Saturday, October 08, 2005

Harriet Miers' private views on privacy

Senator Sam Brownback, Republican of Kansas, did not look happy when he spoke to reporters after his meeting Thursday with Supreme Court nominee Harriet Miers.

He said he asked Ms. Miers' her position on the Supreme Court's 1965 Griswold v. Connecticut decision, which struck down a state law banning birth control on the grounds that it "violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights."

"She did not take a position on it, nor did she say she would take a position on it, nor did she think it appropriate to have a position on it," Brownback said.

Griswold v. Connecticut, as you probably know, formed a precedent that was cited by the U.S. Supreme Court in the 1973 Roe v. Wade decision striking down a Texas law that restricted abortion.

Prior to 1965, there was no constitutional right of privacy. Dissenting from the majority's opinion in Griswold, Justice Potter Stewart wrote, "With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court."

Justice Stewart wasn't alone in that view. Four years earlier, Justice Hugo Black had criticized a colleague's opinion in another case for relying on "some imaginary and unknown fragment designated as the 'right of privacy.'"

Senator Brownback would like a straight answer from Ms. Miers on whether she thinks the Supreme Court correctly decided the Griswold case. Presumably he would like President Bush's nominee to say, as Justice Stewart said, that the Supreme Court was wrong.

Obviously, that's not going to happen.

If Harriet Miers were to say that there is no constitutional right of privacy, the majority of Americans who favor a constitutional right of privacy would pick up the phone and crush her like a bug.

That's why Harriet Miers will answer all questions during her confirmation hearings, if she gets that far, with some lawyerly variation of "That's for me to know and you to find out."

The haughty presumption is that the American people are wrong to believe they have a right to know a judicial nominee's views on the constitutional right of privacy, or anything else.

Let's correct that misimpression right now.

The doctrine used by the Supreme Court to strike down state laws was explained in Justice Arthur Goldberg's concurring opinion in the Griswold case:

In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. "Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling." The law must be shown "necessary, and not merely rationally related, to the accomplishment of a permissible state policy."

In other words, when the Supreme Court declares a right to be a "fundamental personal liberty" (as opposed to an ordinary personal liberty) a state law cannot restrict it without a "compelling" reason.

The U.S. Supreme Court will determine whether the liberty in question is fundamental and whether the state's reason is compelling, and there is no way around the fact that this is always a subjective value judgment.

Here's how it works: The Supreme Court agrees to decide the constitutionality of a state law requiring parental notification of a teen girl seeking an abortion. The people of the state have said, through their elected representatives, that they want that law. May they have it or does it violate the U.S. Constitution?

First, the justices will have to decide if the right to privacy is one of the "fundamental" rights. What is the standard for this? There is no standard. "Some are in and some are out," Justice Felix Frankfurter complained in 1947, "but we are left in the dark as to which are in and which are out. Nor are we given the calculus for determining which go in and which stay out."

If privacy is not a "fundamental right," then the state has the power under the Constitution to enact a law restricting it, just as it has the power to enact a law restricting the speed you can drive on the highway.

If privacy is a fundamental right, we proceed to the next step. The state may restrict a fundamental right if it has a "compelling" reason to do so. A rational reason isn't good enough.

Does Harriet Miers believe the state has a compelling reason for a law requiring parental notification? She will tell us that she must hear the arguments in the specific case that comes before the Court and then decide.

What's wrong with that?

Here's what's wrong with it: the logical implication of that statement is that the constitutionality of a parental notification law changes with the facts of each and every individual's case. The Court will make a decision on the basis of just one of them, and everybody else is out of luck until the justices decide to hear another one and possibly reverse themselves.

Why have a Constitution at all? A Ouija board is just as reliable and considerably faster.

The American people have every right to be fed up with this cat-and-mouse game. There are two ways to end it.

The second-best way is for the Senate Judiciary Committee members to demand an answer when they ask nominees for their views on privacy and all the other hot-button issues that will come before the Court. Polite deference to a nominee who refuses to answer is inappropriate and unnecessary.

The better way is to amend the Constitution to secure privacy rights. If the Constitution actually said what Roe v. Wade said it says -- that there is a right to privacy in the first trimester of pregnancy and a right to life in the third -- we wouldn't have to hear about this any more. Whichever side you're on, there's some appeal to that.

Copyright 2005

Source notes:

Griswold v. Connecticut: 381 U.S. 479 (1965). Read it online at

Justice Stewart's dissent: 381 U.S. 479, at 530.

Justice Goldberg's concurring opinion : 381 U.S. 479, at 497. In the paragraph quoted above he cited Bates v. Little Rock, 361 U.S. 516, at 524 (1960), McLaughlin v. Florida, 379 U.S. 184, at 196 (1964) and Schneider v. Irvington, 308 U.S. 147, at 161 (1939).

The Justice Hugo Black quotation is from a letter from Justice Black to Justice Tom C. Clark, June 15, 1961. Tom C. Clark Papers, Tarlton Law Library, University of Texas; cited in Bernard Schwartz's 1983 book, Super Chief, pages 397-8. The justices were deciding Mapp v. Ohio, 367 U.S. 643 (1961), and were debating whether to overrule Wolf v. Colorado, 338 U.S. 25, at 27 (1949).

The Justice Felix Frankfurter quotation is from Adamson v. California, 332 U.S. 46, at 65 (1947).

Read more about constitutional amendments to secure the right of privacy in Why There is No Constitutional Right to Privacy, and How to Get One at