`Privacy' questions were quite a stretch

October 01, 2005|By GREGORY KANE

The U.S. Senate overwhelmingly confirmed John G. Roberts as the nation's chief justice Thursday. It was quite a step up for Roberts, considering some senators were grilling him like a steak at Fourth of July barbecue only a week before.

The issue for those senators - all liberals, all Democrats - was whether Roberts believed in a constitutional "right to privacy." Ensconced high in their seats on the Senate Judiciary Committee, guys like Sen. Joseph Biden, Sen. Charles Schumer and Sen. Edward Kennedy presumed to lecture Roberts about "privacy rights."

Let's be clear on what the issue is. It's not "privacy rights." What the Biden-Schumer-Kennedy clique really wanted to know was whether Roberts is going to lead a charge to overturn the 1973 Roe vs. Wade decision that struck down laws banning abortion in many states.

How many pro-choice advocates - whether they're in the Senate or out - believe that a woman has not only a "right to choose" but a right to a publicly funded abortion? I suspect many do. I don't suspect many are in a rush to acknowledge it. If they do, their entire "right to privacy" argument collapses like a house of toothpicks.

It's quite a stretch to proclaim privacy as a "right" and then ask taxpayers to foot the bill for the consequences of some very private acts. It's a pity Roberts wasn't allowed to do some grilling of his own. I have a laundry list of questions I'd have loved for him to ask senators like Biden, Schumer and Kennedy. Questions like:

Do you believe that our Founding Fathers intended the Constitution to be a document that limited and proscribed the powers of all three branches of the federal government?

If you don't, should you even be a U.S. senator, much less on the Judiciary Committee?

If you do, how can you support a series of Supreme Court decisions that have expanded the power of that body to the point where, if that power is left unchecked, it will soon be the Supreme Junta?

It's what some see as the unchecked power of the Supreme Court that led to decisions like Roe. But abortion foes have focused on the wrong decision. Roe is not and never has been the problem. The problem is and always has been the decision in Griswold v. Connecticut.

The Supreme Court heard that case in 1965. Justices voted 7-2 to strike down a Connecticut law that prohibited anyone, even married couples, from using contraceptives. The case went to the Supreme Court after two workers for Planned Parenthood were convicted of counseling married couples on how to use contraceptives.

It's the case where Justice William O. "Penumbra" Douglas first used the argument that the court could root around in the shadows of the Constitution, yank out whatever rights suited its fancy and benignly bestow them on the great unwashed citizenry. In the Griswold case, it was the "right to privacy."

There's only one problem with that. Which rights in the "penumbra" of the Constitution come out and which ones stay in? And why do nine unelected justices get to decide that for tens of millions of people?

Justices Potter Stewart and Hugo L. Black, who cast the dissenting votes, understood the problem. Stewart even called the Connecticut law "uncommonly silly," which it was. But he realized it wasn't his or the court's job to strike down every uncommonly silly state law in the land.

Black went even further.

"Use of any such broad, unbounded judicial authority would make of this Court's members a day-to-day constitutional convention," Black wrote in a stinging but right-on-target dissent. The result, Black said, would be "a great unconstitutional shift of power to the courts which ... will be bad for the courts and worse for the country."

Black's words were prophetic. Within seven years the court extended Griswold's "right of privacy" for married couples to individuals in Eisenstadt v. Baird. Justices struck down a Massachusetts law that prohibited sale of contraceptives to unmarried people. Then came the Roe decision.

The Massachusetts law struck down in Eisenstadt was every bit as "uncommonly silly" as the one in the Griswold case. But by 1972, justices were on a mission to protect us from our uncommonly silly selves.

That isn't their job.

If the people of Connecticut and Massachusetts in the mid-1960s and early 1970s didn't have the good sense to elect legislators who would repeal uncommonly silly laws, then uncommonly silly laws are just what they deserved. If the people of State A want a law legalizing abortion, they should have it. If those in State B want laws banning it, their will should prevail. A Supreme Court that strikes down either law is one that has exceeded its authority.

Let's hope our new chief justice understands that.

greg.kane@baltsun.com

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