Supreme Court

Neil Gorsuch to Senate Judiciary Committee: 'Yes, the Constitution Definitely Contains Privacy Rights'

The SCOTUS nominee talks unenumerated rights.



In his 2006 book The Future of Assisted Suicide and Euthanasia, Neil Gorsuch expressed significant doubts about the propriety of the U.S. Supreme Court recognizing and defending unenumerated constitutional rights under the Due Process Clause of the 14th Amendment. Citing the work of the late conservative legal scholar Robert Bork, Gorsuch wrote that the Due Process Clause has been stretched "beyond recognition" by the Supreme Court when the Court interpreted it to be "the repository of other substantive rights not expressly enumerated in the text of the Constitution or its amendments."

Today Gorsuch was asked about that part of his book during his SCOTUS confirmation hearings before the Senate Judiciary Committee.

"I'm interested in your view of privacy," said Sen. Chris Coons (D-Del.). As every con-law aficionado watching immediately understood, Coons was referring to the fact that the right to privacy appears nowhere in the text of the Constitution. Indeed, it is precisely the sort of thing that Gorsuch meant when he referred to (and criticized) "substantive rights not expressly enumerated in the text of the Constitution or its amendments."

Coons wanted to know what Gorsuch had to say about the matter now. "Do you believe the Constitution contains a right to privacy?" he asked the nominee.

"Yes, Senator, I do," Gorsuch responded. "Privacy is in a variety of places in the Constitution," he said, such in the Fourth Amendment right to be free from unreasonable searches and seizures, as well as in the Third Amendment's prohibition on the quartering of troops in private homes during peacetime. And the Supreme Court has said for decades that the "Due Process Clause protects privacy in a variety of ways," Gorsuch added. "So Senator, yes, the Constitution definitely contains privacy rights."

That is a very noteworthy answer. The idea that "the Constitution definitely contains privacy rights" is the exact opposite of what Robert Bork thought about this issue. Indeed, Bork was famous for castigating the Supreme Court for its 1965 decision in Griswold v. Connecticut, in which the Court first recognized a constitutional right to privacy in the course of striking down a state law prohibiting married couples from obtaining birth control devices. The problem with Griswold, Bork wrote in the Indiana Law Journal, was that the Court invented "a new constitutional right" out of thin air. "When the Constitution has not spoken," Bork declared, "the only course for a principled Court is to let the majority have its way." In other words, because the Constitution does not expressly list the right to privacy, the Supreme Court has no business enforcing that unwritten right against legislative enactments. Under the Bork-ian view, only enumerated rights are entitled to judicial protection.

Neil Gorsuch certainly seemed to take the Bork-ian view in his 2006 book. But today at his SCOTUS confirmation hearings, Gorsuch seemed to take a different view. In fact, Gorsuch's argument today that "privacy is in a variety of places in the Constitution" sounds a whole lot like the Griswold case's well-known argument that a "zone of privacy" can be found among the "penumbras" and "emanations" of the Constitution's explicit guarantees.

Does Gorsuch now reject the Bork-ian view of unenumerated rights? Or was he simply summarizing existing legal doctrine and keeping his own views to himself?

I encourage other members of the Senate Judiciary Committee to press Gorsuch with follow-up questions about this fundamental matter of constitutional law and interpretation.

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  1. Wait, in 1965 there was still a law preventing married couples from buying birth control? Why should I be surprised, when marital rape was still legal in 1970. And people wonder why libertarians are suspicious of the motivations of the forces behind the pro-life movement.

    1. Isn’t it still illegal to buy birth control? You need to get permission from a doctor first, you can’t just buy it over the counter

      1. The statute at issue in Griswold didn’t just apply to pharmaceutical birth control, but “any drug, medicinal article or instrument for the purpose of preventing conception,” so it also appears to have included diaphragms, condoms, etc.

      2. Pretty sure I don’t need a prescription for condoms…

      3. You can buy the morning after pill OTC.

        1. Yes you can. Or so I’ve heard. From a friend.

          1. Mmmmhmmm.

  2. Libertarians should be suspicious of all who selectively invoke the non aggression principle.

  3. Does everyone agree on what privacy means?

    1. SCOTUS justices know it when they see it. It’s how they usually decide things.

    2. I for one know the third party doctrine needs to die in a fire-y fucking hell.

  4. Doesn’t the 4th amendment enumerate a right to privacy?

  5. Why is it ok to ban marijuana but not ok to ban condoms?

    1. Why do you want condoms banned, you asshole?

      1. To protect the children, of course.

      2. Tying *not* to strawman here…

        A common argument against making birth control (including condoms, morning after pills, and pharmaceutical birth control) easily available yes that it “encourages promiscuity”. That is, if to can reliably have sex without consequences, then of course people will. Think of the “the only birth control you need is an aspirin (to hold between the knees)” kind of thinking.

        Moving to more directly religious thinking, the Catholic Church has opposed all birth control for a long time (not always, mind you. They used to put “ensoulment” at the”quickening”, and were fine with abortion before that point. I’m not sure when the change happened) on the basis of interfering with God’s plan, Obama’s sin, and “go forth and multiply”. Whether you agree or not, that is their faith (and parts are shared with other branches of Christianity), and religion had a nasty history of trying to legislate is religious edicts for everyone.

        1. Damn auto correct. “Onan’s sin”, not “Obama’s sin”

          1. Probably Obama’s as well, considering the alternative…

  6. For fucks sake the Constitution does not grant any rights. It enumerates a few of the rights the government is prohibited from violating. In other words it doesn’t say what we can do it says what the government can’t do.

    1. “In other words it doesn’t say what we can do it says what the government can’t do.”

      See, for example, free speech. No, the Constitution does not ‘grant’ free speech to KORPARASHUNS(!), it prohibits congress from keeping anyone from saying anything, Tony.

  7. I don’t mind the unenumerated rights as much as the unenumerated powers.

  8. People’s rights are implicit and not enumerable. The powers of the U.S. Government are explicit and enumerated.

    1. Amen! We have the right to do whatever we want, as long as we don’t use force to keep others from their equal rights. So: Individuals have the right to grow and eat spinach. One has the right to read whatever book he or she can afford down at the cheap-ass used book store. I have the right to put earrings in my nose and ears, or not, as I may or may not choose. Ditto for tattoos …. gawd some are so awful looking. Women have the right to do whatever they want to their own bodies …. sorry guys, but you have no say in what they do. And how about that crazy ass idea that says we can’t grow some weed out in the back yard, dry it out and smoke it? This is all so very simple. Don’t get me started on public schools ….

    2. Exactly!

      I get so tired of hear that “thus and such agency has the right to ……”

      No! Federal, state and local agencies have authority, or more commonly, have seized power, to do something.

      Ultimately, only individuals have rights (Citizens United builds upon those rights, which are not lost by having two or more individuals work in concert voluntarily. Alternatively a government agency is not a coalition of the willing which an individual can walk away from, so it does not maintain those rights.)

  9. Neil Gorsuch, 1;
    Chris Coons, 0;
    Damon Root, 0.

    Gorsuch took advantage of the plausible ambiguity left in the question by its use of the indefinite article and played ’em like a fiddle. He essentially answered the question “is there a right to something that could colloquially be called ‘privacy’?” There are indeed several in an originalist interpretation of the Constitution. The Third and Fourth Amendments contain perfect examples of such privacy-related rights. Also, when he then mentioned the Due Process Clause he switched to speaking about *what the Supreme Court has held*, not what he thinks is actually correct, which is perfectly consistent with what he wrote in his book.

    There’s nothing to probe further, Damon, unless you don’t support his confirmation.

    1. Does Gorsuch now reject the Bork-ian view of unenumerated rights? Or was he simply summarizing existing legal doctrine and keeping his own views to himself?

      I think it’s fair to day damon captured that ambiguity

  10. “I have no recollection of those events as you have described them, Senator.”

  11. Does the right to privacy include telling the IRS to fuck off when they ask where I work, how much I make? If not we need a different term for whatever we’re talking about.

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