If you’re anything like me, you have grown increasingly tired of the ‘Sarah Palin/Katie Couric” show that CBS seems to have been running longer than “Survivor.” But one really interesting item of note from last night’s session was that when Couric asked Palin if she believed that the Constitution contained an inherent right of privacy, she said yes.
Here’s the funny part: you know who does not believe that? John McCain. As Alex Koppelman pointed out in Salon, McCain made a floor speech in 1987 expressly supporting Judge Robert Bork’s feeling on the issue during Bork’s confirmation. Full text of that can be found here.
Us savvy law student types know that the right of privacy found in Griswold v. Conneticiut made Roe v. Wade possible. So if Palin really believes that the Constitution contains such a right, then she would tacitly be supporting the findings of Roe. From her public statements, we know that she does not. Giving her the benefit of the doubt, she may believe that the Constitution contains a right of privacy that does not extend to abortion.
But is that possible? Can you limit the right of privacy once you’ve found it?
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“But is that possible? Can you limit the right of privacy once you’ve found it?”
Cordy, J.–in his dissent from the majority in Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) (concluding that the Commonwealth may not deny the benefits of civil marriages to two same-sex individuals wishing to marry)–writes (and do forgive me for not properly formatting this as a long quote):
“Although some of the privacy cases also speak in terms of personal autonomy, no court has ever recognized such an open-ended right. ‘That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected….’ Washington v. Glucksberg, 521 U.S. 702, 727 (1997). Such decisions are protected not because they are important, intimate, and personal, but because the right or liberty at stake is so ‘deeply rooted in our history and traidtions, or so fundamental to our concept of constitutionally ordered liberty’ that it is protected by due process. Id.”
Granted, this is a dissenting opinion in a State case. Nonetheless, I think it demonstrates quite nicely that, though a right to privacy may be inherent in certain provisions of the United States Constitution (and in their State constitution analogs), it is not a limitless, all-encompassing right. When determining cases dealing with privacy rights and substantive due process issues, the courts look at those rights and liberty interests that are “fundamental” and “deeply rooted” in our society. That approach to cases of this ilk–as well as the Court’s decision not to recognize a limitless right to personal autonomy–necessarily limits the scope of the right to privacy. I think we can agree that reasonable minds may differ on where to draw the line between what is and is not “deeply rooted.”
Of course you can limit it, Dr. B. There are limits on all of the rights in the Bill of Rights – if you can limit a right that is expressly granted, you sure as hell can limit a right that’s simply found through inference and interpretation. You act like the right to free speech, keep and bear arms, etc. don’t have limitations. They do. If there is a right to privacy, which I don’t agree that there is, it would be subject to the same types of limitations the rest of them are.
Also, you can read a right to privacy into the Constitution without necessarily having to say that such right is more fundamental than the baby’s right not to be dismembered in utero.
In other words, we may have a right to privacy and bodily autonomy, but so does the baby, and since his interest is one of life or death and his mother’s is one of simple embarrassment or overwhelming desire not to have to give up DirecTV and unlimited text messaging, his interest in not being killed ought to carry a bit more weight.
That said, I’m not surprised Palin answered the question the way she did. She, like the rest of America (up to and including most of the Supreme Court), has probably not read the Constitution.