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The Constitutional Wrecking Ball: It all started with Griswold

Senator Rick Santorum

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This is the second in a series of five excerpts from It Takes a Family, by Sen. Rick Santorum. Together they comprise chapter 23, "The Rule of Judges." (The first part is here.)

How did this all start? Several "strands" of major Supreme Court decisions, bound together, have dismantled older constitutional understandings and enshrined the new morality. On the questions of marriage, family, and sex, that string begins with the 1965 Griswold decision. In that case, a Connecticut law that outlawed the use of contraceptives, even by married couples, was ruled unconstitutional. Now, before you jump to conclusions, let me clearly state that this law was badly written, and I would not have supported it or its intent. Nonetheless, it is in this case that the Court "discovered" a "right to privacy" in the U.S. Constitution. Of course, such a right does not appear anywhere in the text of the Constitution. Rather, the Court's majority discovered -- or invented -- such a right from the "emanations" and "penumbras" of rights found in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

Justices Stewart and Black were scathing in dissent, observing that while both disagreed with the law personally (as do I), they could find nothing in the U.S. Constitution that prevented the Connecticut legislature from making such a law (which had been on the books in the state since 1879). The dissenting justices mocked the reasoning of the majority, which in some cases based itself not on the Constitution's text, but rather on the "traditions and [collective] conscience of our people." How, asked the dissenters, could the Court know the conscience of the people better than legislators? Did not such reliance lead only to the substitution of judges' "personal and private notions" for the decisions of legislatures? "Use of any such broad, unbounded judicial authority would make of this Court's members a day-to-day constitutional convention," warned Justice Black. And so it has been! Finally, Justice Black observed that "privacy" is a "broad, abstract and ambiguous concept," lacking the specificity of a genuinely constitutional rule. However traditional it may appear in the guise of marital privacy, which as a legislator I support, this novel right was bound to do harm in our jurisprudence.

Read the entire article on the National Review Online website (new window will open).

Posted: 20-Jul-05



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