I. Trashing Democracy:

The Judiciary and Infanticide

Chapter 1: The Road to Stenberg

In Chapter 1

  1. The Court, the Constitution, and Privacy
  2. Judges as Contraception Referees
  3. Copulation Without Consequences
  4. Democracy means Nothing; Sexual Freedom is What Counts!
  5. Our Philosopher-Kings: Abortion is Reproductive Freedom
  6. Judges as Dictators: Disenfranchising and Dehumanizing
  7. The Court's Compassion: No Difference between a Zygote and a Baby
  8. Sexual Liberty means Everything; Life Itself means Nothing
  9. Fools and Cowards on the Bench: The Casey Decision

§A   The Court, The Constitution, and Privacy

How did the Supreme Court of the United States come to grant its official protection to the brutal and barbaric act that is partial-birth abortion? How did it end up making an act, which is for all practical purposes indistinguishable from infanticide, into a constitutional right? To answer these questions, I must address an issue that has haunted American jurisprudence, and American politics, since 1965: the "right to privacy."

The federal courts currently base their abortion jurisprudence on the Federal Constitution's guarantee of privacy. There is, however, an immense flaw in this line of judicial reasoning: No such guarantee exists in the Constitution of the United States! Indeed, the word "privacy" does not appear in the Constitution at all, not even once.

The reason that no "right to privacy" is granted by the Constitution should be obvious upon reflection: the term "privacy" is far too general and vague to be used in a precise legal manner. "Privacy" will always mean different things to different people. The U.S. Constitution does contain some definite rights that deal with some aspect of personal privacy, such as the right to "free exercise of religion," and the freedom from "unreasonable searches and seizures." But these are narrow and focused limitations on the government's power that are actually a part of the Constitution's text.

§B   Judges as Contraception Referees

So how did the idea of a general right to privacy come about in the first place? During the 1960's, the State of Connecticut had a law forbidding the use of contraceptives. A couple of Connecticut residents ran afoul of this law: Estelle Griswold, who was the executive director of the Planned Parenthood League of Connecticut, and C. Lee Buxton, the League's medical director. They were charged with assisting others to commit an offense against the law because they had given information and medical advice on preventing pregnancy to married couples. They were tried and found guilty; they were each fined $100. They sued Connecticut over their convictions and the case made its way to the Supreme Court of the United States. Instead of making a first amendment claim, they argued that the anti-contraception law was unconstitutional to begin with because it interfered with the conjugal relationship between a husband and wife.

When the Supreme Court issued its ruling in June 1965, the justices on the Court could find no right to use contraceptive measures in the Constitution. But since the members of the Court did not like Connecticut's ban on contraception, they decided to overrule it anyway. They ruled that the rights conferred by marriage must include the right to use contraceptives. How did they justify this assertion? They stated that since marriage pre-dated the Constitution, the right of married couples to conduct their sex lives as they please must be presumed by the Bill of Rights. Writing for the seven-member majority, Justice William O. Douglas stated, "We deal with a right of privacy older than the Bill of Rights." This argument is actually very strange. Any true human right must pre-exist any law that protects it. This has never been thought to negate the need for written laws.

Even if we can properly assume that the Bill of Rights protects the sexual relationship of a husband and wife, surely this does not mean that there are to be no limits on a couple's sexual activities. For instance, marriage would presumably not include the right to engage in sexual intercourse in public. And surely "marital privacy" would not allow a husband to rape his wife. So how did the Court know that contraceptive use is meant to be a protected part of marital sexuality? The majority opinion said that (and this, too, is an actual quote) there were "penumbras formed by emanations" from actually enumerated constitutional rights that suggested that contraception should be constitutionally protected. (A "penumbra" is the partial or imperfect shadow surrounding the complete shadow of an opaque body.) And Presto! A new, never before even imagined constitutional right was born: The right to "marital privacy."

The Court's line of reasoning in this case is analogous to a judge ruling that bb-guns and water pistols are illegal because of "a penumbra formed by emanations" from the specific prohibitions found in weapons laws. Or like a court ruling that anti-depression medicines are illegal because of connotations in the mass of laws that forbid the use of certain mind-altering substances.

What really happened in Griswold v. Connecticut was seven members of the Supreme Court making themselves into America's official arbitrators on contraception policy. No view on contraception that was disagreeable to these judges was allowed to appear in any law. Because of this decision, any citizen who disagrees with the Supreme Court's views on contraception is now denied the opportunity to see his State adopt his views in its laws; anyone who has agreed with the Court's views on contraception will find it meaningless to change his mind.

The United States is supposed to be a republic, where laws are made only by those elected to make laws. 'But never mind that,' said the Court, 'We, the Judges, shall be America's contraception referees! To hell with what the people think about birth control!' Justice Potter Stewart made this all very clear in his dissent:

"What provision of the Constitution, then does make this state law invalid? The Court says it is a right of privacy "created by several constitutional guarantees." 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."

Alexander Hamilton was well aware of the danger in combining judicial and legilative authority. In Federalist Paper No. 78, he wrote "there is no liberty, if the power of judging be not separated from the legislative and executive powers." Shouldn't our judges be just as aware of this danger as Mr. Hamilton was?

You can read all of the Federalist Papers at Federalist Papers Online.

The Federalist Papers may also be found at The Avalon Project at the Yale Law School.

See the Chapter 1 Table of Contents.

The Stop the Tyrants Project [page 3]: Chapter 1, Sections A-B
URL: http://www.stop-the-tyrants.com/chap1/index.html
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