Today at 11 a.m. until 1 p.m. we shall stream "live" from the main library downtown. Ask at the Information Desk where we are. Our guest panelists will be Sheila Suess Kennedy and Karen Celestino-Horseman. Our topic will be Jurisprudential philosophy and the Constitution. (The phrase "jurisdictional philosophy" is redundant. "Jurisprudence" is the philosophy of law.)
How does one go about construing the Constitution? All of our participants on The Show today are lawyers. The non-lawyer might say: You learn that in the first day of law school, right? Wrong.
Until confirmation hearings on the nomination of the late Judge Bork to the United States Supreme Court in 1987. That was when I first learned of the concept of "originalism," a philosophy in which one looks to the original intent of the Framers of the Constitution to determine how a provision of the Constitution should be construed.
I shall disclose my bias against Judge Bork as a nominee to the Court. In 1973, after Attorney General Elliot Richardson and Deputy Attorney General (and Hoosier) William Ruckelshaus refused to fire Watergate Special Prosecutor Archibald Cox (because he had pressed for the famous Watergate tapes and Richard Nixon wanted Cox fired), those two men were fired by Nixon in what was called "The Saturday Night Massacre." Next in line to whom the order was issued was now-Acting Attorney General Bork. He agreed to fire Cox.
Bias aside, I did not understand how anyone could be serious about originalism. The more I have read and thought about that philosophy, the more I think it is "bunk." I have blogged about that this week. You may read my thoughts there.
So how do we construe a provision of the Constitution?
I phrased that question so as to indicate the Constitution is not construed in toto. Only a case in controversy can receive the attention of a court. A specific case might place at issue several provisions of the Constitution. The case does not exist in a factual background.
So let's turn to the "right to privacy." Where does that appear in the Constitution? As early as 1890, Samuel Warren and future Supreme Court Justice Louis Brandeis wrote an article for the Harvard Law Review entitled "The Right to Privacy." 4 Harv L Rev 193. Writing in dissent, in Olmstead v. United States, 277 U.S. 438 (1928), Perhaps the most famous formulation of the Right to Privacy was set forth by the Court in Griswold v. Connecticut. 381 U.S. 479 (1965). In that case the Court struck down a Connecticut statute that prohibited dissemination of information related to birth control. Writing for the Court, Justice William O. Douglas wrote there is a right to privacy. "...specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." Justice Goldberg, in concurrence, went further and wrote: "To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever."
How did the Court get there? A Connecticut state trial court found a Yale professor guilty of talking about birth control. The lawyers at the trial level looked at the statute under which she was prosecuted---to make sure the acts described were covered by the statute. Then came the constitutional analysis. By the time the case reached the Court, the question became one of privacy.
Did the Framers believe a Right to Privacy is contained in the Constitution? Aspects of privacy are protected by the Fourth Amendment and its restrictions of "unreasonable" searches and seizures in the home. What more do we know of the Framers' intent? By 1965 mores had changed. Also, the Fourteenth Amendment was ratified after the Civil War. The 14th led to "incorporation" of rights not previously extended from the Bill of Rights as against States' actions.
What right could be more important than the right to be left alone by the government, be it State or Federal?
Griswold was handed down 75 years after Warren and Brandeis's article. That article was published only 25 years or so after the 14th Amendment was ratified. Griswold now has been the law of the land for nearly 50 years.
Join us today for a discussion of jurisprudence and the Constitution.