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Thursday, August 11, 2005


"Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

Justice Kennedy, writing for the majority in Lawrence v. Texas, 539 U.S. 558 (2003).

Although the Constitutional right to privacy may not seem like it has much, if anything, to do with the war on corporate evil, it does. Corporate power is not directly increased by the assault on the right to privacy. Yet the Corporatist Republican Party feels that it has much to gain by attacking the right to privacy. As we know by now, when the Corporatist Republicans are helped, so are the Corporations.

First, to do so riles up the hard right Religious core of their base. Most of these people are poor and have nothing to gain by voting Republican. The Corporatist Republicans, however, have convinced these people to join their side by becoming the leader in discriminating against gays. Many of these poor Corporatist Republicans dislike gays because they feel it threatens their religion; indeed many of these people may not care about gays one way or the other, but feel the need to discriminate against homosexuals because that is the message preached at their church. Some of these people are simply helpless bigots. I would suspect a high number of the anti-homosexual crusade are themselves closeted gay people who deal with their homosexuality by despising it.

Second, the Corporatist Republican party has an interest in ensuring that the rights of the people remain as limited as possible. The so-called "Constructionist" movement is really an attempt to prevent any social change from taking place through the law. I will detail the fallacy of "Constructionism" in a moment, but the reality is that the duty of courts is to interpret the law and fill in the inevitable gaps. The role of the judiciary is not as an "enforcer" of law -- that is for the executive branch. By cutting off the judiciary's ability to implement social change, the Corporatist Republicans will succeed in making the legislative and executive branches into the only way in which to implement change. Since those 2 branches are firmly under Corporatist Republican control (and they don't intend to ever give up that power -- I'll return to this in a future post), disarming the judiciary is a way to ensure that Corporatist Republicans make all the decisions in this country. Even though the judiciary is becoming more conservative with each passing day, the reality is that judges are far more independent and uncontrollable as compared to their Corporatist Republican counterparts in Congress and the Presidency.

With all this in mind, it should come as no surprise that the National Association of Manufactuers, the largest industrial trade association in the United States endorsed John Roberts for the Supreme Court. Never before had this organization endorsed a Supreme Court nominee, but in this new era of government by the Corporations, the endorsement isn't even news. The President of NAM, Republican John Engler who was once the Governor of Michigan, perfectly stated the oft-repeated lie constantly perpetuated by the Corporate Right as they attempt to redefine the role of the judiciary: "Roberts' record as a judge and attorney indicated he would interpret the law as written and not legislate from the bench." This is a radical mindset.

A. THE ROLE OF THE JUDICIARY (as told by the "mainstream")

Mainstream jurisprudence, as reflected in the quote by Justice Kennedy, is that not all of the rights guaranteed by the Constitution are enumerated in the document. The Supreme Court first recognized the right to privacy in the Griswold case. Part of the Due Process clauses of the 5th and 14th amendments is that "liberty…cannot be deprived without due process of law." The concept of substantial due process emerged from the recognition that there are certain spheres of liberty that the government simply has no place in. The due process clause ensures liberties such as the right to privacy.

This makes intuitive sense to most thinking Americans. We all want and need the right to privacy within our homes. The Constitution implies that a right to privacy exists in several of the amendments to the Bill of Rights, but it is never enumerated. So-called "Constructionists" claim that if a right is not mentioned in the Constitution, then it is not protected by the Constitution. That only makes sense if you completely ignore the 9th amendment which clearly states "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The right to privacy is clearly and obviously a right we all believe we hold, all want to hold and in fact do hold. The 9th amendment was written precisely to defeat arguments by future generations that certain rights didn't exist because they were left out of the Constitution.

Not only are most people in agreement, most Republicans are apparently in agreement as well that a right to privacy exists. 7 of 9 members of the Supreme Court were appointed by Republicans; the majority of those 7 believe in a right to privacy. That is where mainstream jurisprudence lies.


So where does Roberts lie? The Corporate Media as well as their Corporate Republican allies have mostly treated John Roberts as a "mainstream conservative." That phrase is being used everywhere you look on TV. Is it true? Not even close. Mainstream conservatives are people like Justice Kennedy -- who despite their want for small government and distrust of the welfare state, recognize that the Constitution gives us liberty, not specific, detailed rights. John Roberts, on the other hand, is a radical, hard right ideologue who prefers to ignore the liberty granted by the Constitution. Conservatives argue there is no proof that Roberts does not believe in the right to privacy. The proof is circumstantial, but then again so was the proof that O.J. was guilty. From a1981 brief authored by Roberts while working as Ronald Reagan's solicitor general:

"The mischief began 40 years ago in the case Griswold v. Connecticut, when the Court struck down a prohibition on contraceptives on the basis of a "right to marital privacy." The bit about "marital" was quickly dropped, and the new discovery became a general right to privacy.

. . . If Connecticut's contraceptive law was outdated and purposeless, the answer was simple: for voters to overturn it. Both the dissenters in the case, Justices Hugo Black and Potter Stewart noted that they opposed the Connecticut policy, but that didn't make it unconstitutional. . . . The Supreme Court won't return to its proper, limited role in American governance until it does the same with the mythical "right to privacy."

First, "bit about 'marital' was quickly dropped because the Equal Protection clause of the 14th amendment guarantees that married couples and single people should have the same rights. Roberts convieniently leaves that part out.

Second, he refers to the right to privacy as "mythical". Clearly, he does not believe it exists or he would not refer to it as "mythical". Now the Corporate Media doesn’t miss an opportunity to point out that lawyers write briefs for their clients, not themselves, and their personal opinions do not always match up with the work they produce for their employer. That's very true. However, John Roberts was not your average lawyer in 1981 and to treat him as such is ludicrous. First, he was working for a conservative Republican White House. They hired him because he shared their beliefs. His position as deputy solicitor general meant that he played a large role in choosing which cases to appeal. Second, a lawyer's personal opinions often shine through an otherwise objective piece. If Roberts believed in a right to privacy, he would never have referred to it as "mythical". Even if he was directed against his wishes to write a brief arguing against the constitutional right to privacy, he wouldn't use such inflammatory language unless he believed that way. Referring to the right as "mythical" didn't further his legal argument in any way. All it did was allow that personal opinion to shine through.

Further, only a lawyer would parse words and argue that even though Roberts called the right to privacy "mythical", that he somehow didn't believe it. The common man in America is not so stupid. It's facially obvious that Roberts considers the right to privacy "mythical" and as such he represents an extremist wing of the Republican party, not the "mainstream".

Roberts later took a position as ahigh-ranking Justice Department deputy under Bush 41. He again flexed his extremist muscles when he argued that protestors' blockades of abortion clinics were an exercise of free speech which did not discriminate against women. First, they obviously discriminated against women. Men aren't getting abortions so they weren't effected by these blockades. This is so obvious that I feel stupid even typing it, but apparently I must because Roberts somehow argued that it didn't. Second, abortion is a medical treatment. Would Roberts say that blockades of chemotherapy clinics were an exercise of free speech? No, and those blockades wouldn't even discriminate against women. Signing off on a legally dubious brief such as this shows that 1) he lacks the mental capacity required for the Supreme Court or 2) he is willing to twist and manipulate the law to fit his beliefs. Option 2 is the more likely one, but either option means that he has no place on the land's highest court.

The solution is simple. Each and every Democrat at Roberts' confirmation hearing must ask him as their first question: "Do you believe the Constitution guarantees a right to privacy?". If he refuses to answer, every Democrat should keep asking the same question. Further, unless he answers in the affirmative, any Democrat who would still vote for him would be selling out the American people and their party. The right to privacy is the constitutional justification for a woman's right to choose, but its' reach extends far beyond that one issue. If lost, it would signal the erosion of other rights as well as other privacy issues, such as contraceptives, that we take for granted.

John Roberts is an extremist, out of the mainstream, hard right conservative. Should he be appointed to the Supreme Court, he will join with Scalia and Thomas to form a new, powerful, hard-right block on the Court that will remake the law in their own radical image.

Comments on ""


Anonymous Anonymous said ... (1:56 AM) : 

Roberts said that he does believe in a constitutional right to privacy in his confirmation hearing


Blogger Michael Alexander said ... (1:18 PM) : 

So did Clarence Thomas in his confirmation hearing. Roberts refused to acknowledge a "general" right to privacy exists when questioned by Sen. Schumer, which was consistent with Thomas' approach in Lawrence v. Texas. Instead of taking the politically unpopular stance of denying a right to privacy, the new GOP strategy seems to be to acknowledge that one exists but limit it greatly. Note that Roberts said Griswold was a good case -- where the right to privacy was established -- but not Roe v Wade, which extended the right to privacy to abortion.

For all intents and purposes, Roberts does not conceive of the right to privacy in the same way the the Roe court did, at the very least.


Anonymous Anonymous said ... (6:04 PM) : 

I agree. He thinks there is a fundamental right to privacy in the constitution, but he probably doesn't think it extends all the way to the Roe court's interpretation. I just don't think he's as radical as you make him out to be, in any case he mopped the floor with the democrats on the judiciary committe during the hearings, he should be confirmed 75-25.


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