Opening Argument – Problems With ‘Privacy,’ And What To Do About Roe
by Stuart Taylor, Jr.
"Under our constitutional system, courts stand against any winds that blow, as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement." So wrote Justice Hugo Black, a liberal hero, in 1940, in one of the most eloquent defenses of forceful judicial protection of constitutional rights ever penned. But a Hugo Black could not be confirmed today — not if his views were known. He would be voted down by Democrats, and some Republicans, for the sin of rejecting the nebulous "right of privacy" that has become holy writ and, for some, codespeak for abortion rights and gay rights. "The Court talks about a constitutional ‘right of privacy,’ " Black wrote in dissent from the 1965 decision in Griswold v. Connecticut, "as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not…. 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." In Griswold, the Court held by 7-2 that a Connecticut law barring contraceptive use even by married couples violated an ill-defined "right of privacy" that Justice William Douglas derived from "penumbras, formed by emanations from" various provisions of the Bill of Rights.