Privacy.” In dissent, Justice Black observed Douglas’ fast-and-loose word games and concluded: “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.”

This wasn’t the first attempt, four years earlier, Planned Parenthood tried to win this argument. In Poe v. Ullman (1961) Planned Parenthood sued on behalf of a selection of people who might be harmed by Connecticut’s contraceptive prohibition. As there was no actual legal dispute to litigate the case was dismissed. However, Justice Harlan, taking the opportunity of the case, wrote a dissent which included a reference to an implied protection from an “unjustifiable invasion of privacy.” Such language is not within the Constitution, but it did provide Justice Douglas a starting point for his “penumbras” and “emanations.”

Poe and Griswold then become the foundation for yet another contraceptive case: Eisenstadt v Baird (1972). Justice Brennan relied primarily on the Equal Protection clause of the 14th Amendment but also referenced the Griswold decision in deciding this case. Again engaging the smokescreen of the sanctity of marriage, Brennan focused on “the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Curious language: “to bear or beget a child.” Poe, Griswold, and Eisenstadt all involved contraceptives, the means to avoid pregnancy, so why did Brennan include “to bear” when the case was only about ‘begetting?’ Incrementalism.

By 1973 Roe v. Wade had already come before the court twice and with this new right in their pocket the liberal majority on the bench was ready to move forward. Texas law held abortion a crime unless provided “by medical advice for the purpose of saving the life of the mother.” ‘Roe’ just plain didn’t want to have a child and it’s only a baby step from the right to decide “to beget a child” to the right to decide “to bear a child.” Despite pages of semantic hand-wringing on the part of Justice Blackmun, including the stunning admission that “the Constitution does not explicitly mention any right of privacy,” the document created to defend “life, liberty, and the pursuit of happiness” was replaced by the personal feelings of a handful of unelected judges. As Bob Woodward describes in The Brethren “[Justice] Powell came quickly to the conclusion that the Constitution did not provide meaningful guidance. The right to privacy was tenuous; at best it was implied. If there was no way to find an answer in the Constitution, Power felt he would just have to vote his ‘gut’...” Like vaudeville magicians, the Justices, with nothing up their sleeves, were able to pull “a woman’s right to choose” out of the hat.

In 1986, Justice Blackmun again wanted to expand the right to privacy, this time to include homosexual sodomy. He failed and Bowers v. Hardwick became a powerful precedent for judicial restraint. In dissent, Justice Stevens wrote: “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” Writing for the majority, Justice White noted that “the court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no recognizable roots in the language or design of the would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home.”

Such a short memory! Only ten years later in 1996 the court heard Romer v. Evans. At issue was a Colorado referendum preventing “sexual orientation” from being equated with race and religion in civil rights laws, which was passed by a 53% majority of the people. The court ignored it’s own precedent and decided the referendum was unconstitutional. Writing in dissent, Justice Scalia pointed out that “cultural debate” is specifically the purview of the people “to be resolved by democratic means.” Scalia went on to note that in 1986 Bowers upheld a state’s right to criminalize homosexual conduct and therefore it must be constitutional for a state to prohibit “bestowing special protections upon homosexual conduct.” In 2000, “Cultural debate” and “democratic means” were trumped again when Stenberg v. Carhart struck down a law passed by the elected officials in Nebraska which banned partial-birth abortions. Justice Breyer found that “the law lacks any exception ‘for the preservation of of the mother.’ [and] ‘imposes undue burden on a woman’s ability’ to choose.”

Lawrence v. Texas was (June 2003) was a homosexual sodomy case very similar to the 1986 Bowers case. In deciding it, Justice Kennedy simply ignored the past and the law. Kennedy decided that “liberty protects the person from unwarranted government intrusions into a dwelling or other private places.” But he didn’t stop there, Kennedy found that liberty “presumes autonomy of self that includes freedom of thought, belief, expression, and certain intimate contact.” Justice Scalia provided rational legal dissent and prophetic vision when he observed that “if, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, [no law against fornication, bigamy, adultery, adult incest, bestiality, and obscenity] can survive.”

So it was that a bare five months later the Supreme Judicial Court of Massachusetts turned American culture on it’s head and found that “barred access to the protections, benefits, and obligations of a civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community’s most rewarding and cherished institutions.” Ignoring the Massachusetts Constitution, the Constitution of the United States, and the tradition of this country, this court turned instead to the Court of Appeal for Ontario, Canada for precedent and remedy.

Do we have a right to privacy? Well, no, not really. The husband who beats his wife does so in the privacy of his own home. Incest usually occurs within the privacy of the bedroom. Illicit drug use almost invariably occurs within “a zone of privacy.” Yet, no responsible person argues that such behavior is protected by some inviolable right to privacy. Laws are created by people to insure the good behavior, comity, and peace of society. “We the people” reserved the right and power to institute those laws by electing representatives who we would hold accountable to our will. When judges cease to rely on the Constitution and decide case law on their personal feelings, they cease to be judges and become legislators supplanting their will for the will of “we the people.” Activist judges subvert the very Constitution they swore to uphold and by which they derive their authority. That is the height of hypocrisy and the beginning of judicial tyranny.


Post a Comment

<< Home