There Is No Right to Privacy in the Constitution

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In other words, Santorum is right and his hardcore libertarian opponents are wrong.

Rick Santorum has stated that he believes that there is no right to privacy in the Constitution.  Therefore, Supreme Court decisions such as Griswold v. Connecticut (striking down Connecticut’s anti-contraception statutes) and Lawrence v. Texas (striking down Texas’s anti-homosexual sodomy laws) were wrong.

Mitt Romney artfully dodged this question at a recent debate, so Santorum’s coming under fire for stating what should be taken as a given among so-called conservative constitutionalists.  As indicated in prior posts, Santorum does not suggest that he would personally favor such laws; in fact he has expressly stated that he would not vote for laws that banned contraception or sodomy.

Santorum’s main fault, evidently, is that he is expressing an originalist understanding of the constitution.  Both of the decisions referenced above were gross miscarriages of constitutional justice.  No matter what you think of the laws in questions, Supreme Court Justices are supposed to decide cases based on the constitution, not their personal policy preferences.   In both cases, the majority opinion was based on policy, though justified with a thin veneer of constitutional justification.

In the case of Griswold, Justice William O. Douglas wrote the famous majority opinion in which he stated that though there is no right to privacy expressly stated in the constitution, it is found in “penumbras” and “emanations” found in other constitutional rights.  Justice Kennedy wrote the majority opinion in Lawrence, relying heavily on the concept of substantive due process, a legal concept that has enabled the Court to completely trample on states’ rights.  In other words, the Court struck down state laws that ran afoul of no direct constitutional prohibition.  The writers of these majority decisions had to contort the plain meaning of the document in order to justify a decision they had already reached without reference to the constitutional text.

Both of these cases sparked notable dissenting opinions.  Potter Stewart in Griswold and Clarence Thomas in Lawrence said much the same thing: the law under consideration is uncommonly silly, and if i were a legislator in this particular state I would vote against such a law.  But my job as a jurist is to determine whether the law is constitutional or not, and neither Stewart or Thomas considered the law in either case to run afoul of the constitution.  The sentiment expressed by both Stewart and Thomas should inform any intellectually honest jurist.

Justice Arthur Goldberg offered a concurring opinion in Griswold that some conservatives have found to be more compelling, citing the Ninth Amendment as justification for striking down the Connecticut statute.  The problem with this rationale is that the ninth amendment ought to be read in conjunction with the tenth.  The Bill of Rights in general were meant to be restrictions placed upon the federal government.  The ninth and tenth amendments exists because the framers of the Bill of Rights fretted that the Bill of Rights would be read to imply that only the rights contained therein were protected.  in fact many of the opponents of the Bill of Rights opposed creating such a list precisely because they believed that a specific enumeration of rights would imply that rights not listed were not protected. So the ninth amendment assures us that the first eight amendments are not an exhaustive list of protections.  But again, this has to be read in light of the purpose of restricting the power of the federal government.  It is not a broad grant of individual rights, but an assurance that the federal government could not augment its reach beyond certain delineated fields. If anything, the ninth amendment should be used as a cudgel against the Court and the federal government in general in their attempts to restrict states rights.

Therefore I find it odd that those who claim to be averse to a centralized, big brother government are content with said government being able to strike down state laws for no other than the laws in question are of questionable value.  It suggests to me that those who cry “Nanny Statist!” with regards to Rick Santorum ought to look in the mirror.

More to explorer

Keeping a Promise

As faithful readers of this blog know, I was a very reluctant, and late, supporter of Donald Trump in 2016.  I grudgingly


  1. Hear, hear!

    No area of ConLaw is more messed up than those dealing with human sexuality. Whatever else can be said of the Church’s teaching, at least it is cohesive.

    Scalia ripped the “reasoning” in Lawrence precisely because Kennedy sought to dodge the logical extensions of the Court’s meddling. The Court isn’t alone of course in its refusal to drive logic out to its conclusion. We see the same lack of insight or honest acceptance of responsibility for consequences in Obamacare’s creation of an enforcable right to contraceptive drugs.

  2. Griswold is part of the school of constitutional jurisprudence known as “making it up as we go along”. The idea that the Constitution prevents a state from banning contraceptives, or French envelopes as the Founding Fathers would have referred to the only contraceptives they were aware of, would have struck them as a poor attempt at an off color joke.

  3. I also enjoy reading Justice Black’s dissent in Griswold. A good excerpt:

    My Brother GOLDBERG has adopted the recent discovery that the Ninth Amendment as well as the Due Process Clause can be used by this Court as authority to strike down all state legislation which this Court thinks violates “fundamental principles of liberty and justice,” or is contrary to the “traditions and [collective] conscience of our people.” He also states, without proof satisfactory to me, that, in making decisions on this basis, judges will not consider “their personal and private notions.” One may ask how they can avoid considering them. Our Court certainly has no machinery with which to take a Gallup Poll. And the scientific miracles of this age have not yet produced a gadget which the Court can use to determine what traditions are rooted in the “[collective] conscience of our people.” Moreover, one would certainly have to look far beyond the language of the Ninth Amendment to find that the Framers vested in this Court any such awesome veto powers over lawmaking, either by the States or by the Congress. Nor does anything in the history of the Amendment offer any support for such a shocking doctrine. The whole history of the adoption of the Constitution and Bill of Rights points the other way, and the very material quoted by my Brother GOLDBERG shows that the Ninth Amendment was intended to protect against the idea that, “by enumerating particular exceptions to the grant of power” to the Federal Government, “those rights which were not singled out were intended to be assigned into the hands of the General Government [the United States], and were consequently insecure.” That Amendment was passed not to broaden the powers of this Court or any other department of “the General Government,” but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication. If any broad, unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the “[collective] conscience of our people” is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court. This fact is perhaps responsible for the peculiar phenomenon that, for a period of a century and a half, no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. Use of any such broad, unbounded judicial authority would make of this Court’s members a day-to-day constitutional convention.

  4. Thanks Jonathan. That really gets to the heart of the matter. It’s kind of sad that most of the great opinions written in Supreme Court history were dissents.

    BTW, I went and edited the post some. Perhaps for Lent I’ll strive to give up making egregious typos.

  5. Welcome, Paul!

    Glad to put my conlaw teaching moments to work for a good cause.

    Also, I am thoroughly enjoying seeing the various photos which you, I, and Donald use as our “avatars”.

  6. Paul,

    If you were involved with the Catholic groups at all, then we probably ran in some of the same circles of people.

  7. I graduated from Duke Law in 1983 and was taught Con Law by the truly great Wm. Van Alstyne. While very much a pro choice liberal, he expressed disdain for Roe and discomfort with Griswold. Back then there were more honest liberals. Jonathan an Paul, I suspect you would have aced his course — not easy to do. He was (and still is) a masterful and entertaining teacher. He would have made a terrific Supreme Court Justice, but alas he was known by Republicans as a liberal Dem and by Dems as a honest constitutional scholar. Not a chance.

  8. Mike,

    Thank you for the compliment, though my own constitutional law score unfortunately belies any deeper analytic ability in the region.

    It seems to me that at lease some among an older generation, perhaps those with memories of the wars, was at least vaguely (if not acutely) aware of the problems of government exceeding constitutionally defined limits. They also seemed able to separate approval of outcome from reasoning used to get there, and (as Justice Black seemed to say) refused to engaged in “good feeling” as a justification.


  9. I did not study law at all in college, so my legal acumen is somewhere between my ability to speak Chinese (non-existant) and my ability to play basketball (laughable.)

    So, to the learned members of the impropmtu panel here assembled, I would pose the following question, which has bothered me for some time:

    Is it at all noticable that an overmuch amount of the secular/humanist/progressive/leftist effort at diluting Constitutional substance is in the areas having to do with sex and/or marriage? Between the current administration’s HHS “mandate,” Roe v Wade, the cases mentioned above in the OP and an assortment of other notable instances, sex seems to be the favorite weapon swung by the Godless fascists.

    The reasons I note this are A) it’s also the main topic of much of the Gospels, Paul’s letters and Scriptural treatises on righteous behavior – singled out for reasons well-known but too many and deep to go into here, and B) because it seems to escape the grasps of much of the high-level legal community.

    Those who attack our republican system of civic self-government with limited Federal oversight use sex as the main assault vehicle in undermining the very origin of rights as informed by the Constitution; granted by God. They attack faith in God by appealing to fleshly desires; by saying “it’s OK, times have changed, be free!” they render obedience to God moot, and then God Himself becomes little more than an archaic cartoon charcter. With that degeneration, the philosophical ability to withstand the humanist/totalitarian onslaught becomes at best arguable and at worst meaningless.

    It’s deliberate, generational and caustic. I just wonder why there’s never been any broad-brushed recognition of this avenue of attack. But, then again, I’m not a lawyer.

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