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How a 1965 Supreme Court Ruling Explains the Partisan Battle Over Kavanaugh's Confirmation

Opposition to Kavanaugh stems from a case that was decided the year Kavanaugh was born and was argued by professors from the law school from which he graduated.

One way to look at the situation of Brett Kavanaugh, the Supreme Court nominee awaiting a Senate vote, is as only the latest episode in the long story of Griswold v. Connecticut.

In other words, it's a story about Yale Law School.

Griswold is the 1965 case in which the Supreme Court struck down a Connecticut law that had outlawed the use of contraception. The court's opinion, by William Douglas, found a "right of privacy," reasoning in part that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."

Griswold was the basis for Roe v. Wade, the abortion rights case decided by the Supreme Court in 1973. It was the basis for Lawrence v. Texas, the 2003 case in which the Supreme Court struck down a Texas anti-sodomy law. It was the basis for Obergefell v. Hodges, the 2015 case in which the Supreme Court found a constitutional right to same-sex marriage. In all three cases—Roe, Lawrence, Obergefell—the court's opinions cited Griswold extensively and relied on it.

Griswold was a Yale Law School project from beginning to end. The three lawyers who brought and won the case were two Yale law professors, Fowler Harper and Thomas Emerson, and a Yale Law School graduate, Catherine Roraback. Emerson was dean of Yale law school. Their client was in essence C. Lee Buxton, who was the chairman of the department of obstetrics and gynecology at Yale medical school. "Griswold" was Estelle Griswold, who established a birth control clinic in New Haven with Buxton to test the law.

The effects of the episode were eventually felt by another Yale law professor, Robert Bork. Bork, who taught at Yale from 1962 to 1975 and again from 1977 to 1981, was nominated to the Supreme Court by President Reagan in 1987. Bork's view that the Griswold opinion was flawed was the subject of questioning in the nomination hearings that eventually led to Bork's name becoming a verb. "All I have done was point out that the right of privacy, as defined or undefined by Justice Douglas, was a free-floating right that was not derived in a principled fashion from constitutional materials," Bork told Senator Biden.

Now comes Judge Kavanaugh, a graduate of Yale and Yale Law School. When President Trump nominated him to the Supreme Court, the Yale Law School issued a press release effusively praising him. It has since annotated the press release with an apology and clarification. On Friday, the school's dean, Heather Gerken, under pressure, issued a statement "calling for an additional investigation into allegations made against Judge Kavanaugh" and declaring that "proceeding with the confirmation process without further investigation is not in the best interest of the Court or our profession."

The Kavanaugh confirmation fight has bitterly divided the Yale Law faculty, to the point where one professor, Amy Chua, is being attacked, and defended, for how she allegedly advised students who wanted to apply to be his law clerks.

One reason that many Democratic senators and advocacy groups opposed Kavanaugh's confirmation even before a sexual assault allegation surfaced was their fear that a Justice Kavanaugh and his colleagues might overturn or limit the privacy right discovered in Griswold and extended in its successor cases.

People have different views on the wisdom of Griswold. Those who think it unwise or cruel for a state to outlaw contraceptives, abortion, gay sex, or gay marriage will celebrate the outcomes the opinion allowed. Others may agree with the policy effects but have concerns nonetheless about the process by which unelected justices overturn democratically enacted laws, and do so not on the basis of the Constitution's text but rather on "penumbras, formed by emanations." Some people may dislike both the process and the outcome. The number of those people, the intensity of their views, and their political power partly explain why the Yalies and their successor chose the legal route rather than relying on the state legislatures.

Whatever you think of Griswold, though, it's difficult to deny that it has been immensely consequential.

The opposition to Kavanaugh stems in part from Griswold, a case that was decided the year Kavanaugh was born and a case that was litigated by professors from the law school from which he graduated. It's too soon to see whether that amounts to tragedy or poetic justice, and it also may depend on your own view of the case. For sure, though, it is an example of how our history shapes our politics. It is, too, a demonstration of how our universities, for better or worse, are at not at the periphery of today's American perplexities, but at the center of them.

Ira Stoll is editor of FutureOfCapitalism.com and author of JFK, Conservative.

Photo Credit: Win McNamee/Pool/ZUMA Press/Newscom

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  • TuIpa||

    Oh Ira...

  • BigT||

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

    That's a wide open playing field.

  • Robert||

    It is, but only 1 of the judges in the majority invoked it as the reason. The rest just bullshitted.

    The decision may be paraphrased as, the Constitution wouldn't exist if it weren't for people, & people wouldn't exist if it weren't for making babies. Therefore anything involving making babies is supreme over anything in the Constitution.

  • ||

    Subtext: the Kav hearings all about how he would treat Roe v. Wade as precedent.

    I find it credible that Ira just trolled the editorial staff at Reason.

  • Eddy||

    "fear that a Justice Kavanaugh and his colleagues might overturn or limit the privacy right discovered in Griswold and extended in its successor cases"

    Privacy rights have already been limited by the court.

    The "right" applies to certain sex acts, and to abortion.

    It doesn't mean the right to freely associate with whomsoever you wish - in fact, that particular right is getting narrower thanks to "gay marriage."

    It doesn't mean a broad right to be free from government snooping via the surveillance state.

    It doesn't mean the right to rent your home to paying guests.

    It doesn't even mean the right to keep your own home.

    So what does the "right to privacy" mean, exactly, beyond its usefulness as a club in the culture wars?

  • Eddy||

    Maybe they've extended it to letting your relatives live in your house, as opposed to renting to paying guests.

    And as a shout-out to ENB, it doesn't mean the right to engage in commercialized sex.

  • JonBlack||

    My favorite "right-to-privacy" whiff from the port side of the aisle was PPACA. Not only was their no right-to-privacy in terms of not having to turn over the totality of your personal medical information to a third-party (whose frequent misconduct was the alleged genesis of the legislation no less) but Team Blue never even considered that their precious right was implicated by that basket of corporate taint-slurpage.Try and find a challenge of PPACA based on the RTP from someone on Team Blue.

    Heller is similarly incompatible with the RTP. A man who doesn't want to buy a gun, doesn't want to sell a gun, doesn't want to carry a gun- and is compelled by the state to carry gun during his employ- simply wants to keep a gun in his private residence. And how did team "right-to privacy" deal with that one? They didn't. You'll have trouble finding anyone who claims to believe in a Right to Privacy even discussing the case in those terms.

    Much like the "evolving constitution," the "right-to-privacy" is really important. Except when it's not.

  • Sebastian Cremmington||

    And that was the big whiff by liberals—they should have found a right to keep a gun in one's house for self defense as fundamental to the right to privacy...but they are short sighted partisan hacks. Another irony is that the justices that purport to expanding liberty decided to not expand liberty and write a strict constructionist opinion with respect to the 2A!?! As absurd as Scalia's majority is using shaky reasoning from a guy with a 206 IQ the dissent is even more absurd in context.

  • John||

    So you have a list of cases where the Court overturns one state law after another and decides policy for the entire nation on some very emotional and intense issues. It is perfectly fine for Reason to support those cases. What is not fine is for reason to support those cases while at the same time claiming they want a less powerful and political court.

  • Libertymike||

    Although I support Griswold's result, I have always taken issue with Douglas' reasoning in that he specifically rejected Lochner and opted instead for penumbras.

  • John||

    It is like I say below in response to Eddy. Douglas' didn't care about privacy. He cared about enforcing what he thought was the proper policy on the country. Privacy was just his rationalization.

    If Douglas had used Lockner to kill the law or killed in some other way that recognized a broad based and consistent interpretation of the Constitution, there would have been a lot less emotion and anger over these cases since everyone would have ended up getting something out of it rather than the courts picking and choosing which causes they thought were worthy.

  • Libertymike||

    Agreed.

    Some what of a side note, if I remember correctly, Douglas had difficulty keeping his pecker in his pants.

  • Eddy||

    His wives *did* tend to get younger and younger.

  • Juice||

    Douglas' didn't care about privacy. He cared about enforcing what he thought was the proper policy on the country. Privacy was just his rationalization.

    Same as it ever was.
    Same as it ever was.
    Same as it ever was.
    Same as it ever was.

  • aajax||

    See Article VI, Section 2.

  • Eddy||

    As long as we're grooving to the penumbras and emanations, couldn't it be argued that the right to *property* generates such penumbras?

    I mean, there are so many guarantees of property rights in the Constitution, from the protection of contracts to the due process clause to the Takings Clause to the excessive fines clause, why can't *these* clauses generate a mystical emanation of a penumbra to create a right to property?

  • John||

    Sure you could. And you could also argue that the right to privacy includes the right to buy and sell whatever you want with a willing customer. As long as it is a private transaction, where does the government get off regulating it consistent with this "right to privacy".

    The Courts could do all kinds of things. They don't because they don't mean a single word of what they say in these cases. These cases were not about privacy. They were about the Court deciding that it liked certain policies and using "privacy" as an excuse to impose them on the country.

  • Eddy||

    It seems like a bait and switch: "You like privacy, don't you? Of course you do! Then of course you won't mind legalized abortion and government recognition of same-sex marriage. I bet you didn't know we could pull these wonderful things out of the Bill of Rights and the Fourteenth Amendment!"

  • John||

    If you went back in time to 1965 and said Griswald would end with the enforced legalization of gay marriage, people would have thought you were insane. But that is exactly what it did.

  • Eddy||

    Indeed, such predictions would have been written off as the paranoia of right-wing nutjobs, indeed the fact that they made such predictions would have been pointed to as evidence of the insanity of the "right wing."

  • John||

    Scalia said in his dissent that Lawrence would end up with the Court forcing the states to recognize gay marriage and he was called paranoid.

  • Juice||

    He was correct. And paranoid.

  • EscherEnigma||

    Depends on which people you're talking about.

    The defendants in Loving v. Virginia (1967) talked about how ruling against miscegenation laws would mean same-sex marriage eventually.

    And it's only a few years before Baker v. Nelson (started 1970, denied by SCOTUS 1972).

    So it's not like some people weren't already thinking about it, it's just that a lot of people weren't.

  • John||

    But legalizing homosexuality is a long ways from gay marriage.

  • EscherEnigma||

    You're thinking of Lawrence v. Texas (2003), which also has roots in Griswold v. Connecticut.

    But it's also irrelevant to my point, which was that folks were talking about gay marriage, to the SCOTUS, within a few years of Griswold v. Connecticut (1965).

  • John||

    Sure some people were. And they were on the fringe and no one believed the courts would ever buy it.

  • Rev. Arthur L. Kirkland||

    legalizing homosexuality is a long ways from gay marriage

    More or less distant than ending slavery was from desegregating schools?

  • aajax||

    Why should anyone complain about being granted more rights?

  • aajax||

    Why should anyone complain about being granted more rights?

  • retiredfire||

    Well, in this case that new "right" led to the killing of millions of unborn children.
    How would you feel if they created a right, out of "penumbras and emanations" that said you could be killed?

  • Libertymike||

    True, but, if you take the New York statute in Lochner, it was first a case of the legislature, at the bidding of the unions and the big bake shops, imposing a one-size fits all maximum work week on all bakeries.

    Yes, the Supreme Court, in turn, imposed its tepid free enterprise preference on the state of New York. I say tepid because the so-called Lochner era was no free market jurisprudential paradise.

  • John||

    After Wickard, the government could tell you what plants you could put in your garden but after Griswald you couldn't tell the drug store not to sell your minor daughter birth control.

    I really don't think the desire to preserve freedom and privacy was behind any of this.

  • Juice||

    The Courts could do all kinds of things. They don't because they don't mean a single word of what they say in these cases.

    This much is true.
    This much is true.
    I know this much is true.

  • Mickey Rat||

    Well, yes. Turning the Supreme Court into a super legislature bent on effectively writing its own law and constitutional amendments might have something to do with the deep politicization of the confirmation process and may gave been a bad idea overall.

  • John||

    Maybe telling people they could no longer define marriage and when life began through the political process but instead such things were defined by judges, made people a bit emotional about who got to be the judges? Who knew?

  • Eddy||

    I'm still not convinced that putting living human beings outside the protection of the law without a legal trial is consistent with due process.

    The ancestor of the due process clause, the Magna Carta, prohibited arbitrary outlawry - and isn't the stripping of legal protection from whole classes of people, arbitrary outlawry?

  • Eddy||

    In the era of the Magna Carta, of course, the best scientific brains believed that a fetus was an inert mass, with no life, until a certain period of the pregnancy ("quickening").

    I suppose that in the name of original intent we can defer to medieval science, and the legal definitions based on medieval science, but even if we did that how could we justify legalizing post-"quickening" abortions?

  • aajax||

    It's not the libertarian who needs to justify anything, it is the person seeking to regulate.

  • John||

    It is not.

  • Eddy||

    Then I wonder why the choicers freaked out when it was proposed to define "person" in the Mississippi Bill of Rights - including the state due process clause - to include the unborn? Almost as if recognizing the unborn as protected by due process might endanger the regime of legal abortion?

  • EscherEnigma||

    Um, that "personhood" amendments/laws are a direct attempt to outlaw abortion, and are opposed on those grounds, isn't controversial.

    No one is really being duplicitous on that one. Anti-abortion folks want the laws because they think they're a runaround Roe v. Wade, and pro-choice folks oppose them for the same reason.

  • Eddy||

    Yes, the legal consequences of legal personhood are widely recognized, on both sides. Which is my point.

    Which is why the Supremes relegated the unborn to a status of "potential life" or "who knows?"

  • EscherEnigma||

    Then why are you trying to suggest duplicity on the part of pro-choice advocates who oppose such bills?

  • Eddy||

    What are you talking about? I was *agreeing* with them that personhood for the unborn threatens the "right" to abortion.

  • Eddy||

    You see above my rhetorical question was in response to John.

  • Just Say'n||

    If you refer to pro-life people as "anti-abortion" than pro-choice people should be referred to as "pro-abortion".

    Otherwise, just use the names that they use to identify themselves as.

  • Nardz||

    Agreed

  • Eddy||

    It's difficult to keep up because they used to prefer the term "pro choice," but then some of them dropped the terminology.

    For all I know, they might be calling themselves "brights" now. Or "friends of humanity."

  • MichaelL||

    Being unable to force my religious beliefs on others, (of which I feel is what a free person deserves) I feel it is also hard to eliminate abortions altogether. Yet, when considering the ability of the fetus to experience pain, it certainly places its person-hood well before the 20 weeks. That is what most of us believe to be that age at which it might be viable, outside of the womb. I might be able to present my moral objections to abortion prior to that, I am unable to see anyone who does not share my beliefs, as bound by them, when it comes to destroying the lives of said fetuses. I hate abortion. But, I have to admit that the death of an unborn child, by the action of another, in the Old Testament, was held to be different than that of a live born infant, and even children up to the age of toddlers. The infant death rate meant high reproduction rates were needed to sure that enough survived, to continue to increase the population. Modern medicine has changed all of that! I don't see abortions being completely eliminated, even if Kavanaugh, or even more, Catholic justices join the ranks of the Supreme Court.

  • Rev. Arthur L. Kirkland||

    Maybe telling people they could no longer define marriage

    Where 'define marriage' = 'discriminate against gays because small-mindedness and superstition'

    Carry on, clingers. Adjust that libertarian drag, though . . . your right-wing backwardness is still showing.

  • Just Say'n||

    To be fair, states still define marriage for polygamy, familial relations, and age of consent. The court ruling didn't change any of that and they denied a hearing for a Mormon polygamist couple allowing the state ban against the practice to stand.

  • Rev. Arthur L. Kirkland||

    How does that make old-timey gay-bashing, or Republican-conservative homophobia, look any better?

    (Spoiler: Adults neither advance nor accept superstition-based arguments in reasoned debate of public policy issues.)

  • Kivlor||

    You know, the bans on homophobia are due to an old-timey Christian "superstition" right?

  • retiredfire||

    What is to stop those restrictions from being challenged based on the ridiculous 0bergefell ruling?
    After all, it was all about "love" - as if that has any legal definition.
    Remember, the first court support for homosexual pretend marriage was over the ability to inherit, without being taxed.
    I'm waiting for parents to demand to be allowed to "marry" their children to avoid similar inheritance taxes.
    0bergefell made the requirement of a marriage having to be consummated a moot point, since homosexuals can't engage in real sex, only mutual masturbation.

  • DaveT1000||

    That is a policy-based argument. I generally agree that gay marriage should be legal, but that's a reason to argue what laws a legislature should enact.

    It doesn't even approach the beginnings of a reason for the Supreme Court to decide that doing so is a constitutional requirement. Just because there's a persuasive argument that something is a bad idea as a matter of policy does not mean that it's unconstitutional.

  • MichaelL||

    Considering marriage as a religious institution, maybe we should be like Great Britain and allow for civil unions for most people, with marriage reserved for those people who prefer to follow the religious type of marriage. Let the government stay out of marriage. If gay people want to call it ta marriage, then more power to them. But, let the government be involved in only the civil part of issuing the licenses.

  • Juice||

    define marriage

    Does "define" = "outlaw certain forms of"?

  • John||

    Yes. Define necessarily means defining what is and what is not something

  • Rev. Arthur L. Kirkland||

    Let's hear the libertarian's -- or decent person's -- defense of government gay-bashing!

  • Robert||

    Defining marriage thru political process? What about defining it thru custom?

  • Robert||

    See, I think courts deciding who's married is the right way to do it. It's just that they should decide via common law, not constitutional B.S.

  • aajax||

    That's what judges are for - to make decisions according to a system of reason, as opposed to "the people", who only vote according to their personal preferences and prejudices.

  • retiredfire||

    Except that the Ninth Amendment doesn't put the courts in the position of retaining the ability to enumerate rights. That is left to those, who "vote according to their personal preferences and prejudices".
    And the enumeration of these rights have had the effect of overriding Article 1, Section 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
    The court aren't included in that one, either.

  • aajax||

    I think that was Rev's point.

  • aajax||

    If we elect a state legislature that requires that all children to attend public schools, what constitutional grounds would you use to oppose it, other than to declare that our childrens' education was a private matter?

  • Brandybuck||

    It wasn't writing its own amendment. It SHOULD have cited the Tenth Amendment, but by the date 1965 references to the Tenth Amendment were bad manners, and so they resorted to a penumbra.

    The purpose of the US Constitution is to limit the Federal Government, and the 14th Amendment extends that to the states. The SCOTUS was correct in slapping Connecticut down for imposing restrictions it had no right to impose.

  • John||

    You miss the point. If you want to say that they had no right to impose those restrictions, fine. But then apply that logic in every other case and start striking down regulations having to do with economics and everything else. IF the court had done that, I think these cases would be less emotional and less controversial because everyone would have seen a freedom they cared about enhanced. That is not what they did, however. They applied their concern for "privacy" to areas involving sex and policies relating to sex they didn't like. Every other area of life was left to the mercies of the state and the rational relationship text.

    So, they really didn't care about "privacy". They cared about furthering the sexual revolution and policies about sex they approved of. Privacy was just a cheap means of doing that.

  • Libertymike||

    Hey, slightly off topic, but:

    Just went to get some coffee at Dunkin Donuts and heard Ann Coulter on Howie Carr's radio program, and she asked Howie if he had heard or read about Maria Shriver's tweet in which she rhetorically asked, in words to the effect, "what could be more frightening to a woman than having to listen to Lindsey Graham?"

    Howie responded that, yes, he had and he, in turn told Ann Coulter that one person responded, "a women, alone in a car driven off a bridge by your uncle."

    TOUCHE!

  • John||

    I saw that. I think the Kennedys and the Jesuits ought to sit this one out. I can't believe the Jesuits shot their mouth off about this last week.

  • Rev. Arthur L. Kirkland||

    Should people whose views are driven by superstition sit out reasoned debate on public policy?

    If so, there goes the current right-wing electoral coalition.

  • TuIpa||

    "Should people whose views are driven by superstition sit out reasoned debate on public policy?"

    No you can still participate.

  • aajax||

    Supposedly there was a "compelling state interest" in imposing those economic regulations etc., but no significant interest could be found for banning contraception, which was objected to merely on the basis of personal morality or religion and not on any demonstrable harm to the public. And when you think about it, are you really going to lock someone up for using contraception or assisting in it? It seems absurd now.

  • DaveT1000||

    Griswold concerned a Connecticut state law. I don't see how the Tenth Amendment gets you much of anywhere with state laws: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." That gets you a long ways toward limiting the power of the federal government (or at least should), but it does very little to address whether a state government has the power to enact legislation.

  • retiredfire||

    "... it does very little to address whether a state government has the power to enact legislation."
    That's where state constitutions come into effect.
    That was the intent of the Founders - that The US Constitution restricted what the feds could do, and the states got to restrict what each one could, with the idea that the state legislatures were closer to their citizens and more accountable.

  • Tony||

    As we all know, as libertarians our primary mission in life is to ensure that as few individual rights exist as possible.

  • Derp-o-Matic 6000||

    It's not denying that those rights exist. In general, the libertarian view of inherent rights is rather expansive.

    The question,though, is what rights does the US Constitution prohibit state governments from infringing on. There's the ones that are explicitly listed and then....? Five over-educated octagenarians go with their feelz?

  • EscherEnigma||

    Well, it's that or the 9th and 10th amendments being meaningless.

  • Colossal Douchebag||

    Keep the hate alive, Tony.

  • retiredfire||

    No, Tony, it is your communist party that's "primary mission in life is to ensure that as few individual rights exist as possible".

  • Dillinger||

    >>>The opposition to Kavanaugh stems in part from Griswold

    2% Griswold, 98% Romper Room.

  • Just Say'n||

    I'd say 99% Roe

    No honest person thinks that Griswold is in danger of being overturned. That use to be a progressive talking point, but I see woketarians have adopted it now too, which makes sense because there really isn't much difference between the two

  • Dillinger||

    fair enough 2% Roe, 98% Romper Room works for me

  • Just Say'n||

    99% Roe and 1% Romper Room makes more sense. Or we could pretend like the entire Democratic caucus, except for four of them, didn't voice opposition to the nominee even before he was announced.

  • Dillinger||

    we're saying the same thing I'm just leaning more towards the whole establishment is insane.

  • Just Say'n||

    I think they're more cynical than insane. But to each his own

  • Hank Phillips||

    There's the 1972 pro-choice electoral vote generated in Virginia by fewer than 4000 popular votes for a Libertarian Platform disallowed in Virginia. Then there's the 4 MILLION popular votes cast for the LP in 2018, equal to all the votes cast in... Put it this way: Yes Virginia, there really is a kernel of Americanism in the Libertarian Party!

  • Scarecrow Repair & Chippering||

    They may have chosen a bizarre path to the right to privacy, but at it's core, that's what the 4th amendment is.

  • Just Say'n||

    Except, the "right to privacy" (which only really protects abortion) is far stronger than the 4th Amendment

  • jcw||

    This article is a tacit support of these cases by Reason. So sayeth the Reason comment section.

  • TuIpa||

    "the Reason comment section."

    Yeah, that guy is an asshole.

  • The Reason Comment Section||

    Hey! Fuck you!

    Anyway, articles like this are tacit support of these cases by Reason.

  • Eddy||

    It's all one guy with a lot of sock puppets.

  • Weigel's Cock Ring||

    And Mary Stack isn't a guy.

  • Mary Stack||

    Well, look at you Mr. Kiss and Tell.

  • Diane Reynolds (Paul.)||

    STFU Tulpa!

  • TuIpa||

    Ok.

    J/k

    Fuck you.

  • John||

    I know you are really stupid JCW, but even you can't be so fucking stupid that you think reason doesn't suport Griswald, Roe, Lawrence and Ogberfell. Not even you are that fucking stupid. If you are, however, do some searching and see if you can find a single instance where Reason ever so much as criticized those cases.

  • Rev. Arthur L. Kirkland||

    Libertarians supporting Griswold? Lawrence? The horror!

    Do right-wing yahoos sometimes forget they are impersonating libertarians? Is dropping the masquerade a signal for when conservatives get really excited?

  • Hank Phillips||

    Note to foreign readers: "John" is American slang for client of prostitutes, and is used by a Trump-voting republican (no non-working girl would have) to pollute these discussions with the foul emanations of superstitious corruption destructive of individual rights.

  • John||

    Go troll somewhere else you fucking imbecile

  • Rev. Arthur L. Kirkland||

    Your contributions are welcome, John. Authoritarian bigots have rights, too.

  • retiredfire||

    " Authoritarian bigots", from Kirkland?
    Talk about the pot calling the kettle, black.

  • Publius419||

    Reason? Who ever said Griswold, Roe, Lawrence (especially) or Obergefell were rooted in reason?

  • esteve7||

    Yup, so you don't like how he might rule, so instead of voting against him, lets ruin his life and slander him as a gang rapist and violent drunk frat boy.

    I mean at least the left here stops at that and doesn't yet resort to murdering people like their role models in the soviet union. Yet.

    Such a garbage ideology that deserves to end.

  • Longtorso, Johnny||

    #KillKavanaugh is trending on Twitter. It is an autocomplete search option.

  • Diane Reynolds (Paul.)||

    ELIMINATIONIST RHETORIC!

  • Longtorso, Johnny||

    We have to let the left do whatever it needs to in order to maintain its hold over the permanent government of judges and bureaucrats. Yes, they want to turn the country into a socialist hellhole, but they have the right views on immigration and abortion. Free minds and free markets and all that.

  • Rev. Arthur L. Kirkland||

    Such a garbage ideology that deserves to end.

    Your task is apparent.

    Make superstition-laced backwardness and old-timey bigotry more popular in a country that becomes less rural, less backward, less religious, less white, and less intolerant daily.

    Good luck, clingers!

  • Longtorso, Johnny||

    Opposition to Kavanaugh stems from a case that was decided the year Kavanaugh was born and was argued by professors from the law school from which he graduated.

    I thought it was due to credible accusations from the likes of her:

    Italian actress Asia Argento, who became a leading figure in the #MeToo movement, admits she had sex with young actor Jimmy Bennett

  • Derp-o-Matic 6000||

    I think it's clear by now Kavanaugh is part of Trump's nefarious scheme to get condoms outlawed nationwide.

  • Brandybuck||

    So did any of the senators on the committee actually ask him about Griswold? I saw a lot of hand wringing from the party of Kennedy about not letting Catholics into government, but I may have missed that part about Griswold. Please correct me if I missed it.

  • Just Say'n||

    No, they didn't because it's a fairy tale that Griswald will ever be overturned. This article is an exercise in not saying that "Roe" is the issue at hand by discussing Griswald.

    If we want to have an honest discussion about Griswald we need to begin with Buck v. Bell and Nazi war criminals citing the case in their defense that they did not commit crimes against humanity by sterilizing the mentally handicapped. The Supreme Court was shamed into its ruling in Griswald, because Buck v. Bell was such a horrendous ruling.

  • John||

    That is an excellent point. I had never really thought about it that way. But, I think there was definitely a feeling in the 1950s and 1960s that the Court was going to atone for some of its horrendous decisions in the past. And Bell might be the worst of them all.

  • Just Say'n||

    About ten years back, the last libertarian print publication Liberty, did a really good long-form piece discussing how Buck v. Bell led to Roe and it was masterful.

    If you go to libertyunbound.com they have Liberty's archives. That was a phenomenal publication

  • John||

    I will look that up. Thanks.

  • Dadlobby||

    I don't think it's one issue with the democrats, it's the whole Constitution which they want to make into a "living document", code for making it protect progressive "rights" like having an abortion or seizing firearms.

  • Ecoli||

    I think you are correct.

  • Jerryskids||

    Roe v Wade will be over-turned by the GOP majority just as soon as they get around to repealing Obamacare, slashing the budget, de-funding the Welfare State and axing the Depts of Education, Commerce and, uh, uh, another one I can't remember right now. Which is to say, Roe v Wade is settled law and for most Americans there's an uneasy truce on the issue of abortion but, damn, it sure does get the fringes riled up at voting time. A lucrative debate like that is never going to get settled because it's in nobody's interest to settle it.

  • AlmightyJB||

    Not to mention that the GOP doesn't give a shit about abortion. It's a useful topic for pandering for them and that is all. They don't want to pay welfare benefits for poor single mothers unwanted children.

  • Just Say'n||

    The Supreme Court will overturn Roe around the same time that Amash, who most definitely wants to cut any and all spending, stops voting "present" on bills to cut Planned Parenthood subsidies

  • John||

    That about covers it Jerry.

  • Publius419||

    You're right about Roe. It has long been 'settled' that Roe was bad law and contrary to the very essence of liberty secured to our posterity. Overturning Roe will simply restore the status quo, that is, the exercise of the will of the people through their representatives. If the People should ever elect to LEGISLATE access to murdering the unborn (unlikely), it will not result in the cultural upheaval we have seen the last 45 years because, like Britain, it will have been established by the People (Liberty) and not imposed on the by the courts (Leftist agenda).

  • Publius419||

    You're right about Roe. It has long been 'settled' that Roe was bad law and contrary to the very essence of liberty secured to our posterity. Overturning Roe will simply restore the status quo, that is, the exercise of the will of the people through their representatives. If the People should ever elect to LEGISLATE access to murdering the unborn (unlikely), it will not result in the cultural upheaval we have seen the last 45 years because, like Britain, it will have been established by the People (Liberty) and not imposed on the by the courts (Leftist agenda).

  • FreeRadical||

    God I hate modern constitutional thinking. Why did/does a right to privacy need to be "discovered"?

    Amendments 4, 5, 9, 10 cover it.

  • Rev. Arthur L. Kirkland||

    I'm still looking for the First Amendment exceptions involving defamation, pornography, anything deemed "obscene," child pornography, etc.

  • Juice||

    or insider trading, advertising, threats, etc.

  • Hank Phillips||

    Search the Comstock law signed by Grant in 1873. That one choked off individual rights--especially for women-- until after FDR unseated Herbert Hoover.

  • Libertymike||

    You probably just overlooked "hate speech." Right, Rev?

  • retiredfire||

    No, the commies like that exception.

  • Juice||

    Why didn't the SC find penumbras and emenations for Raich? Where's the penumbra in Rodriguez for being secure in your car against searches by a "trained" dug dog?

    I want my penumbra, dammit!

  • Hank Phillips||

    Stoll has produced the first intelligent article on the whole disgraceful standoff. Republicans, flush with the bloodlust of war, inflamed with Puritan outrage over Confederates making lascivious use of mulatto women and assisted by voter suppression in unreconstructed, tariff-loathing confederate states used the postal monopoly and Comstock laws to make suffering mandatory. But what of the 14th Amendment? All Persons born becomes a lot stronger than All Ova fertilized when backed by the decree that government splurging "shall not be questioned." Yet Republicans welcome suicide--postponed only by Democratic insistence on banning electrical generation via taxes exempting communist dictatorships and superstitious pseudoscience. This is truly a Mad Mad Mad Mad World!

  • Rich||

    "penumbras [and] emanations"

    Nice album name.

  • Juice||

    Only if it's by a jazz fusion quartet.

  • Procyon Rotor||

    If I were rewriting history to be as I preferred it, the 9th and 10th amendments, and the privileges and immunities clause of the 14th would be all any court ever needed to strike down damn near anything the governments want to do, state or federal. John's been on point in this thread. The SCOTUS has never wanted a government of strictly enumerated powers, or expansive freedoms for citizens. Instead they hand down tortured rulings like these to grant carefully circumscribed "rights" that match their preferred policy outcomes.

  • NoVaNick||

    So would a right to privacy interpretation mean that I can keep guns in my home if 2A is overturned? Would it also mean that I could grow or produce substances that the government deems illegal or controlled, so long as I didn't sell them to the public? How about if I want to access alt-right websites if 1A is overturned? Something tells me that those who scream the loudest about "a right to privacy" now, would have no trouble violating my privacy in these cases.

  • loveconstitution1789||

    If the 2A went away tomorrow, the government would not constitutionally be able to ban guns. There is nothing in the US or state constitutions that allow for banning products and services.

    You have a recognizd human right to protect yourself. The 2A is just a constitutional acknowledgement and protection of that right.

    Regulation is not banning. Government is allowed to regulate.

  • loveconstitution1789||

    With guns, the government cannot even regulate Arms as that would infringe of the right of the People to keep and bear Arms.

    This of course, requires The People to force the government to be strictly limited by the constitution...which we currently do not have.

  • Muzzled Woodchipper||

    No, opposition to BK stems from him having been nominated by Trump.

  • Duelles||

    Lawyers can certainly be evil in that the allow assholes to impose their penumbras and emanations upon those of us who cherish freedom. I suppose it can go the other way as well. Let's vote for stifling assholes.

  • aajax||

    Our Bill of Rights was an attempt to ensure many aspects of privacy. But of course it could not be exhaustive. So the authors included a catch-all which said the federal government had to respect all our traditionally observed rights except the ones specifically abrogated by the Constitution. It is no great leap to include contraception, since it is a widely practiced and ancient practice, as is abortion.

    I think a major test of privacy could come about if a method of extending human lifespan from about 90 years to several centuries were discovered. Obviously, such a discovery if applied on a large scale, or even if restricted to the very wealthy, could have a disastrous impact on society and the planet, far greater than that of contraception. There could be, and perhaps should be, a certain amount of pressure to outlaw use of such a treatment. What will we do then, I wonder? Does the right to private activity extend that far? And it could come about in the near future.

  • Publius419||

    It is self-evident that where light shines, shadow flee. Brett Kavanaugh will bring the light to critical mass at the Supreme Court and all the penumbras and emanations, or effluvium, whichever you prefer, from Judge Douglas will be cast into the dust bin of history along with generations of tyrants and murderers, like Hitler, Stalin and Mao, who have prevailed for a season only to be relegated to the hall of shame forever. May God forgive the sins of our nation and not give to us what he gave to Egypt and Herod who also slaughtered the children in their arrogance.

  • Publius419||

    It is self-evident that where light shines, shadow flee. Brett Kavanaugh will bring the light to critical mass at the Supreme Court and all the penumbras and emanations, or effluvium, whichever you prefer, from Judge Douglas will be cast into the dust bin of history along with generations of tyrants and murderers, like Hitler, Stalin and Mao, who have prevailed for a season only to be relegated to the hall of shame forever. May God forgive the sins of our nation and not give to us what he gave to Egypt and Herod who also slaughtered the children in their arrogance.

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