Home
In this issue
April 21, 2014

Andrew Silow-Carroll: Passoverkill? Suggestions to make next year's seders even more culturally sensitive

Sara Israelsen Hartley: Seeking the Divine: An ancient connection in a new context

Christine M. Flowers: Priest's execution in Syria should be call to action

Courtnie Erickson: How to help kids accept the poor decisions of others

Lizette Borreli: A Glass Of Milk A Day Keeps Knee Arthritis At Bay

Lizette Borreli: 5 Health Conditions Your Breath Knows Before You Do

The Kosher Gourmet by Betty Rosbottom Coconut Walnut Bars' golden brown morsels are a beautifully balanced delectable delight

April 18, 2014

Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology

Caroline B. Glick: The disappearance of US will

Megan Wallgren: 10 things I've learned from my teenagers

Lizette Borreli: Green Tea Boosts Brain Power, May Help Treat Dementia

John Ericson: Trying hard to be 'positive' but never succeeding? Blame Your Brain

The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious

April 14, 2014

Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time

Greg Crosby: Passing Over Religion

Eric Schulzke: First degree: How America really recovered from a murder epidemic

Georgia Lee: When love is not enough: Teaching your kids about the realities of adult relationships

Cameron Huddleston: Freebies for Your Lawn and Garden

Gordon Pape: How you can tell if your financial adviser is setting you up for potential ruin

Dana Dovey: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate

Justin Caba: Eating Watermelon Can Help Control High Blood Pressure

The Kosher Gourmet by Joshua E. London and Lou Marmon Don't dare pass over these Pesach picks for Manischewitz!

April 11, 2014

Rabbi Hillel Goldberg: Silence is much more than golden

Caroline B. Glick: Forgetting freedom at Passover

Susan Swann: How to value a child for who he is, not just what he does

Cameron Huddleston: 7 Financial Tasks You Should Tackle Right Now

Sandra Block and Lisa Gerstner: How to Profit From Your Passion

Susan Scutti: A Simple Blood Test Might Soon Diagnose Cancer

Chris Weller: Have A Slow Metabolism? Let Science Speed It Up For You

The Kosher Gourmet by Diane Rossen Worthington Whitefish Terrine: A French take on gefilte fish

April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review Nov. 10, 2005 / 8 Mar-Cheshvan, 5766

Privacy by decree

By Jeff Jacoby

Jeff Jacoby
Printer Friendly Version
Email this article

http://www.JewishWorldReview.com | Nowhere does the Constitution guarantee the right to privacy. The word ''privacy" isn't even mentioned in the text. But if all you had to go by was the obsessive interest in the subject whenever there is a Supreme Court vacancy, you might imagine that privacy is the very bedrock of American constitutional law.

Few legal cows today are more sacred. A judicial nominee who referred dismissively to the ''so-called right to privacy" or insisted that courts should not ''discern such an abstraction in the Constitution" would stand no chance of winning confirmation. That is why John Roberts, who wrote those words as a Reagan administration lawyer in 1981, smoothly disavowed them during his confirmation hearings in September. It is why Samuel Alito's nomination to the court was no sooner announced than his most important Senate ally — the Judiciary Committee's chairman, Arlen Specter — called a press conference to say the nominee had assured him that ''there is a right to privacy in the Constitution" and that Griswold v. Connecticut was ''good law."

Griswold was the 1965 case in which Justice William O. Douglas, writing for a 7-2 majority, discovered ''zones of privacy" lurking in the ''penumbras, formed by emanations" from the Bill of Rights. On the strength of that gaseous finding, the court struck down a Connecticut law banning the sale and use of contraceptives. The ''privacy surrounding the marriage relationship," Douglas wrote, was one of those ''penumbral rights" that lawmakers had no power to infringe.

In 1972 the court decided that this newly minted right to contraception wasn't connected to marriage after all. ''Whatever the rights of the individual to access contraceptives may be," Justice William Brennan wrote in Eisenstadt v. Baird, a Massachusetts case, ''the rights must be the same for the unmarried and the married alike."

A year later, Roe v. Wade expanded the ''right of personal privacy" to encompass abortion. In a 17,000-word opinion, Justice Harry Blackmun surveyed the history of abortion from the ancient Persians to modern times, detouring along the way to hold forth on the Hippocratic Oath, English common law, and the views of the American Medical Association.

But when the flood of rhetoric subsided and he finally got around to constitutional law, Blackmun had nothing more to offer on than the airy penumbra privacy that Griswold had unveiled eight years earlier. Even some liberal supporters of abortion rights were appalled by the decision's flaccid reasoning. In a withering critique, the legal scholar John Hart Ely wrote in the Yale Law Review that Roe ''is not constitutional law and gives almost no sense of an obligation to try to be."

Yet Roe lives on, and so does the right to privacy, which is now said to be located not only in those emanating penumbras but in the 14th Amendment's guarantee of liberty as well. In 1992, Justice Anthony Kennedy cobbled the two together, upholding Roe in a decision that rhapsodized about how the Constitution protects ''the most intimate and personal choices a person may make" and how ''at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." In Lawrence v. Texas 11 years later, Kennedy invoked that language in striking down a Texas law that made homosexual sodomy illegal.

Soon after, in a decision citing Lawrence and the Supreme Court's pronouncements on privacy, the highest court in Massachusetts ruled that same-sex marriage must be permitted as a matter of state law.

From contraceptives to same-sex marriage is a distance that no one 40 years ago could have imagined the courts would travel. The thread connecting them is Griswold's judicially concocted ''right to privacy" — amorphous, free-floating, and wonderfully handy for writing judges' personal opinions into constitutional law.

''I think this is an uncommonly silly law," wrote Justice Potter Stewart, one of the two dissenters in Griswold of Connecticut's ban on contraception. But it is not the job of judges ''to say whether we think this law is unwise, or even asinine." A statute can be foolish and unfair without being unconstitutional.

The other dissenter was Hugo Black, a champion of freedom who saw what was coming. He, too, found Connecticut's contraception ban absurd. But it is not the court's role to be ''a day-to-day constitutional convention," he warned, and adopting a standard as loose as the ''right to privacy" would set in motion ''a great unconstitutional shift of power to the courts which . . . will be bad for the courts, and worse for the country."

He was right. Griswold was wrongly decided, and its effects still poison American law and politics. But no Supreme Court nominee is prepared to say so. The last one who tried was Robert Bork.

Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

Jeff Jacoby is a Boston Globe columnist. Comment by clicking here.

Jeff Jacoby Archives

© 2005, Boston Globe

Columnists

Toons

Lifestyles