At Saturday’s Republican presidential debate, ABC’s George Stephanopoulos hounded the candidates on the issue of contraception as decided in the 1965 case, Griswold v. Connecticut. It was an odd, partisan attempt to distract Republican candidates from their larger message of saving the country from the disastrous Obama presidency.
We’re headed toward a $16 trillion debt, and George is fixated on condoms. Perhaps it was leaked that President Obama plans to campaign with a promise to appoint a contraception czar.
Griswold drives many conservatives crazy because Supreme Court Justice William O. Douglas’ majority opinion relied on what he called constitutional “penumbras” in striking down a state law forbidding the sale of contraceptives, even to husbands and wives.
Conservative are fond of saying, “What in the world is a constitutional penumbra?” We see that term as an example of judicial activism, creating constitutional rights out of whole cloth.
Stephanopoulos’ questions, though, certainly made a few people go back and read the Griswold decision. There we find a marvelous concurring opinion written by a surprising source, the liberal Justice Arthur Goldberg.
The Goldberg opinion relies on the Ninth Amendment, not penumbras, to discuss the right of marital privacy. The Ninth Amendment says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Ninth Amendment was drafted by James Madison. He would not agree to supporting the Bill of Rights without its inclusion.
Goldberg explained that some founders feared, correctly, that inclusion of some enumerated rights in the Bill of Rights would be used by government to trample the exercise of other rights not expressly stated and protected.
Who among us — conservative, liberal, moderate — doesn’t believe there is a right to be left alone from government dictates and intrusion into matters that harm no one — a right of privacy, so to speak?
This right to be left alone from Big Brother is especially crucial in the context of decisions about family and property, raising and educating our children, and our individual eating, health and medical choices.
In the context of “[t]he entire fabric of the Constitution,” wrote Goldberg, the Ninth Amendment denotes the unique importance of “the right … to marry, establish a home and bring up children. …”
Goldberg was careful to note that the Ninth Amendment does not create a judicial free-for-all. It does not “constitute an independent source of rights.”
He continued: “[J]udges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the ‘traditions and [collective] conscience of our people’ to determine whether a principle is ‘so rooted [there] … as to be ranked as fundamental.’ ”
That sounds pretty conservative coming from a labor lawyer who was a member of President Kennedy’s Cabinet before being appointed to the Supreme Court, no?
Goldberg noted, “Adultery, homosexuality and the like are sexual intimacies which the State forbids … but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which, always and in every age, it has fostered and protected.”
Stephanopoulos had a mischievous agenda in bringing up the Griswold case. Candidates for president can hardly be expected to have read concurring Supreme Court opinions.
Instead of being miffed at Stephanopoulos, though, conservatives may want to send him a thank-you note for the reminder of the importance of James Madison’s Ninth Amendment to the “entire fabric” of the Constitution.
Mark J. Fitzgibbons is co-author, with Richard Viguerie, of “The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society’s Biggest Lawbreaker,” available at ReclaimtheConstitution.com.
