Why we are who we are

Writing for the majority is a US Supreme Court case called Griswold vs. Connecticut, Justice William O. Douglas argued that one could infer a right to privacy by looking at “zones of privacy” protected by First, Third, Fourth, Fifth, and Ninth Amendments of the Constitution:

Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Consequently, Justice Douglas argued that the constitution included “penumbral rights of privacy and repose.” Justice Douglas also remarked that without “peripheral rights,” the “specific rights” enumerated in the constitution would be “less secure” but others have insisted that only the ordinary meaning of the legal text should be used to interpret the law.

Justice Antonin Scalia, a renowned textualist, has written:

The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated – a compatibility that, by a benign fiction, we assume Congress always has in mind. I would not permit any of the historical and legislative material discussed by the Court, or all of it combined, to lead me to a result different from the one that these factors suggest.

That textualist theory allows no consideration is given to non-textual sources, such as: intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law. This is the radical approach embraced by leading political conservatives, but it assumes that laws were written by people who understood complex technological advances and other changes that occur over time.

As those who go beyond the textualist approach often say, the law is a living thing that evolves with society it matures and experiences change. The interpretation of the law must not be conducted as if in a vacuum.

These points are important because they influence our freedom, the responsibilities of our government and the way we live so it is important to elect people who share these values and the aspiration that we can do better. America has advanced, from a colonial wilderness to the most technologically advanced, richest and most powerful country in the world.

The right to privacy identified in Griswold ultimately served as a doctrinal stepping-stone to Roe v. Wade, where the United States Supreme Court ruled that the right to privacy protects the right to terminate a pregnancy.  Griswold itself struck down a law Connecticut used to outlaw birth control, so the United States Supreme Court ruled that the Constitution protects a right to privacy that is not explicitly set forth in the text, and without using logic to expand on circumstances that lack a specific statement in legislation.  In a fast-paced world, this would leave people and businesses subject to a degree of lawlessness that would be dangerously chaotic.



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