[Leica] The Right To Privacy

[Marc James Small <msmall@infionline.net>]

At 06:06 PM 11/17/03 -0800, Eric Welch wrote:
>What is applingly lacking is a willingness for people on both sides of 
>this issue to understand:
>
>1) There is no right to privacy in the Consittution

Eric

Thanks for a worthy and interesting post.  I am not necessarily disagreeing
with your interpretation of the Constitution, but the "penumbral" right to
privacy has been recognized by the United States Supreme Court since
GRISWOLD v CONNECTICUT, which led to the refusal of certiorari in LOVISI v
SLAYTON in 1968, ROE v WADE, and off of the cases leading up to the recent
Texas sodomy case.  

The issue is whether the "due process" clauses of the Constitution --
guaranteeing US citizens that they cannot be denied of life, liberty, or
property "without due process of law".  This can mean either just the first
or both of the following:

a)	These clauses simply ensure that a citizen can insist on "notice and a
hearing" before he is so deprived ("procedural" due process")  or

b)	These clauses go farther and ensure that a citizen can insist on some
concept of the rights historically afforded to a citizen of this Great
Republic or the United Kingdom from which it sprang ("substantive due
process")

The issue is immensely complex but, to put it simply, procedural due
process has had a pretty consistent recognition since the foundation of the
US and guarantees today that a property owner can insist on legal process
before his land is condemned by the state, while a student at a publicly
funded university can insist on the same before being booted out.
Substantive due process had a lively existence during the later 1800's but
came under attack after the LOCHNER decision of the early 1900's outlawing
minimum wage laws as violative of the freedom of contract clause guaranteed
under the Constitution.  While I personally find the decision dead on
target and really sound law, this decision led to a huge outcry from the
legal academics, then, as now, hanging by their fingernails off the chasm
of the left.  The result was that substantive due process fell into
disfavour for sixty years, though it came back to life with GRISWOLD in
1965.  GRISWOLD was a case which arose over whether or not Connecticut
could outlaw the sale of contraceptives to unmarried women, and the Court
came down by resuurecting substantive due process to invalidate this Nutmeg
State legislation.  (I am of two minds on this case, though I do love
Potter Stewart's dissent, which begins, "[T]his is an uncommonly silly law.
 However it is the right of the State of Connecticut to adopt uncommonly
silly laws.")  Personally, I tend to regard the LOVISI and Texas cases as
being clearly proper, and GRISWOLD and ROE as having been decided on shaky
legal grounds for political reasons -- in the end, the Courts which handed
down these decisions were guilty of the very "Lochnerizing" they had
previously condemned.

So, yes, in the eyes of the Federal Government, there now IS a right to
privacy, and Federal courts act all the time to protect this right.  

However, I was using the term in its broader meaning, Eric -- would a
family desire privacy for a funeral of a young member killed unexpectedly?
And the answer to that, of course, is yes in almost all cases.

Marc

msmall@infionline.net  FAX:  +540/343-7315
Cha robh bąs fir gun ghrąs fir!


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