With Samuel Alito’s nomination to the Supreme Court, bloggers are tackling Roe vs. Wade, and the precedent-setting Griswold vs. Connecticut. Most bloggers on both sides of the isle wrestle with Justice Douglas’ “penumbras and emanations,” which I, as a skeptical progressive, find to be bad law.
Now, I’m not a lawyer, but I’m a reasonably intelligent and highly analytical philosopher-type. Here’s my counterfactual-world alternative to have argued to Griswold’s proper conclusion.
Instead, IMO, Douglas should have tried to craft a decision around the Ninth Amendment combined with common law, plus the Fourth Amendment, the First Amendment and possibly the Fifth Amendment. and previous Supreme Court rulings.
Warrants for first sub-conclusion/major premise:
1. Note that the Fourth Amendment's provisions about being "secure in their persons"; note that this is a privacy right issue, and not "just" a protection against government coercion.
2. The Fifth Amendment might be used to argue that protections against self-incrimination are likewise a privacy right, not "just" a protection against government coercion.
3. Note that the freedom of religion clause of the First Amendment is also, in part, a privacy right, because churches are voluntary and private organizations.
4. Beyond that, get to the question of a broader right to privacy as an established tenet of common law, citing appropriate state and federal court rulings on privacy rights issues in general. Cite from as broad a range of issues being litigated or tried as possible, to show the breadth of a "general right to privacy."
Sub-conclusion/major premise: An explicit right to privacy is general, fundamental, pervasive and broad.
Minor premise: This right, though not enumerated, being fundamental, is covered by the Ninth Amendment.
Conclusion: Therefore, an explicit right to privacy, including matters of sexual contraception, is a constitutionally protected right.
Bonus 1: This gets, short of a constitutional amendment, a privacy right securely anchored in constitutional law.
Bonus 2: It's relatively a short step from here to overturning sodomy laws, whether oriented against homosexuals only, or universal.
A draw on Roe: I don't think it would be any easier to argue to Roe from here, but I don't think it would be any harder.
Update:
An e-mail from Kevin Drum made me realize I had not explained carefully enough how I different from Douglas, and the import of that.
Douglas got to his conclusion in a more wandering way than I think my proposed argumentation would. And he used those nutty words.
I’m not a lawyer, of course, but I think he could have built a broader case in case law and common law and not used the language he did.
By building a broader foundation, he could then have made a more unqualified declaration that said, simply: “A explicit right to privacy, broad-ranging in nature, is one of the fundamental unenumerated rights protected by the Ninth Amendment.” Period.
In other words, “penumbras” and “emanations” are fudge and hedge words. I think Douglas himself may have been looking down the road past Griswold and afraid to step much farther.
It’s kind of like, in classical music, Richard Strauss looking across the divide into the 20th century, seeing Stravinsky, etc. on the road ahead, and pulling up short.
November 01, 2005
DeLay wins a skirmish
Dick DeGuerin earned Tom DeLay’s hard-laundered won money by getting State District Judge Bob Perkins removed from trying DeLay’s money-laundering case.
To my mind, the only good thing to see in this is that the change of venue request was not discussed. Since the great majority of Texas judges are Republicans, and many of those active ones, the idea that a regional administrator, whomever this is — somebody from the Court of Criminal Appeals? —is likely to have at least some degree of GOP leanings.
Besides, it could set bad precedent in this case. That will only come true, though, if the change of venue is also granted.
In Texas, judges must run for office in partisan elections and are free to donate to political candidates and causes. Perkins is a Democrat, as are all but one of the district judges in Travis County, where Austin is located.
DeGuerin also has asked for a change of venue to move the case to another county, but that has not been ruled on. …
Travis County District Attorney Ronnie Earle, who has led the investigation against DeLay, argued that Perkins should be allowed to stay on the case and disagreed that the case is political.
"This is not a political case. This is a criminal case in which Mr DeLay stands charged with a felony," he said.
"There is no basis, no precedent for recusal based on a judge's political contributions," said Earle, who is a Democrat. …
Earle said the several thousand dollars Perkins had given Democrats over the years was "paltry" in comparison to how much money DeLay has raised and in some cases, used in "intimidating judges with whom he disagreed."
To my mind, the only good thing to see in this is that the change of venue request was not discussed. Since the great majority of Texas judges are Republicans, and many of those active ones, the idea that a regional administrator, whomever this is — somebody from the Court of Criminal Appeals? —is likely to have at least some degree of GOP leanings.
Besides, it could set bad precedent in this case. That will only come true, though, if the change of venue is also granted.
October 29, 2005
When will DeLay and DeGuerin smarten up?
Tom DeLay's attorney, Dick DeGuerin, requested the removal of state Judge Bob Perkins earlier this week because the judge has made 34 contributions since 2000 to Democratic and liberal groups, above all to MoveOn.org.
So Travis County District Attorney Ronnie Earle says, in essence, “You wanna piece of me? You wanna piece of me? So, Earle subpoenaed Perkins’ campaign contributions, but threw nearly 30 other potential trial judges on DeLay’s money laundering charge under the bus as well.
At least six Tarrant County judges contributed to the Tarrant County Republican Victory Fund, which helps support federal and local GOP activities.
Fun with Tom and Dick continues.
So Travis County District Attorney Ronnie Earle says, in essence, “You wanna piece of me? You wanna piece of me? So, Earle subpoenaed Perkins’ campaign contributions, but threw nearly 30 other potential trial judges on DeLay’s money laundering charge under the bus as well.
Earle also subpoenaed records from the Texas Ethics Commission of political contributions from 2000 to 2005 by nine judges in Tarrant County, 17 in Dallas County and five in Travis County.
DeLay has requested that his trial be moved out of Austin's Travis County, where Earle is the district attorney and Perkins is the judge. Tarrant and Dallas counties are possible locations should the trial be moved.
Almost all Tarrant and Dallas judges whose records were subpoenaed have made federal political contributions to Republican groups, according to the Center for Responsive Politics.
The center does not monitor contributions to state candidates or parties, which is the information Earle seeks.
At least six Tarrant County judges contributed to the Tarrant County Republican Victory Fund, which helps support federal and local GOP activities.
Fun with Tom and Dick continues.
October 28, 2005
GOP rats will flee the sinking ship
From what I’ve read, a few GOP Congressional rats are already starting to scurry away from Plamegate as fast as they can.
I’m waiting for Clintonesque comments such as:
1. “I did not have verbal intercourse with that man.”
2. “Scooter. Nope. Can’t say I know anybody by that name.”
3. “What sort of self-respecting man would call himself Scooter?”
I have no doubt that, if he thinks it will help himself out, Rove will orchestrate a Congressional and other GOPer "shunning" of Libby. Plus, given rumors of some degree of falling out between Bush and Cheney, this gives Rove the chance to get out the long knives on that issue.
Update, Oct. 31:
Just on time, here’s one of the biggest rats.
The mind boggles to think that Crony Cornyn could be on the SCOTUS short list.
I’m waiting for Clintonesque comments such as:
1. “I did not have verbal intercourse with that man.”
2. “Scooter. Nope. Can’t say I know anybody by that name.”
3. “What sort of self-respecting man would call himself Scooter?”
I have no doubt that, if he thinks it will help himself out, Rove will orchestrate a Congressional and other GOPer "shunning" of Libby. Plus, given rumors of some degree of falling out between Bush and Cheney, this gives Rove the chance to get out the long knives on that issue.
Update, Oct. 31:
Just on time, here’s one of the biggest rats.
Sen. John Cornyn (R-Tex.), a vigorous defender of the administration, said on ABC: "I think what we found out this week is that any alleged wrongdoing is really confined to a single individual. Those who were expecting an indictment, indicating a broad conspiracy to out a covert CIA agent or -- are going to be disappointed because there is no evidence to support that."
The mind boggles to think that Crony Cornyn could be on the SCOTUS short list.
What’s Rove got that Fitz wants?
In other words, why didn’t special prosecutor Patrick Fitzgerald indict White House Assistant Chief of Staff Karl Rove?
If rumor is true that Rove turned down a plea bargain to one count of perjury, it certainly means that Fitz has got more arrows than that in his quiver.
I don’t think he offered Rove the plea because his case is significantly weaker than that against Libby.
Instead, he needs Rove, along with what he’s already got from Libby, to go higher up the food chain. And, we know there’s not much higher up the food chain.
And, if Karl’s not going to play ball, with a reimpaneled grand jury, Fitz can get more lesser fry in the White House to lay more at Rove’s door.
That’s my take on where we’re at right now.
Update
Raw Story confirms me on this.
If rumor is true that Rove turned down a plea bargain to one count of perjury, it certainly means that Fitz has got more arrows than that in his quiver.
I don’t think he offered Rove the plea because his case is significantly weaker than that against Libby.
Instead, he needs Rove, along with what he’s already got from Libby, to go higher up the food chain. And, we know there’s not much higher up the food chain.
And, if Karl’s not going to play ball, with a reimpaneled grand jury, Fitz can get more lesser fry in the White House to lay more at Rove’s door.
That’s my take on where we’re at right now.
Update
Raw Story confirms me on this.
“Twist slowly in the wind”
So Scooter gets it, while Rove remains on Fitzgerald’s clock, in Fitz, Round I. Apparently Rove didn’t listen to the advice and warnings of Mark Corallo about Fitz’s toughness and integrity when he allegedly turned down a plea bargain to cop to one count of perjury.
Instead, riffing on Nixon’s comment about FBI Director L. Patrick Gray, he’s left to “twist slowly in the wind.” Of course, nobody else is doing this to Rove. He hoist himself by his own petard.
Update
Assuming Raw Story is correct, that’s indeed what’s happening as we speak. Surely, the public announcement of this turns the heat under Rove’s boiling pot even higher.
The fact that Fitz could be looking at civil rights violations, as well, means that this has entered a whole new dimension.
And something tells me that Fitz will be once scorned, twice shy, on cutting Rove any deals.
Instead, riffing on Nixon’s comment about FBI Director L. Patrick Gray, he’s left to “twist slowly in the wind.” Of course, nobody else is doing this to Rove. He hoist himself by his own petard.
Update
Assuming Raw Story is correct, that’s indeed what’s happening as we speak. Surely, the public announcement of this turns the heat under Rove’s boiling pot even higher.
The fact that Fitz could be looking at civil rights violations, as well, means that this has entered a whole new dimension.
And something tells me that Fitz will be once scorned, twice shy, on cutting Rove any deals.
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