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

The SCOTUS nominee talks unenumerated rights.

C-SPANC-SPANIn 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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  • JeremyR||

    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

  • Jgalt1975||

    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.

  • KBeckman||

    Pretty sure I don't need a prescription for condoms...

  • IceTrey||

    You can buy the morning after pill OTC.

  • IceTrey||

    Mmmmhmmm.

  • Philadelphia Collins||

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

  • Michael Hihn||

    WOW! The potential for abuse has always been there. That's why David Nolan created the Chart to close all the loopholes. But folks like Ron Paul finally exposed and wriggled through the loopholes and potential abuse.

    He did not initiate force when he said "rogue judges" overturned DOMA. He rejected the 14th Amendment, balance of powers, three co-equal branches and judicial review. But not the PRIME principle.

    He did not initiate force when he sponsored a bill to forbid SCOTUS hearing ANY appeals to DOMA. Congress may, of course define the Judiciary's jurisdiction, but did the founders imagine, in their worst nightmares that anyone would EVER try to strip one small group of their right-to-defend-their rights? Has ANY group been targeted like that since ... slavery?

    Ron did not INTEND to enable even the most hate-filled homophobes in America. He was following a higher power.

    The fatal flaw in DOMA? It enables and empowers the Authoritarian MIND. But that's okay, as long as force is not initiated, Right?

    "Mass movements do not need a god, but they do need a devil. Hatred unifies the True Believers."
    -Eric Hoffer, The True Believers (1957)
  • Diane Reynolds (Paul.)||

    Does everyone agree on what privacy means?

  • Rational Exuberance||

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

  • SomeGuy||

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

  • Michael Hihn||

    Does everyone agree on what privacy means?

    Does everyone agree on what ANYTHING means?
    That's why our Founders, in their wisdomm created checks and balances among three co-equal branches.
    If you mean the issues in this Reason post. That is the job of SCOTUS.

    Do you have an alternative? How would you amend the Constitution?
    Thanks in advance for any answer.

  • Bubba Jones||

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

  • Bubba Jones||

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

  • Brian||

    Why do you want condoms banned, you asshole?

  • Longtobefree||

    To protect the children, of course.

  • EscherEnigma||

    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.

  • EscherEnigma||

    Damn auto correct. "Onan's sin", not "Obama's sin"

  • mgd||

    Probably Obama's as well, considering the alternative...

  • IceTrey||

    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.

  • SomeGuy||

    this.

  • Sevo||

    "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.

  • Michael Hihn||

    For fucks sake the Constitution does not grant any rights

    No, the Constitution does not 'grant' free speech to KORPARASHUNS(!)

    Who said otherwise. Not sure why you repeated Tony's identical thought ... when his was more definitive,
    Oh, it was Tony. Nevermind.

  • Brian||

    I don't mind the unenumerated rights as much as the unenumerated powers.

  • Juice||

    This.

  • Michael Hihn||

    So you oppose Natural Law, the concept of unalienable rights and our core founding values.
    In which part of North Korea do you reside?

  • Pompey:何 Class Mothersmucker||

    Gaze upon mendacity, for it is embodied before you.

  • Michael Hihn||

    It's crackers to slip a rozzer, the dropsy in snide.

  • Mesteve||

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

  • Michael Hihn||

    Confirmed by the 9th Amendment!

  • Johnimo||

    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 ....

  • Michael Hihn||

    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

    LOTS of loopholes there, which is why David Nolan created the Nolan Chart. Force is not the only way to deny the rights of targeted others
    1) Allows marriage inequality
    2) Many other laws that impose bigotry (without force)
    3) Can target a group and deny their right to defend their rights

  • GroundTruth||

    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.)

  • Michael Hihn||

    Adding to your analogy, corporations aren't people but its shareholders are.
    Cars aren't people either, but THEIR owners are too,

  • Michael Hihn||

    To me it's scary that he doesn't seem to acknowledge the 9th Amendments very explicit denial to ALL levels of government ANY power to deny and even disparage ANY fundamental rights. Jefferson's unalienable rights

    Conservatives will, of course, "forger" their "strict constitutionalism" which explicitly forbids any power regarding abortion -- only the obligation to acknowledge and adjudicate it as an issue of conflicting fundamental rights,

    Yeah, penumbras and emanations were dumb words to use .. until one checks what they mean!
    Penumbra has been used in several federal decisions since 1871.
    Emanations is even easier, if superfluous, when the decision is actually read. The 9th should have been enough, but big government cannot allow the most powerful restriction to be actually enforced. Douglas specified multiple instances where a right to privacy is implied but not actually stated. Quite powerful, which may be why extreme socons are so eager to misrepresent it.

  • PantsTheEmperor||

    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.

  • μ Aggressor||

    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

  • Longtobefree||

    "I have no recollection of those events as you have described them, Senator."

  • netizen||

    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.

  • Michael Hihn||

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