Do You Have a Right to Privacy?

 Do You Have a Right to Privacy?  Most Americans would say, Hell yes!  But wait.

William Falk of The Week asked that question in his December 24th editorial and it piqued my interest.  Surprisingly, the US Constitution is mute on the subject.  It wasn’t until I was well into my college years and beyond before the U.S. Supreme Court weighed in with the Griswold, Loving, and Lawrence rulings of 1965, 1967, and 2003 respectively.  Prior to those decisions, individual states could imprison you for using contraception, marrying someone of another race, or engaging in sodomy in your own bedroom.

Warren Court

It was in the 1965 Griswold decision that Justice William O. Douglas wrote that the Bill of Rights created a “zone of privacy” upon which the government could not intrude.  That concept became the foundation for Roe v. Wade in 1973, and five Republican appointees were in the 7-2 majority.  Douglas used the term “penumbra” when describing his implied zone of privacy.  In astronomy, a penumbra is the outer lighted shadow area seen during an eclipse.  Hence it is a partially shaded area.  In its legal form, it is an implied right or implied power guaranteed by the constitution but not specifically referenced therein.

While limited government and “don’t tread on me” have historically been Republican talking points, recent appointees to the SCOTUS are now claiming to be “Constitutional Originalists.”  The term “originalism” references a school of thought where the intended meaning of the original writers of the constitution should be more exacting.  It would discard any more modern interpretations.  To many, it is nothing more than a “dog whistle” for a strict conservative rule.

Dred Scott

Originalism is not new as it goes back to the 1857 Dred Scott case.  Originalists then would hold that citizenship was never intended to be applied to enslaved or even free Black Americans.  Fast forward to the 21st century and we have a rebranded constitutional originalism being used to justify all manner of government power over things like voting rights, abortion rights, and personal freedoms.  For conservatives, it is a means to an end and a justification for them to reinterpret established precedent.

It was the Warren court of 1953-1969, wherein civil rights and civil liberties were expanded as interpretations of implied rights guaranteed by the constitution.  Originalism is seen as a backlash to counter those advancements and recent Trump appointees are using it to justify limiting those advancements.  The notion that SCOTUS appointees would in any way remain neutral to conservative/liberal politics in their findings went out the window long ago.  Trump gained the support of the religious right with his promise to allow the ultra-conservative Federalist Society to approve all SCOTUS appointees.  Trump managed to appoint more federal judges per year in office than any of his predecessors.

Under the originalist thinking of newly appointed judges, privacy rights become a matter for popular opinion at the state level.  If it isn’t guaranteed specifically in the constitution, it’s up for grabs.  If you happen to live in a state with a strong conservative religious contingent, your personal right to privacy could be in jeopardy.  Some of these groups hold that “the pill,” IUDs, and other forms of contraception are “abortifacients” and should be outlawed.  Many don’t believe in same-sex or interracial marriage.

For those conservatives who still believe in limited government but feel it necessary to promote an originalist interpretation of the constitution, how are you going to feel when some powerful group gains popularity within a state and attacks a right that they believe isn’t specifically spelled out in the constitution?  You do remember that semi-automatic weapons aren’t mentioned in the constitution?  Under strict originalist thinking, the right to bear arms could have meant that only bears can own guns.  Or perhaps it was a typo, and they were just approving tank-tops.  I guess that technically it couldn't be a typo.  What would they call it?  Perhaps a quill-pen-o.