Sunday, September 11, 2005

Roberts and privacy

I'm behind, as always (see schedule below), so I just ran across Dave Budge's comments on John Roberts and privacy. Budge takes a routine quote from Justice Ginsberg, brands it "nonsense" and says its logic would lead to constitutional protection for incest and bestiality, among other crimes.

It's amazing how wrong a blogger can be in just a few short sentences. Ginsberg's remarks, unless Budge has taken them wildly out of context, do not in any way seek to protect criminal activity. She seems to be making a point that I have occasionally made: While the Constitution contains no explicit right to privacy, certain privacy rights appear to be inherent in the document, such as the right not to quarter troops in your house, to demand a search warrant or not to incriminate yourself. Those protections don't say it's OK to commit crimes; they merely limit the government's ability to poke around in your personal life to find out if you are committing any crimes. Nothing in the Ginsberg quote indicates that she would disagree with Blackmun's statement that privacy rights are less than absolute.

Roberts may be correct, at least in constitutional terms, to refer to a "so-called" right to privacy. But that term of art in no way diminishes the importance of fundamental constitutional protections aimed at keeping government's nose out of our business. Roberts' attitude toward privacy clearly is a legitimate public interest and ought to be explored in hearings.

Without some federal recognition of privacy rights, then the government might imagine it could come along and confiscate your children's urine. No, wait. It already thinks it can do that.

30 comments:

Dave Budge said...

It's amazing how quickly it is for one to dismiss the obvious conversation here. Your assumption that there is a right to privacy is summarily incorrect. Take Lawrence v. Texas for example. The facts in this case were that the local police entered a private residence with justifiable probable cause and found secondarily that two men were "breaking the law" by having homosexual relations. Given that the "search" was legal the implications of privacy were moot as to the 4th Amendment. However, the court used the precedent of Roe to imply that such behavior, although statutorily illegal, was protected through privacy rights that are a contrived implication of the constitution by judicial fiat. So the court has now implied that certain behavior is private while other behavior is not. It's inconsisant hence all the political heartburn.

That said, let me go on the record in saying that I wish we did have a real constitutional right to privacy. I would endorse, however repugnant they may be, a right to engage in some of the practices I mentioned in my post. But I'll stick to my guns, there is no absolute right to privacy - no matter how much I would like one.

David said...

Dave, You seem to be missing my point. I don't argue that there is an absolute right to privacy. And I see nothing in the quote from Ginsberg to indicate that she argues that either.

Dave Budge said...

David,

I would suggest that it is you who missed my point. First, the Gingberg quote was used by Armando at Kos to justify grilling Roberts on the right to privacy. I was disputing his assertions in only a constitutional context. But progressive activists asserting that Roberts' comments about a "so-called" right to privacy make him potentially unfit by asserting an absolute right via Ginsberg's remarks is either disengenuous or ignorant.

Secondly, as I stated, Ginsberg does in fact contradict Blackmun if "I were to take Ginsberg to the extreme of her logic." I did not contend that Ginsberg has done this (although it would have been interesting if it were her, rather than Stevens, who wrote the majority opinion in Lawrence) but she implies in her quote an unfettered right to make decisions as to "one’s life’s course" and does not draw a line, as did Blackmun, on issues of health, public interest etc. She may in fact have some notion of a "perceived line" as to what is private v non-private behavior, but I have yet to find any proof of that beyond her concurrence in Raich v Gonzales - which contradicts her position in the referenced quote through, as Justice Blackmun said in Roe, the "penumbra" of Constitutional interpretation - the commerce clause not withstanding.

I think we largely agree on the greater issue that understanding Roberts' on the 4th, 5th, 9th, and 14th Amendments is necessary. The issues in stare decises of the 14th Amendment, however, makes this line of "privacy" malleable, inconsistent, and difficult since a new morality is determined by fiat rather than legislative democratic consensus. Burkeians have a problem with that. So do I.

David said...

Now I'm not sure that we really disagree at all.

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