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Alito on the Right to Privacy:
More interesting stuff from Alito's meeting with Senator Durbin:
  Supreme Court nominee Samuel Alito Jr., meeting with lawmakers on Capitol Hill, told one senator that the U.S. Constitution guarantees a right to privacy and won praise from Democratic Senator Ben Nelson of Nebraska.
  Senator Richard Durbin, an Illinois Democrat, said Alito told him in their meeting that he recognized a right to privacy, the principle that underlies the Supreme Court's abortion rights rulings. "I think he believes in that fundamental right," Durbin told reporters in Washington. . . .
  Thanks to HJB for the link.
CrazyTrain (mail):
It's so funny that conservatives are so proud of their legal positions that they have to point out to everyone that their judicial nominees support landmark "liberal" and "activist" cases.
11.3.2005 1:12am
JB:
Right to privacy...except from your husband.

What exactly does he mean by "right to privacy"? The problem with that right (apart from the question of whether it's in the constitution) is that it's definitionally nebulous--it could mean a great deal or could mean next to nothing, depending on how one construes "privacy." If the right to privacy does not preclude spousal notification for abortions, then it's essentially a defense against state intervention, not a defense of personal sovereignty, which is a very important philosophical distinction.
11.3.2005 1:29am
Oh my word:
He's throwing them the Griswold bone for political reasons, I think, just like Roberts did.
11.3.2005 1:58am
Cornellian (mail):
What exactly does he mean by "right to privacy"? The problem with that right (apart from the question of whether it's in the constitution) is that it's definitionally nebulous--it could mean a great deal or could mean next to nothing, depending on how one construes "privacy."

Yep, pretty nebulous, sorta like "due process" or "privileges and immunities", "unreasonable search", "free exercise" or any of those unenumerated rights lurking in the 9th Amendment (maybe privacy is even one of those rights). One can certainly argue that there is no general right of privacy from government intrusion in the Constitution because the Constitution does not explictly provide for such a right but if "definitionally nebulous" made recognizing the right problematic (or the extent of the right), then that same objection could be applied to any number of rights in the Constitution.
11.3.2005 2:20am
Medis:
Oh my word,

Or maybe he is just honestly describing his views.
11.3.2005 5:27am
Josh Jasper (mail):
Somehere, Dobson is sobbing like a abtterd wife who keeps coming back to his beloved beatings.

"I thought this time they really meant it *sob* that they'd overturn Griswold and Roe. *sob* I keep think ing I can change them. If only I was good enough, or got him enough votes *wail*"

The real question is, when will the religious right realize that the WH is playing them for fools?
11.3.2005 6:59am
Challenge:
Roberts handled the "privacy" question with skill. Alito might have trouble doing the same this time around, however.

Jasper, we will see if the WH has used social conservatives or not within a couple of years. If they have, I think the Republican Party is in for a BIG shake up in 2008.
11.3.2005 7:43am
Jam (mail):
When a woman marries she is agreeing to a relationship that involves, at least, the probability of procreation. To say that the husband has no interest in the baby, yes it is a baby, is to render what marriage is meaningless. If a woman wants privacy DO NOT MARRY! Sam for the man.

Isn't the non-disclosure of infertility a cause for divorce?

Control/regulation of our right to privacy is not delegated to the government by the uS Constitution but when people marry privacy is VOLUNTARILY surrender to each other.
11.3.2005 8:46am
Anon7:
If you want to watch the GOP go down in flames, have Alito and Roberts strike down Griswold and declare that Americans have no right to privacy. 95% of independents and probaby 50% of Republicans would turn away from the GOP. It would be the best thing to happen to Democrats since JFK.
11.3.2005 8:49am
Jam (mail):
I am part of the "religous right" and I finally figured out that the GOP were playing us for fools about 8 years ago. The precursor was National Review's editorial shift, which prompted me to cancel my subscription (of 10+yrs).
11.3.2005 8:58am
DJW (mail):
Okay, looks like we're all -- left, right, and center -- agreed that there either is a right to privacy in the constitution or that there ought to be one. So why not make it explicit with a constitutional amendment expressly granting the right? What would such an amendment look like?

I suspect that such an amendment would help to move the direction of both judicial appointments and political debate in the country out of the present trap, where real discussion is clouded in code, misdisrection, and smoke signals from Colorado Springs.
11.3.2005 9:14am
BigBob:
Roberts handled the griswold quesiton with skill???

He said he "agreed" with Griswold -- that it was "correclty decided," though we would have given a different rationale. This is an endorsement of Griswold, not a skillful avoidance of the issue. For other cases -- like Eisenstadt -- he merely said "I have no quarrel" -- which is vague. And for others - like Roe -- he just said it was precedent entitled to respect (even more vague). So it seems that Roberts AGREES with the outcome in Griswold.

As for Alito, some senator said yesterday that Alito agreed that privacy was an "unenumerated right" guaranteed by the Constitution. Two things -- (1) if Alito said "unenumerated," that's different from Roberts, who insisted that the right was enumerated (because it was a component of "liberty"). (2) If he said "unenumerated," that means he was referring to something broader than 1st and 4th amendment rights, which are enumerated.
11.3.2005 9:17am
Challenge:
Striking down Griswold, how? What case would ever come before the Court to allow for that? Not to mention Roe and Griswold are about as distinquishable as they come....
11.3.2005 10:01am
Challenge:
"Roberts handled the griswold quesiton with skill???"

The privacy question. He said he aggred there is a right to privacy and then listed all the amendments that protect privacy in "various ways." It was skillful and I couldnt find anything to disagree on, but it fooled the Dems. They didn't know what to do.

I did not, however, like his comment about substantive due process on Griswold. But how is he ever going to be tested on that? He is basically saying that procreation within marriage is a fundamental right deeply rooted in our nation's history, and it's hard to argue with that.
11.3.2005 10:05am
Jack John (mail):
JB: If the right to privacy does not preclude spousal notification for abortions, then it's essentially a defense against state intervention, not a defense of personal sovereignty, which is a very important philosophical distinction.

What the %$#@ is "personal sovereignty"? And if persons have sovereignty, why not the United States of America? I bet you unfailingly support the kakistocracy that is the United Nations, you John Bolton-hating latte-sipper. Go Kyoto yourself.
11.3.2005 10:06am
Markusha:
I would not make much of Alito's belief in privacy. As many here noted, the right to privacy is very vague. Even Judge Bork stated that he believed in privacy, and we all know what kind of "privacy" he believes in.
11.3.2005 10:13am
J..:
Wow.
11.3.2005 10:15am
Houston Lawyer:
A right of privacy sounds nice but is meaningless. Would it allow doctors not to report gunshot wounds? Can you plan terrorist acts in the privacy of your own garage? Can you smother your baby in the crib? Can you sexually assault your wife in your own bed? Or closer to the line, can you acquire birth control pills that haven't been approved by the FDA?

One of my law professors, Lino Graglia, once proposed a hypothetical law that "everyone be treated fairly". Who could argue against that?
11.3.2005 10:27am
BigBob:
Houston Lawyer,

Um, what are you talking about? By your standards, all rights are meaningless. Anybody can play your game of "logic." Does the First Amendment protect your right to say "give me your money or I'll kill you"? Does the Equal Protection Clause prohibit public universities from favoring qualified professors over underqualified professors? Even though it's ridiculous to apply some rights to some contexts, it doesn't make the rights meaningless. We engage in line drawing all the time.
11.3.2005 10:31am
BigBob:
question -

the report that alito wrote as an undergraduate says that the committee of students "unanimously" agreed that privacy was fundamental and needed to be protected on many fronts. was alito just an advisor to the group, such that the word "unanimously" doesn't indicate his agreement? or was he a member of the committee, such that "unanimously" does indicate his support?

(please don't respond by telling me that undergraduate papers mean nothing. that's a separate debate, and you have a point.)
11.3.2005 10:33am
David M. Nieporent (www):
BigBob -- A "right to privacy" may not be meaningless, but the statement that one recognizes it and endorses it is, because it can mean whatever the speaker wants it to mean.
11.3.2005 10:39am
JB:
Jackjohn: I'm not a lawyer. Please excuse my possible misuse of terms. I was distinguishing between rights we hold against the government(i.e, against unreasonable search and seizure) and rights we hold against other private citizens(i.e, not getting robbed).
11.3.2005 10:40am
Antinome (www):
I strikes me that no one is asking the the right question exactly of Alito. What I want to know is if he agrees with Scalia and Thomas that a judge cannot "enforce" and unenumerated right. For example in his dissent in Troxel Scalia said


I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.



Thomas in his concurrence said:


I write separately to note that neither party has argued that our substantive due process cases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights under that constitutional provision. As a result, I express no view on the merits of this matter, and I understand the plurality as well to leave the resolution of that issue for another day.



I have found no sign in anything I have read about Alito that gives much insight into whether he shares this view with Scalia and Thomas. This is a question that really needs to be asked. (and if the Democrats are smart they will ask it in reference to Troxel which is parents rights case not a privacy case, the unenumerated right most dear to a segment a part of the conservative base)
11.3.2005 10:48am
Jam (mail):
Antinome: Woa. I have been painfully aware of Scalia's and Thomas' (and Bork's) "diversions" from their so called conservative jurisprudence but, man, I was not aware of what they wrote in Troxel.

Unenumerated rights are, by default, delgations to the government?

The living Constitution is a dead letter.
11.3.2005 11:17am
Gordon (mail):
The right to privacy isn't the only extra right that has been found by the Court in its history. What about the right to educate one's children as one chooses, found by that paragon of modern jurisprudence, James McReynolds, in two decisions during the 1920's? What about Lochnerish economic rights, which are making a revival in some conservative circles? What about the right to live with one's extended family, found in the East Cleveland case? I doubt if James Dobson or any other of the right to privacy opponents would want these rights flushed down the toilet.

It's actually quite easy, in my opinion, to distinguish a fundamental right to privacy, as in Griswold, with the right of a woman to have an abortion. It comes down to whether you think the fetus inside the woman is a person, or at least at what stage of development that fetus is a person. Once that threshold has been crossed, it seems more than a bit ridiculous that the right to privacy trumps murder.
11.3.2005 11:40am
Lab:
The right to privacy means that women are
not governmet-regulated incubators.

Next the fundamentalists will suggest that police investigate miscarriages for manslaughter and criminal negligence.
11.3.2005 12:09pm
Anon7 (mail):
I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.


Short translation from Scaliaese to Borkian: "The 9th Amendment is a mere inkblot."
11.3.2005 12:26pm
Gordon (mail):
Lab: Do you believe that a woman has a right to have an abortion when she is one week overdue?

Such a position is, to me, just as ridiculous as the polar opposite claiming that an IUD is impermissible because it interferes with an implanted egg.

The abortion argument, on both sides, is a classic example of the ridiculous, perhaps tragic consequences of a uniform and uncompromising legal or moral philosophy.

Perhaps that's why I think the nation will really miss Justice Sandra Day O'Connor - anyone who can drive legal and moral purists on both sides of an issue crazy with loathing and disgust is all right in my book!
11.3.2005 12:34pm
cfw (mail):
Claiming to support Griswold could mean simply the right to buy contraceptives. Not a major concession.

I am not terribly troubled by the spousal consent provision upheld by Alito because of the way he upheld it, and the massive loopholes in the statute he upheld. As I understand the law, all the woman had to do was say in writing theat she informed her spouse or one of the broad exceptions. Not a practical impediment, like having to go to a judge and get an order allowing an abortion. I agree that the spouse has no right to say no to the abortion, and prefer the USSCT conclusion that it "did not want to go there" but I do not see Alito as obviously way out of line.

When do we hear from (or about) Alito concerning CIA detention facilities abroad that seem obviously designed to facilitate what US law would call conduct that shocks the conscious (denying procedureal due process)? Maybe we can ask about what shocks Alito's conscious? What difference it makes if the shocking conduct occurs overseas? What difference it makes if foreigners are the abused ones? What difference it makes if Bush says he has a war on terror to wage?
11.3.2005 12:53pm
Jam (mail):
With few exceptions, women allow themselves to be used as "incubators," and not by the government. And by virtue of being females, they are incubators, albeit the term is distasteful used in this way. I prefer the term: mother.

If you start at birth, was it a baby:
3 minutes before birth?
30 minutes before birth?
30 hours before birth?
30 days before birth?
30 weeks before birth?
etc
11.3.2005 1:12pm
Medis:
Jam,

Some people would say "yes, yes, yes, yes, no."

Although personally, I think the right answer is "from conception to birth, it is gradually becoming a baby."
11.3.2005 1:30pm
Jam (mail):
How small a resolution in the time decrements do we want to use to find the point at which it is not a baby? At no point it is something other than a baby, regardless of morphology. I am glad that we are walking side by side most of the way.
11.3.2005 1:52pm
John T (mail):
Certainly Casey itself acknowledges that the state has a legitimate interest in protecting the life of a viable fetus. One doesn't have to reject the right to privacy to believe that the interest in the right of the fetus trumps it after a certain point in the pregnancy, either. (This is one of the problems with finding many rights in the Constitution-- they'll eventually conflict. People who only find few rights have an easier time allowing those rights to be absolute.)

Most European countries have stricter, week-based laws banning abortion after a certain time that would apparently be struck down in the US. It wouldn't be surprising for the US to move in that direction, without ever explicitly overturning Roe or Casey. Casey itself leaves a loophole for improving technology pushing back viability.
11.3.2005 2:11pm
Dustin (mail):
the Constitution does not afford us any rights. We are guaranteed freedom for everything that the constitution does not expressely allow the Government to impinge upon because the Constitution limits Government, not people.

Um. I wish.
11.3.2005 2:23pm
Jack John (mail):
I was distinguishing between rights we hold against the government(i.e, against unreasonable search and seizure) and rights we hold against other private citizens(i.e, not getting robbed).

It's a false distinction. Whenever the government expends resources protecting you from other citizens (i.e., robbers) it is bound to make errors (i.e., search and seize innocents) and other citizens are bound to object (i.e., robbers who claim their innocence). The rights you have against the government are inseperable from the rights you have against other citizens because the duty to protect is basic to the State and its funding source is unitary.
11.3.2005 3:20pm
Medis:
Jam,

I actually don't think anything much depends on terminology. When it comes to scientific matters, we can talk about processes acting over time, or a snapshot of attributes at any given moment. But as long as we more or less agree on these facts, it doesn't seem to matter what terms we use when talking about those facts.

The contentious issues are the moral ones. But again, what really matters are the moral implications, not what terms we use when talking about those facts. And it is precisely with respect to the moral implications that people disagree.
11.3.2005 4:06pm
Jam (mail):
Terminology? I just asked, when following a regression in time, starting at the baby's birth, when does the baby ceases to be a baby?
11.3.2005 4:34pm
KenB (mail):
How small a resolution in the time decrements do we want to use to find the point at which it is not a baby?

This is essentially just the Sorites Paradox; see here, for example. Say there's a pile of sand on the table. If you take away just one grain of sand from the pile, what's left is still a pile, right? So taking away just one more grain of sand won't stop the remainder from being a pile either, and so forth. By following this logic, eventually you're left with a "pile" of just one grain of sand on the table.

So are you saying that one grain of sand is a "pile" of sand because you can't specify the exact border between "pile" and "not-pile"?
11.3.2005 4:52pm
Jam (mail):
Ahh, interesting. You are arguing about a "pile" and I am arguing about "sand." So it is not about vagueness but about ontology or essence. You see, sand is sand, whether in a pile or in a single grain.
11.3.2005 4:58pm
KenB (mail):
You are arguing about a "pile" and I am arguing about "sand."

Well, perhaps you are now, but you weren't before -- you were suggesting that one can't believe that a fetus is something other than a baby because one can't point to an exact moment when the transformation takes place. At least have the decency to acknowledge that the argument you were making was flawed -- it doesn't mean that you necessarily have to abandon your whole thesis.
11.3.2005 5:38pm
John Thacker (mail):
So are you saying that one grain of sand is a "pile" of sand because you can't specify the exact border between "pile" and "not-pile"?

Well, people argue that a judicial branch is rarely the correct branch to make the sort of determination of exactly when a "not-pile" becomes a "pile," especially since it's likely to look different in all sorts of specific cases, and that doesn't lead to any sort of predictability in the law.

But again, what really matters are the moral implications, not what terms we use when talking about those facts. And it is precisely with respect to the moral implications that people disagree.

Well, terminology has been shown to make a substantial difference in polling. Scientific facts can make a bit of difference as well-- certainly some people are ok with banning abortion after a certain week but think that abortion is fine before a certain time. Those people are the swing group, and they can show up on all sides of abortion polls depending on phrasing.
11.3.2005 5:39pm
Shelby (mail):
Jam:
42 days, 13 hours, 7 minutes and 19 seconds before birth. But that's actual birth, not average-duration-of-pregnancy. Does this help?
11.3.2005 5:47pm
Shelby (mail):
John Thacker:
a judicial branch is rarely the correct branch to make the sort of determination of exactly when a "not-pile" becomes a "pile,"

The judicial branch is the best to determine whether any given collection of sand is in fact a "pile". It is not well suited to determine as a general matter when a pile ceases to exist as such.
11.3.2005 5:52pm
kenB (mail):
people argue that a judicial branch is rarely the correct branch to make the sort of determination of exactly when a "not-pile" becomes a "pile,"

The question of who (among the federal legislature, the state legislature, the judiciary, the individual) should be entitled to make the decision at any particular stage of fetal development would make for an interesting discussion, if one could ever find interlocutors who would remain calm, reasonable, and open-minded throughout the conversation. I don't think an open forum like this is the best place for such a discussion, though -- I just popped in to mention the Sorites Paradox.
11.3.2005 9:19pm
Jam (mail):
Shelby: Thanks for the precision. I was just using symmetry, for literary purposes, the 3 and 30s.

I do not think that I was making a flawed argument. My point being that it is a baby, at all points in time. A big grain of sand to a smaller grain of sand? Still a grain of sand. An inflated basketball to a deflated basketball, still a basketball?

I really enjoyed that Sorities Pradox. I think that it will stay with me henceforth.
11.4.2005 9:08am